Sarah M. Block
Fri., October 31, 2025
In a recent opinion letter (FLSA2025-03), the U.S. Department of Labor’s Wage and Hour Division clarified a key issue affecting tipped workers: whether certain oyster shuckers can be included in a restaurant’s tip pool. This guidance is especially relevant for tipped employees in the food service industry, where tip pooling practices can significantly impact take-home pay. The letter confirms that “front-of-house” oyster shuckers—those who interact with customers—may lawfully participate in tip pools alongside servers, if the employer takes a tip credit under the Fair Labor Standards Act (FLSA).
Under the FLSA, employers may pay tipped employees a lower direct wage (as little as $2.13/hour) and claim a “tip credit” to meet the federal minimum wage, currently $7.25/hour. However, this arrangement comes with strict rules. One of the most important is that tip pools must be limited to employees who “customarily and regularly receive tips.” This means that not every worker in a restaurant can legally share in the tips earned by servers and bartenders—only those who have sufficient customer interaction and perform service-related duties.
The DOL’s opinion letter draws a clear distinction between two types of oyster shuckers. Those stationed at the oyster bar, visible to and engaging with customers, are considered to be in a tipped occupation. These workers answer questions, make recommendations, and prepare oysters in front of diners—activities that resemble the work of sommeliers or sushi chefs, both of whom are recognized as customarily tipped employees. As such, these front-of-house shuckers can be included in a traditional tip pool when the employer takes a tip credit.
Conversely, oyster shuckers who work in the kitchen, out of sight and without customer interaction, do not qualify as tipped employees under the FLSA. Including them in a tip pool would violate federal wage laws if the employer is using a tip credit. This distinction reinforces the principle that tip pooling must be based on actual customer-facing service—not just job titles or food preparation duties. Employers who blur these lines risk wage violations and potential liability.
For tipped workers, understanding who can legally share in your tips is essential to protecting your earnings. If you suspect your employer is including non-tipped staff in your tip pool while taking a tip credit, you may have a claim under the FLSA. Our firm is committed to standing up for tipped employees and ensuring fair pay practices. Contact us to learn more about your rights and how we can help.
