The pool policy posted by the time clock says 10 percent goes to the kitchen: line cooks and dishwashers. The server reading it wonders whether that is legal, because it did not use to be. For decades, the answer was a flat no. Since 2021, the answer is "it depends on one thing." That one thing is whether the employer takes a tip credit.
Can dishwashers be included in a tip pool? Yes, but only when the employer pays the full minimum wage in cash and does not take the tip credit. The same cooks who are legally barred from the pool at one restaurant are legally included at the restaurant across the street. The difference is entirely in how the employer handles wages.
The two wage setups, and what each one allows
Federal law cares about one question first: is the employer using tips to meet its minimum wage obligation?
A tip credit lets an employer pay a tipped employee a cash wage as low as $2.13 an hour, counting tips toward the rest of the $7.25 federal minimum wage. The credit cannot exceed $5.12. When the employer takes this credit, the tip pool is restricted to employees who customarily and regularly receive tips: servers, bartenders, bussers, hosts who serve, bellhops. Cooks, dishwashers, chefs, and janitors are out. Requiring a server to tip out the dish pit under this setup violates the FLSA, and the DOL treats that as a tip-pooling problem: the employee is being required to share tips with people the law says cannot be in the pool.
No tip credit means the employer pays every employee at least the full minimum wage in cash, $7.25 or the higher state rate, and keeps its hands off the tip math. Under the 2020 Tip Rule, published December 30, 2020 and effective April 30, 2021, that employer may run a mandatory tip pool that includes back-of-house employees. Cooks and dishwashers can participate. This was the big change. Before it, the DOL's 2011 regulations barred non-tipped employees from pools regardless of the wage setup; Congress repealed that restriction in the 2018 appropriations act, and the 2020 rule wrote the new position into regulation.
The decision rules, plainly
Check these in order. The first one that answers your question ends the inquiry.
Rule 1: Look at your pay stub. If your cash wage is below the minimum wage ($2.13 is the federal floor), your employer takes a tip credit. The pool can only include front-of-house tipped staff. Cooks and dishwashers in the pool is illegal.
Rule 2: If your cash wage is at or above the minimum wage, ask whether a tip credit is being taken anyway. Some employers pay full wage and still keep tip-credit paperwork. The test is what the employer claims, not just what it pays. If no tip credit is claimed, the pool may include the kitchen.
Rule 3: Managers and supervisors are out either way. This is the part that never changes. No employer may keep any portion of employees' tips for any purpose, and managers and supervisors may not receive tips through a pool or tip-out, tip credit or not. A manager can keep a tip a customer hands them directly for service they personally and solely provided, and they can put their own tips into the pool. They cannot take from it.
Rule 4: Check your state. In the seven states that prohibit the tip credit entirely (Alaska, California, Minnesota, Montana, Nevada, Oregon, and Washington), every employer is in the no-tip-credit category by law, so kitchen inclusion is the federal default. Other states add their own restrictions on top of the FLSA. State law that is stricter than federal law wins.
The case where neither rule feels right
Here is the messy one: the employer pays full minimum wage but still runs the pool as front-of-house only, and the kitchen gets nothing. That is legal. Federal law sets a ceiling on who must be excluded, not a floor on who must be included. An employer can always run a narrower pool than the law allows.
The reverse is the illegal one: employer takes the tip credit and includes the kitchen. If that is happening at your restaurant, the DOL's Wage and Hour Division handles tip complaints, and the violation does not need to be repeated or willful for civil penalties to apply. Employers who run a mandatory pool while taking no tip credit also owe recordkeeping: payroll records showing who received tips and the amounts reported, within each pay period. The money the employer collects for a mandatory pool must generally be redistributed within the pay period.
What to do if the pool looks wrong: document it. Note dates, amounts, and who was present. You can ask the DOL's Wage and Hour Division about your situation confidentially, and you can file a complaint if the practice continues. Retaliation for asserting your FLSA rights is itself illegal. This article is general information, not legal advice; an employment lawyer in your state can tell you how your state's laws, which are sometimes stricter, apply.
The one thing you can check tonight is your pay stub. The cash wage line tells you which set of rules your restaurant lives under, and everything about the kitchen's place in the pool follows from that.
Frequently asked questions
Can dishwashers be included in a tip pool?
Yes, but only when the employer pays at least the full minimum wage in cash and does not take a tip credit. Under the DOL's 2020 Tip Rule, effective April 30, 2021, a no-tip-credit employer may include cooks and dishwashers in a mandatory tip pool. When the employer takes a tip credit, the pool is limited to employees who customarily and regularly receive tips, and back-of-house staff are excluded.
Can my employer make me tip out the cooks?
Only if your employer does not take a tip credit. If your cash wage is below the minimum wage (as low as $2.13 federally), the employer is taking a tip credit, and requiring you to share tips with cooks or dishwashers violates the FLSA.
What does "customarily and regularly receive tips" mean?
It is the DOL's standard for who may join a tip pool when the employer takes a tip credit. It covers employees whose jobs normally involve receiving tips: servers, bartenders, bussers, hosts who serve customers, and bellhops. Cooks, dishwashers, chefs, and janitors do not meet it. The test looks at the occupation, not the individual.
How do I find out if my employer takes a tip credit?
Look at your pay stub. If your cash wage is below the minimum wage, the employer is taking a tip credit. Federal law also requires the employer to inform tipped employees of the tip-credit provisions before using the credit, so the notice itself is another way to check.
Can managers be in a tip pool if they also do tipped work?
No. Managers and supervisors may not receive tips through a tip pool or tip-out, even if they performed tipped work during the shift, and this ban applies whether or not the employer takes a tip credit. They can only keep tips a customer gives them directly for service they personally and solely provided.
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