[ PUBLISH ]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 20

- 13715

________________________ D.C. Docket No. 1:19

- cv - 24706

- DLG

LINDSAY RAFFERTY, Plaintiff

- Appellant,

v ersus DENNY ’ S, INC., Defendant

- Appellee.

________________________ Appeal from the United States District Court for the Sout hern District of Florida

______________________ __ (September 15, 2021) Before MARTIN, ROSENBAUM, a nd LUCK, C ircuit Judges.
R OSENBA UM, Circuit Judge :

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 1 of 782 We ’ve probably all read stories about a few fortunate food serv e rs collect in g incredibly generous tips. 1 While that , of course, is not the norm, 2 even th e best servers with the most magnanimous customers cannot earn tips during the periods the ir empl oyers require them to engage in non

- tipped work. So the Fair La bor
S tandard s Act , 29 U.S.C. §§ 201, et seq. ( “ FLSA ” ), and the regulations the Department of Labor has promulgated to effectuate it impose rules to ensure that tipped employees

— who receive sub

- minimum hourly wages with the expec tation that tips will be high eno ugh to bring their hourly rates to at least the minimum
wage

— spend the bulk of their time w orking in tip

- producing tasks. Plaintiff

- Appellant Lindsay Rafferty , who worked as a server at a Denny ’ s
restaurant , contends that Defendant

- Appellee Denny ’ s , Inc., failed to c omply with these rules

. Instead, Ra fferty claims, Denny ’ s required her to spend much of her time perfo rming untipped duties related to her tipped work and untipped duties that had nothing to do with her ti pped work. As a result, she asserts, Denny ’ s paid her the sub

- minimum hourly wage for time she worked in non

- tip

- producing tasks as well as in her tip ped occupation

. Raffert y also claims that Denny ’ s violated the

1 See , e.g. , Jill Harness, 9 Amazing Tippi n g Stories , Mental Floss ( April 1 0, 2019) , https : // www.menta lfloss.com/article/50592/9

- absolutely

- amazing

- tipping

- stories

.
2 See , e.g. , Dan Sweeney , Servers share their worst tipping tales, from 3 per cent on a $600 tab to Huggies coupons , The Sun

- Sent inel (Aug. 10, 2018), https://www.su n - sentinel

. com / news/sound

- off

- south

- florida/fl

- reg - tipping

- follow

- 20180810

- story.htm l

. USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 2 of 783 FLSA by failing to provide the FLSA

- required notification to her of the tip rul es. De nny ’ s moved for and prevailed on summary judgme nt on a l l counts. After careful consideration and with the benefit of oral argument , we now conclude that genuine issues of mat erial fa ct concerning R afferty ’ s n on - tipped labor claims preclude the entry of summary judgment

. But we agree with the district court that Denny ’ s was entitled to s ummar y judgment on R afferty ’ s FLSA notice claim s
. We therefore affirm in part and reverse in part the judgment of the district court and re mand for furth er proceedin gs
. I . A. Fa ctual Background Lindsey Rafferty joined the D enny’s team a s a server at one of it s Akron, Ohio, locati ons in February 2012. Besides waiting on tables, Rafferty also had to
p erform some other tasks for her job

. Wh en she spent time on these o ther duties , Rafferty did not interact with customers a nd could not earn a t ip. Denny’s req uired Rafferty to engage in these non

- tipped duties before, during , and after every shift worked. 3
Raffert y ’ s untipped duties that , according to Rafferty, were r elated to he r

o ccupation as a server consisted of cu tting a ll salad

- bar item s and fill ing and

3 Because we are reviewing an order on a motion for summar y jud gment, we recite the evidence i n the light most favorable to the nonmoving party

— he re, Rafferty. See Sch umann v. Collier Anesthesia, P.A. , 803 F.3d 1199, 1207 (11 th Cir. 2015)

. T he actua l fac ts may or may not be as alleged.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 3 of 784 re fi llin g the salad ba r; stock ing all premade dressings; slicing fruits; emptying, cleaning , and refilling all flavored syrup containers; cleaning throu ghout the front of the restaurant ; cleaning , filling, and refi lling t he server lin e ; c leaning and stocking the drink stations ; and rolling silverware by hand into i ndividual place settings

. During any given shift, Rafferty testified , she spent between “ 30 and 50
pe rcent of the time ” do ing these t asks

. Denny’s also required Rafferty to engage in various duties that Rafferty viewed as unrelated to her occupation of serving customers . These included
p reparing all side an d entrée salads and other foo d items in the b ack of the

r estaurant ; greeting and seating customers; answering phones and working the cas h register; b ussing tables; preparing and plating desserts; handling takeout and delivery orders over the ph one and from walk

- in custom er s; managing and fulfilling o rders from f ood delive ry apps, including Uber Eats, Grubhub, and
Door D ash ; sweeping and mopping ; wiping down the microwave and stoves; cleaning and wiping counters; washing and scrubbing walls; breaking down and cle aning the soda, juice , an d coffee mac hine s; wiping do wn blinds and light
fi xtures; cleaning chairs; cleaning and scrubbing refri gerators, the ice

- cream freezer, sinks, trays, and bins; emptying, washing , and refilling all salt, pepper,
syrup, and condi ment dispense r s , and sugar ca ddies; detail cl eaning the s alad ba r; and detail c leaning the exp editor line

.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 4 of 785 T hroughout Rafferty ’ s t ime working as a server for Denny ’ s , Denny ’ s paid Rafferty as a “ t ipped emp loyee ” unde r the FLSA. 4 That means Denny ’ s paid her at a rate below the mini mum wage , with t he ex pectati on that she would make up the rest of her wage rate (at least to the minimum wage) t hrough tips. D enny ’ s claim e d a “ tip credit ” for the amount between what it paid her and the minimum
wage. S ee 29 U.S.C. § 203(m)(2)(A). Rafferty was require d to accurat ely rep ort all cash tips she received du ring

eac h shift when she clocked out. If , in any given work week, a tipped employee reported le ss in tips than necessary to make up the difference betw een her wage
rate and the minimum wage , Denny ’ s claim ed it automa tically paid the dif feren c e. But Rafferty asse rt s that Denny ’ s paid her less than the minimum wage and claimed a tip cr edit on all hours worked , r e g a r d l e s s o f w hether she serv ed

c ustomers or engaged in non

- tip

- producing work

. She left h er job with Denny ’ s in October 2 0 18.
B. Procedural Background Not that long after wards, Raffer ty sued De nny ’s in the United S tates District
Co urt for the S outhern District of Florida. She alleged violations of the FLSA and

sou ght t o bring claims on behalf of her self and a ll similarly situat ed tipped employees who were subject to Denny’ s all eged po licy or pr actice of paying these

4 The FLSA defines a “tip p ed e mployee ” as “ a ny em ployee engaged in an occupation in which he customarily and regularly receives more than $3 0 a month in tips.” 29 U.S.C. § 20 3(t)

.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 5 of 786 emplo yees sub

- minimum hourly wages in violation of the tip

- credit provisions of the FLSA

. Th ough s ix more plaintiffs op ted in to this colle ctive action over t he course of the district

- court proceedings , t he di strict court foun d them not to be similarly s itua ted to Rafferty

. So it ulti mately dismissed the m without prejudice, leaving Rafferty as th e sole remaining plaintiff

. Ra fferty ’ s complaint alleged three counts under the FLSA . In Count One, Raffer ty asserte d that Denny ’ s had failed to pro vide its employees with appro priate notice of the tip credit it claimed under the FLSA. C ount Two contended that Denny ’ s took the tip cr edit fo r employees ’ time when they were required to engage
in untippe d duties unrelated to their occupation as servers. And Count Three complained that Denny ’ s claimed the tip credit for employees ’ tim e even though the employees were required to work more time t han permitte d in non

- tipped so called related duties. Denny ’ s mov e d for summary judgment on all counts , and t h e district cou rt grante d Denn y ’ s moti o n
. As to Count One , the district c our t found “n o genuine issue of material fact regarding Denny’s c omplia nce with the tip cr edit notice require ments set forth in
in 2 9 U .S.C. § 203(m) and 29 C.F.R. § 516.28(a)(3).” On appeal, Rafferty argues that Count One also included a second th eor y warranting Den ny’s liability for allegedly viol ating the noti ce r equirem e nts containe d in § 203(m) : that Denny’s violated the F LSA by not providing updated notice each time the amount o f the tip

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 6 of 787 credit c hanged . T he dis trict court declined to conside r this argument bec ause it concluded that Rafferty d id not allege this theory i n her compl aint. And even if she had, the district court reasoned, Denny’s gave notice of the required informat ion , su fficient to satisfy 29 C.F.R. § 516.28(a )(3), through its o nline

“ Workday” portal

. T o resolve Coun ts Two and Three , the d istrict cour t relied on a 2018 Opinio n Letter that the Department of Labor ( “ DOL ” or “ Department ” ) issued interpreting the dual

- jobs regulation

. Based on this lett er, the court held that Rafferty ’ s claims failed becaus e she had not provided an y e vidence that she had conduct ed “s idework” at a ny time t hat was not “contem poraneous” with her tip

related activities. Rafferty timely appealed

. II.
W e review de novo a dist rict court’s grant of summary judgment and ap pl y the same legal st andards that govern ed the district c ourt , viewin g a ll evid ence and drawing al l reason able inferences in the nonmoving party’s favor

. Sch umann v. Collier Anesthesia, P.A. , 803 F.3d 1199, 120 7 (11th Cir. 2015)

. Under Federal Rul e of Civ i l Pro cedure 56(a), summary judgment is appropriate if “ the movant

s h ow s that there is no genuine dispute as to any material fact and the movant is entitled to ju dgment as a matter of law.”

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 7 of 788 I I I.
A . Material iss ues of fact exist concerning Rafferty ’ s dual
- jo bs
- re gulation claim s (Cou nts Two and Three) , so summary judgment wa s n ot appr opriate Rafferty alleges in Counts Two and Three that Denn y ’ s violated the Departm ent ’ s dual

- jobs regulation in two ways. In Coun t Two, she asserts that Denny ’ s took t he tip cr edit for hours she worked on duties unrelated to her pr imary
occupa t io n as a server. And i n Count Three, Raff erty contends that Denny ’ s

c laimed the tip credit for hours she worked excessively in unti pped duti es that were related to her primary jo b

. Befo re we anal yze these claims, in Section III.A.1 , we revi ew t he appli c able
stat utory and regulatory background becaus e understanding them is necessary to apply ing the governing analytical framew ork

. Section III.A. 2 con siders whether deference to th e Department ’ s 2018 Opinion Letter ’ s in terpretation of the dual

- jobs regulat i on is appropriate and then construes the dua l

- job s regulation. And having established in Sections III.A.1 and III.A.2 the prop er analy tical framework for

a ssess ing Rafferty ’ s dua l

- jobs claims , in Section III.A.3, we evaluate whether material issues o f fa c t remain concerning Rafferty ’ s dual

- jobs cl aim s. USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 8 of 789 1.

a
. 29 U.S.C. § 203(m) : the Tip

- Credit P r ovision Congress enacte d t he FLS A to en sure “ all able

- bodied working men an d

women a fair d ay ’ s pa y for a fair day ’ s work. ” Watkins v. City of Mon tgomery, Ala

. , 775 F .3d 1280, 128 3 (1 1th Cir. 2014) (cita tio n omitted). Congress also sought “to aid the u nprotected, unorganized a nd lowest p aid of the nation ’ s working population; t hat is, t hose employees who lacked sufficient bargaining power to secure for themsel ve s a minimum sub sistence wage.” S chuma nn , 803 F.3d at 1207 (citation o mit ted)

. Tow ards this end, the FLSA establishes a mi nimum wage that covered employers may pay. S ee 29 U.S.C. § 206(a)

. Bu t exceptions exist

. S ee 29 U.S.C. § 206(a)(1)

. One o f the se e xcep tions a pplies to wages an employer pays a “ tipped employee,” which , as we have noted, the FLSA defi nes as “any em ploye e eng aged
in an occupation in which he customarily and re gularly receiv es more than $30 a month in tips.” 29 U.S.C. § 2 0 3(t) ; see a ls o 29 C.F.R. § 531.56

. Title 29 , Un ited State s Code, Section 203(m) c o difie s this provision. 5 It authorizes an employer t o pay a tipped employee less than the mini mum wag e,

5 Section 2 03(m)(2)(A) provide s, in relevant part, (A) In determining the wage an employer is requ i red to pay a tipped employee, the amount paid such employee by the employee ’ s employer shall be an amount equal to

— USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 9 of 7810 provi ded that the t ips the employee receives at least make up fo r th e diff e ren ce b etween what the employer pays and the minim um wage. In addition, § 20 3(m) provides that it can be applied to only those t ipped employees whom the employer has informed of § 203(m )(2)(A). This subsection is sometimes referred to as the

“ tip

- c redit pro vi si on ” of the FLSA

. Congress added t he tip

- cred it p rovis ion to the FLSA in 1966

. See Fair Labor Standards Act Amendments of 1966 , Pub. L. No. 89

- 601 , § 101, 80 Stat. 830, 830 (1966 ). In these s ame amendments, Congress aut horized the Secre tary of Lab or “t o promulgate necessary rules, regulations, or o rders with regard to the amendments made by this Act.” Id. a t § 603, 80 Stat . at 844.

( i) th e cash wage paid such employee whic h for pur poses of such deter minati o n shall be not less than the cash wage requir ed to be paid suc h an employee on August 20, 1996; and (ii) an additional amount on account of the tips received by such employee w hich amou nt is equal to the difference betwe en the wa ge specified in cla use (i ) and the wage in effect under section 206(a)( 1) of this title. The additional amount on account of tips m ay not exceed the value of the tips actually receive d by an employee. T he p reced ing 2 sentences shall not apply wit h respect to any tipped empl oyee u n less such employee has been informed by the e mployer of the pr o visi ons of this subsection, and all tips re ceived by such employee have been retained by the em ployee, except that thi s sub section shall not be construed to p rohibit t he pooling of tips among e mployees who customarily and regularly receiv e tips.
29 U.S.C

. § 2 03(m)(2)(A)

.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 10 of 7811 b

. 29 C.F.R. § 531.56: the Dual

- Jobs Regula tion One year later , th e Department of Labor ( “ Department ” or “ D OL ” )

e xer cise d this authorit y a nd promulgat ed a series of regulations to im plement the tip credit. At the heart of this appeal is a su bsect ion of one of these regulations : the so - called dual

- jobs regulati on. The dual

- jobs regulation appears in 29 C. F.R . § 53 1.5 6, w hich is aimed at clari fying the meaning of “t ipped employee” as that p hrase appears in the FLSA ’ s definitional provision, 29 U. S.C. § 203(t)

. S ubsection (e) of § 531.56 states , (e) Dual jobs. In so me situations an employee is employed in a dual j ob, as f or example, where a maintenance man in a hote l also serv es as a waiter . In such a situation the employee, if h e customaril y and regularly receives at least $30 a month in tips for his work as a waite r, is a tipped employee only with res pect t o his empl oyme nt as a waiter. He is employed in two occupat ions, and n o tip credit c an be taken for his hours of employment in his occup ation of maintenance man. Such a situation is distinguish able from that of a waitress who spends part of her time clea ni ng and set ting tables, toasting bread, making coffee and oc casionally washing dishes or g lasses. It is likewise distinguisha ble from the coun terman who also prepares his own short orders or who , as part of a group of countermen, takes a turn as a sho rt o rd er coo k fo r th e group. Such related duties in an occupation that is a tipped occupat ion n eed not by themselves be directed t oward produc ing t ips. 29 C.F.R. § 531.56 (e)

. By its terms, t he du al

- job s regulatio n observes that , in some situation s , despit e pe rf orming wor k fo r only one employer, an em ployee works in two USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 11 of 7812 occupation s. When that happens and only one of the duties is a tipped occup ation , the regulation expl ains, the empl oyer can take the ti p credit fo r only the hours the empl oyee performs her tipp ed occup atio n
. In contrast, the mere fact that an employee p erforms some untipped dut ies that are related to her tipped occupation does n ot me an that sh e works in more than one occupation for he r employer , an d the employer may take the tip credit

. Ov er t he decad es t hat followed the Department ’ s promul gation of the dual

jobs regulation , th e Departm ent issue d guid ance to further clari f y the meani ng o f th at regulation. For example, in 1979, t he De partment issue d its first opinion letter

a ddressing the d ual

- jo bs reg ulat i on
. In that document, the Department con sidered whether employers could take the tip credit for hours where servers who “ rep ort t o work two hours before the do ors are opened to the public

. . . p repare vegetables for the sal ad bar

. ” It c oncl ud ed the emp loye r could not. In explaining its reasoning, th e Department observed tha t “ salad preparatio n ac tivities are essentially the activ ities p erformed by chefs

. ” Brief for the Secretary of Labor as
Am icus Curiae in Support of Plaintiff

- Appella nts, M arsh v . J. Ale xander’s LLC , 905 F.3d 610 ( 9th Cir. 2018) (N os. 15

- 15791, 15

- 15794, 1 5

- 16561, 15

- 16659, 16

- 15003, 16

- 15004, 16

- 15005, 16

- 15118 ) , 2016 WL 3900819 (providing U.S. Dep ’ t Labor, Wage & Hour Div., Op. Ltr. FLSA

- 895 (Aug. 8, 1979) in addendum ).

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 12 of 7813 Th e fol lowi ng y ear, the Department issued another opinion le tter. See U.S. Dep ’ t Lab or, Wage & Hou r Div. , Op. Ltr. WH

- 502, 1980 WL 14133 6 (Ma r. 28,
19 8 0). This time, the Department found that an empl oyer co uld take the tip credit when tipped restaura nt emp loye es wo uld “clean the salad bar, place the condiment

cro cks in the cooler, clean and stock the wait re ss station, clean and reset the table s (including filling cheese, salt and pepper shakers ) and v acuum t he dining room carpet, [all] after the resta ura nt [was ] clo sed. ” But the Department cautioned that the resu lt might be different if “specific employee s were routinely assigned

. . .

ma inten ance - type work such as floor vacuuming.” Id. Anoth er op in ion let ter followed in 1985. See U.S. Dep ’ t Labor, Wa ge &
Ho ur Di v., Op. Lt r. FLSA

- 854, 1985 WL 1259240 (Dec. 20, 1985). In this one , the Department consider e d a restaurant that routinely as signe d one member of the waitstaff responsibility for abo ut two hours o f general preparatory activities to be compl ete d b efor e the res taurant opened its doors to customers each da y. Among these activitie s, the employee had to “[c]ut and clean vegetables f or th e salad bar. 6

6 The entire list req uired the employee to complete these tasks: (1) Inspec t dining room inc lu ding wind ows and sills. (2) Check dining roo m lights. (3) Set ther mostat . (4) Chec k tables and align tabl e bases. (5) Check high chairs/boost e r se ats. (6) Set tables. (7) Set table a rrangers. (8) Clean and fill shakers. (9) Clean/replace ashtrays. (10) S to ck waitre ss station with glasses, cups, mugs , and pit chers. (11) C heck s upplie s of napkins, sugar, straws , etc. (12) Check supply and cleanli n ess of plates, salad plates and silverwa re. (13) Set up three (3) com partments, glass washing s ink. (14) Check USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 13 of 7814 The D epartment’s analysis proceeded i n two steps, i mplicitly distinguishing be tween duties that we re suff icien tly related to a tipped occupation and those that
were not. Id

. First, ad dressing what the ca se law would come to refer to as “unr elated duties,” the D epartment discussed the require ment that the employee cut and clean vegetables for the sa lad ba r. Id. Citi ng both the legislative history to the 1974

a mendments to the FLSA and the 1979 Opinion Le tter, the Department concluded
t hat n o tip credit could be take n for time spent preparing vegetables fo r the salad bar because “salad preparation a cti vit ies are e ssen tially the activities performed by chefs.” I d. As to the rema ining ac tivities listed in t he letter, the Department acknow ledge d that the dual

- jobs regula tion provides that employ ers may take t he tip credit for time a tipped employee spe nds in dut ies r elat ed to the tipped occupation , even though thos e duties are not by thems elves directed towar d s produc i n g tips. Id. Neverth eless , the Department concluded that the tip credit was

n ot available i n thi s particular scenario because the resta ura nt was assig ning a single employee to pe rform responsibilitie s that extended to the en tire restaurant,

b ev erage dis pensers. (15) Prepare tea (16) At o pening, p repare coffee . [17] Cut a nd c lean vegetables for sal ad bar. [18] Clean and sanitize snee z e sh ield on salad bar. [](19) Fill salad bar crocks with refrigerated and dry items. (20) Place vinegar and oil cr uets at e nd of salad bar. (21) Race parmesan shaker o n salad bar. (22) I f iced sal ad bar, fill ice bin. USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 14 of 7815 rat her than to the spec ific area or cust omers that employee served, and because the

non - tip producing acti vities w ere required for a substantial porti on (30 % to 40%) of the employee’s workday. Finally, i n 1988 , the Department inco rporated the interpretation o f the dual

jobs regulation advan ced i n these opinion letters into i ts Field Operations
Ha ndbook ( “ Handb o ok ” ) , which stat ed , Reg 531.56 (e) permits t he tak ing of th e ti p credit for time spent in duties related to the tipped occupation, ev en though such dutie s are not by themselves directed towa rd pr oducing tips (i.e. maintenance and preparatory or closing act ivities). For exa mple a waiter/waitress, who sp end s so me ti me c leaning and setting tables, making coffee, an d occasionally washing di shes or glasses may continue to be engaged in a tipp ed oc cupat ion even though these duties are not tip produc ing, provid ed such duties are i ncidental to the regular du tie s o f th e ser ver (waiter/waitress) and are generally assigned to the servers. However, where the facts indi cate that specific employees are rout inely assigned to maintenance, or that tipped employ ees spend a su bstantial amount of time (in excess of 20 pe rce nt) per formi ng p reparation work or maintenance, no tip credit may be taken for the tim e spent in such duti es. Marsh v. J. Alexander ’ s LLC , 905 F.3d 610, 620 n.7 (9th Cir. 2018) (quoting

a micus b rief from th e Department which re printed Handbook § 30d00 (De c. 9,
1988 ))

. Th is came to b e known as the twenty

- pe rcent rule , or the 80/20 rule

. S ee Fa st v. Applebee’s Int ’l ., I nc. , 638 F.3d 872, 881 ( 8 th Cir. 2011). Over the years, USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 15 of 7816 the Department revise d the Handbook to clarify that emp loyers could not take the ti p c redit for tim e an employe e spent performing tasks that wer e unrelated to a tipped occup ation

. So, for example, t he 2016 versi on of the Hand book states , (1) When an individual is employed in a tipped occupa tion and a non

- tipped occupation, for example, as a server and janitor ( d ual jobs), the tip credit is available only for the hour s s pent in the tipped occupation, provided such employee cust omarily and regularly receives more than $30.00 a m o nth in tips. See 29 CFR 531.56 (e)

. (2) 29 CFR 531.56 (e) per mit s the emp loye r to take a tip credit for time spen t in duties related to th e tipp ed occ upation of an employee, even though such duties are no t by themselves directed toward producing tips, pro v ided such rela ted duties are incidental to the regular duties of the tipp ed e mployees a n d are generally assigned to the tipped employee. For exa m ple, duties related to the tipped occupation may include a server who does preparatory or closing activities, rolls silverwa re and fills salt and pepper shakers while the res ta urant i s op en, cleans a nd sets tables, makes co ffee, and occasionally wa shes di s hes or glasses. (3) However, where the fact s indicate tha t tipped employees spend a substantial amount of ti m e (i.e., in ex cess of 20 percent of the hours worked in the t ipp ed occupa tion in the wo rkw eek) performing such re lated duties, no tip cred it may b e ta ken for the time spent in those duties. All related du ties count toward the 20 percent tolerance. (4) Li k ewise, an empl oyer may not take a tip credit for the time tha t a t ipped e mplo yee spends on work that is not relat ed to the tipped occupati on. For exam ple, maintenance work (e.g., cleaning ba throoms and wa shing windows) are not related to the tipped occupa t ion of a USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 16 of 7817 serve r; such jobs are non

- tipped occupations. In thi s c as e, the empl oyee is ef fect ively employed in dual jobs. Marsh , 905 F.3d a t 619

- 2 0 (qu oting amicus brief from D epartment , whic h reprinted Ha ndbook in effect in 2016)

. W e distill th is guidance into the follo wing rules: (1) An employer cannot take the ti p c redit for tim e an employee spent performing dutie s that were unrelated to the tipped occupation. (2) An employer can take the tip cr edit fo r time an e mployee performed duties related to her t ipped occupati on, provided that those duties we re not pe rform ed by that e mplo yee for more than twenty perc ent of her working hours. See al so i d. at 6 2 0 ( “ The Guidance thus clearly contemplat es that a serv er who performs unrelated tasks, such as cleaning re strooms, is a dual job employee entitled to the full minimum hou rly wage for her unrelated work. The Guidance als o clearly lays out that a server is a dual job employee if her related tasks occupy more th an 20% of her hours in a workweek. ” )

. T he next thir ty years a fter the 1988 Handbook ’ s issuance of th e twenty

per cen t r ule

— w i th o ne exception that lasted for less th an two months

— b ro ught

muc h of the same. T he Dep artment maintain ed its positi on that th e tw enty

- percent rule accurately interpreted the dual

- jo bs regulat i on as it governed whether an employer could take t he tip credi t fo r time an employee spent performing duties that were not tip

- producing themselve s, b ut that were related to the e mployee’s

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 17 of 7818 tipp ed occu pation. T he sole exception began on January 16, 2009, when the Department issued Opinion Lett er FLSA2009

- 23 , which we dis cuss below

. But a mere six

- and

- a - ha lf weeks later, on March 2, 2009, the Department withdrew that letter an d def end ed the twen ty

- percent rule in amicus briefs to the Eighth, Nint h, and Tenth C ir cuit s
. See Fast , 638 F.3d 872 (8 th Cir. 2011 ); Marsh , 90 5 F. 3d 610 (9 th Cir. 2018); Romero v. To p - Tier Colorado LLC , 849 F.3d 1281 (10 th Cir.
20 17)

. Almost ten years a fter the six

- and

- a - half

- week blip in the Department ’ s thirty

- year inter pretation of t he dual

- jobs regulation , on November 8, 2018, t h e Departmen t re issued the previo usly withdrawn 2009 L et ter verbatim. See U.S.
D ep ’ t Labor, Wage & Hour Div., Op. Ltr. FLSA

- 201 8

- 27, 2018 WL 5 921455 (Nov. 18, 2018). In this 2018 Opinion Letter , the Departme nt took a markedly d ifferent approach t o its th i rty

- year in terp retation : it jettisoned any limitation on th e amount of duties r elated t o a tip

- produci ng occupation that a tip ped e mployee

ma y perform , “ so long as [those duti es] are performed contemporaneou sly with direct cu stomer

- ser vice duties and all other requi reme nts of the Act are met.” Se e U.S. Dep ’ t Labor, Wage & Hour Div., Op. Ltr. FLSA

- 2018

- 27, 2018 WL 5921455 (Nov. 1 8, 20 18)

. T he letter also made a nother significant change to the Department ’ s i nterpretation of the dual

- jo bs regulati on . It d irected tha t th e Occupational USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 18 of 7819 Information Network ( “ O*N ET ” ) , an online database of job characteristics , 7 would be determinati ve on w hether c er tain duties were “ related to a tip

- producing occupat ion

. ” Id

. F inally, the 201 8 L etter largely m aintained t he D epartment’s pos ition that employers could not take a ti p credit for time employe es spent performing unrelate d tasks

— now defined as t hose not c ontaine d in the applicable O*NET task list

. Neverth eless, it did note that some of the time an emp loyee spe n ds
p e rforming su ch t asks may be subject to the de minimis ru le contained in the Depar tment ’ s Wage and Hour D ivis ion ’ s gen eral FLSA regula tions. 8
In February and December of 2019, the Department chang ed its interna l guidance documents to reflect t he new ap proac h it announ c ed i n the 2018 Opinion

7 O*NET o riginally obtained the infor m atio n in its database from o ccupation an alysts. https://www. onetonlin e.org/help/onet/ (last visited Sept. 15 , 2021 ). But it a ugments and u pdat es that information through “ ong oing surveys of each occu pa t ion ’ s worker population and occupation e xperts. ” Id.

8 Under th e de minimis rule, 29 C.F.R. § 785.47, in recordi ng w orking time under the FLSA, an employer may prope rly disregard “ insubstant ial or insignificant periods of time beyo nd the scheduled wor ki n g ho urs, which cannot as a practical administrative matter be precisely recorded for payroll purposes

. ” Court s ha ve h eld that “ such trifles ” are de minimis

. Id. (ci ti ng A nderson v. Mt. Clemen s Pottery Co., 328 U.S. 680 (1946) ). Th is r ule applies only wh e n su ch “ uncertain and indefinite periods of time involved

. . . a few seconds or minutes duration, and where the f ailure to count such time is due to consider ations ju s tified by industrial rea lities

. ” Id

. But it does not allow emplo yers to “ arbitraril y f ail to count as hours worked any part, however small , of the employee ’ s fixed or regular working time or practical ly ascertainable period of time he is regula rly requ i red to spend on duties as signed to him

. ” Id.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 19 of 7820 Letter. 9 Despite th e se changes , district cour ts nearly unanimous ly concl uded that
t he 2018 Opinio n Letter w as not entitled to deference under Auer v. Robb ins , 51 9 U.S. 452 ( 1997) , a case we discuss more la ter

. See Flore s v. HMS Hos t. C orp
. , No.
8:18

- cv - 03312, 2019 WL 545464 7 , at *7 (D. Md. Oct. 23, 2019) (collecting cases)

. 10 Undeterred, the Depart m ent iss ued a Notice of Proposed Rulemaking on October 8, 2019, in which it p roposed ame nding t he dual

- jobs r egulation to re f lect the ap proa ch it took in the 2018 Opinion Letter. See Tip Regulations Under the Fair L a bor Standards Act (FLSA) , 84 F ed. Reg. 5 39 5 6 , 2019 WL 4932754 ( proposed Oct. 8, 2019). O n December 30 , 2020, the De partmen t issued a final rule inco rporating thes e changes an d se t it to go into effect on March 1 , 2021 ( the

“ 2020 Tip Rule ” )

. See Tip Regulations Under the Fair Labor Standards A ct (FLSA) , 85 Fed. Reg. 86756 , 2020 WL 7753223 (Dec. 30, 2020)

. B ut the rul e

never became effective

. Instead, on February 26, 2021, af ter the Department conducted notice

- and

comment rulemaking and considered the comments filed, the Department published a final rule extending the effective date of the 2020 Tip Rule u ntil April 30, 2 021, to provide the Department with more time to review a nd c onsider the

9 On February 15, 2019, the Depa rtment iss ued a Field Assistance Bulletin , and , on December 2, 2019, the Department revised its Handbook

.
10 The distr ict co urt here was one of the rare exce ptions

. USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 20 of 7821 effects of the Rule. See Tip Regulations Under the Fair Labor Standards Act (FLSA): Delay of Effective Date , 86 Fe d. Reg. 11632, 2021 WL 736574 (Feb. 26, 2021)

. But t he day befo re the 202 0 Tip Rule was set to go into effect , t he Departmen t is sued another new rule that delayed t he 20 2 0 Tip R ule ’ s implementation

. See Tip Regulati ons Under the Fair Labor Standards A ct (FLSA) : Delay of Effective Date , 8 6 F ed. R eg. 22597 , 2021 WL 16642 81 (Apr. 29, 2021) (delaying effective date of 8 5 Fed. Reg. 867 56 until De cember 31, 2021 , a nd
stat ing t hat it shared commenters’ concerns that the rul e a nnounced in 85 Fed. Reg.
86756 may b e harmful to both tipped employees and non

- tipped e mployees). 11
Abo ut two months later , on June 23, 2021, the Depa rtment issue d an other Notic e of Proposed Rulemaking on the dual

- jobs regulation (the “ 2021 NPRM ” )

. Tip Regulations Under the Fair Labor Standa rds Act (FLSA); Partial Withdrawal , 8 6 F ed. R eg. 32 818 , 2021 WL 25 51107 ( June 2 3 , 202 1)

. This NPRM proposed the with drawal o f an d a new pro posal concerning the p art of the 2020 Ti p Rule

c oncerning when a tipped emplo yee is employe d in dual jobs under the FLSA. See id.

11 On Janu ary 19, 2021, after the 202 0 Tip Rule ha d been announced but before it was del ayed , th e A ttorneys General for eig ht states and the District of Columbia filed su it challenging the rule in the United States District Court for the Eastern Di strict of Pennsylvania. C

ommo nw ealth of Pennsylvania , et al. v. Scalia et al. , No. 2:21

- cv - 0025 8 (E .D. Pa. , Jan. 19, 2021). USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 21 of 7822 In the 2021 NPRM, the Department p roposed to amen d 29 C.F.R. §
531.5 6( f) to provide guidance rel ating to wha t it means to b e “ [e]ngaged in a tipped occupation. ” I d. at 32846. This 2021 NPRM returns to the Department ’ s longtime twenty

- per cent rule and provide s additional clarification of that rule.
Fi rs t, the propose d § 53 1.56(f) defines certain ter ms. It expl ains that “ [a]n employee is engaged in a tipped occupation when the employee perform s work that is pa rt of the tipped occupation. ” Id. The p roposed rule states directly that

“ [a] n employer m ay on ly take a tip credit for work performed by a ti pped employe e th at is part of the em ployee ’ s tipped occupation. ” Id. In turn, the
propo sed rul e defines “ [w]ork that is part of the tipped oc cupation ” as “ [a ]ny work performed by the tipped em ployee that pro duces tips [] [ and] [w]ork that direct ly support s tip

- produc ing work, . . . provided it is not performed for a substantial

a mount of time. ” Id. And it clarifie s that “ [w]ork that directly s upports the work for which employees receive tips i s work that ass ist s a tipped employee to perform the work for which th e em ploy ee receives tips. ” Id. Conversely, “[w]ork that is not part of the tipped occu pation ” means “an y work that does not generate tips and does not direc tly support tip

- producing wo rk. ” Id. The 2021 proposed rule expressly states that an emp loyer may no t ta ke a tip credit for time an employee spends engaging in work that is not part of the employee ’ s t ipped occupation. Id.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 22 of 7823 Also re levant to work that directly supports tip

- producing work, the
prop osed rule defi nes “ substantial amount of time ” to mean more tha n twenty percent of the hours worked during the employee ’ s workweek or more than thirty

con tinuous minute s. Id. Second, to fur ther illust rate the meaning of these defined terms, the 2021
propo sed rule s ets fo r th examples. For instance, th e 2021 propo sed rule explains the meaning of “ tip

- produ cing work ” by stating that “ [a] se rver ’ s tip

- producing work include s waiting tables. ” I d. And the 2021 proposed rule provides additional guidance concer ning servers; it specifies th at work that direc tly supports suc h tip

producing work “ includes, for example, pre paring items for ta bles so that the

servers can more easily access them when se rving customers or cleaning the tables to prepare f o r the next cus tomers. ” I d

. ; see also i d. at 32829 ( further e xplaining

ou tsid e th e bounds of the 2021 proposed rule that “ work that directly supports the work of a server would also include folding napkin s, preparing silverware, and garnishing plates befo re se rving the food to customers , ” as would “ [ s]weeping under tables . . . if it i s performed in and limited to the dining room because keeping the serving area clean as sists the performance of a server ’ s tip

- produ cing work ” ). In contrast, the 20 21 propos ed rule clarifi es that “ for example, preparing food or cleanin g the bathro om i s not part of a server ’ s occupation. ” Id.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 23 of 7824 2.

a
. Deference is not due t he Dep artment of L a bor ’ s 2018 Opin i on L e tter
R afferty c hallenges the district court ’ s deference t o the 201 8 Opinion
Lette r , 12 arguing that it is not ent itled to either of the forms of d eference commonly associated with the Supreme Court’s decisions in Auer v. Robbins , 519 U.S. 452 (1997), and Ski dmore v. Swift & Co. , 323 U.S. 134 (1944). In stead , Raff erty
cont end s , we should defer to the Department ’ s pre - 2018 Opinion Le tter in terpr et ati on of the dual

- jobs r egulation

.

12 A s a threshold matt er , Denny’s claims that Rafferty waived any argument t hat the district cour t should n ot have d eferred to the 2018 Op inion Letter

. We disagre e. Contrary to Denny’s co nten tion, Rafferty ’ s response in o ppos i t io n to De nny ’ s summary - judgment motion s tate d , Defendant attempts to relieve itself of the burden of complying with Dual J obs on summary judg ment by arguing that t he DOL has rescinded the traditional 80/20 Rule for defining the temporal limits of r elat ed n on - t i pp ed worked and de ferring to O*NET to essentially eliminate the distinction between related and unrelated non - tipped labor. Defendant ig nores that cour ts acro ss the country have consi stently declined to grant t he new DOL guidance deference in favo r o f the DO L’s prior guidan ce and the 80/20 Rule. Defendant does not attempt to argue how FLSA 2018

- 27 co uld possibly be entit led to deference.
I n support , Rafferty cited five different district

- co urt decision s that had de clined to de fer to th e 2018 Opinion Let te r
. Not only did R afferty ’ s brief prese rve the issue, but t he district court s pecifically recogni zed as much . It wrote in its order, “Pla intiff , in her Response, argues th at this Court should follow the reaso ning of co urts in other circ uits, which have di sre garded the new DOL guidance i n favor of the DOL ’ s prior guidance and the 80 /20 Rule. The Cour t rejects this argument .” No waiver occurred here

.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 24 of 7825 We address eac h contention in turn. But to anchor our analy sis , we begin with a discuss ion of t wo types of deference that a court may f ind appli cable to an
age ncy ’ s interpretation of its own regu lation.
We start w ith Aue r deference

. When a court engages in Auer defere nce , it defers to an agency’s reading of its o wn genuinely ambiguous regulati on
. See
Auer , 519 U.S. at 461 (stating Secre tary of L abor’s interpre tation was controlling unless plainl y erroneou s or in consi stent with the regul ation) . Sometimes Auer deferenc e is referred to as Seminole Rock d eferen ce, a fter Seminole Rock & Sand
Co. , 325 U.S. 410 (1945) , the case t hat originally emp loyed it. Kisor v. Wilkie , 139
S. Ct. 2400, 2408

. As the Suprem e Court rece ntly emphasi zed, Auer deference is appropriate only under certain cir cumsta nces. We appl y a three

- part framework to assess whether Auer deference is proper
. F irst, a regul atio n mus t be “ genuinely ambiguous.” Kisor , 139 S. Ct. at
2 415. A re gulatio n can not q ualify as “ genuine ly ambiguous ” before a cour t

“ exhaust [s] all the ‘traditional tools’ o f con struction.” Id. (citing Chevron U. S.A. Inc. v. Natural Resourc es Defense Cou ncil , Inc

. , 467 U .S. 837 , 843 n
. 9 (1984)).
So before resort ing to Aue r defer ence, a co urt must “carefully consider the text,
structur e, history, and purpose of a regulation, in al l the ways it would if it had no

a gency to fall back on.” Id. (internal qu otat ions and citation om itted).

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 25 of 7826 Second, if the re gulation s atisfies t he “ gen uinel y amb iguous ” requirement, the agency’s reading must be “ reasonable. ” Id. That means “ i t mus t com e within the zone of ambiguity the court has identified after employing all its inter pretive tools. ” Id. at 2416

. And third , the court must in de pendent ly ex amine the “ character and context of the agency inter pretation ” to determin e whether it is wor thy o f controlling weight. Id

. When Au er deference is not proper , another, somew hat weake r form of defer ence to an age ncy’s interpretation o f its own regulat ion s may apply. Named for Skidmore v. Swift & Co. , 323 U S. 134 (1944) , that form of deference is known

as Skidmore deference. See Chris topher , 567 U.S. at 159

. Un der Skidmore d efer ence , courts may giv e an agency ’ s interpretation only “a measure o f defer ence
propo rtional to the thoroughness evident in its cons ideration, the validity of its reasoning, its consistency with earlier and later pronouncements, a nd all tho se factors whi ch g ive i t power to pers uade.” Christopher , 567 U.S

. at 159 (cleaned up). S o u nl ike w ith Auer deference, an agency ’ s interpretation is not entitled to

co ntrolling weight un der S kidmore deference

. i

. The 2018 Op inion Letter is not ent itled to Auer or S kidmore de ference Raffer ty cont ends that the 2018 Opinion L etter is no t enti tled t o eit her Auer

or Skidmore deference

. Denny ’ s disa gr ees.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 26 of 7827 A. The dual

- jobs regulation is genuinely ambiguous concerning the amount of time a “ tipped employee ” can spend doing untipped b ut related duties and concerning what tasks constitute related d uties
We st art w ith Auer ’ s first pro ng: whether t he dual

- jobs regulation ( 29
C.F.R. § 531.56(e) ) is “ g enuinely ambiguous , ” Kisor , 139 S. Ct. at 2414, as to the questions at issue her e: How much ti me can a se rver spend performing dut ies related to her ti pped occupat io n that do not pro duce tips t hemselves before she i s no longer considered a “tipped employee” during t he time she pe rforms those non

tip

- producing duties (t he “ non - tipped time ” issue) ? And what du ties are r elated to the o c cu pation of a server (the “ relat ed

- duties ” issue) ? Here, t he parti es agree that the re gulation is “ genuinely ambiguous ” on these points

. After cons idering the text , structure, history, an d pu rpose , w e reach the

same c onclusion

. To be sure , t he text of t he dual

- jobs regulati on provid es so m e guideposts to lead the wa y on th ese questions. With respe ct to the non

- tipped time issue , for example, the reg ulation states that an employer may take the tip cre dit for the hours of a waiter “ who spen ds part of her tim e cleaning and set ting tables, t oasting bread, ma king coffee and occasionally washing dishes o r glasses

. ” 29 C.F.R. § 531.56 (e) (emphasis added)

. T he terms “ part of her time ” and “ occas ionally ” imp ose a l imit on the amount of time an ot herwise tipped emp loyee may spend do ing untipped w ork before the

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 27 of 7828 em ployer can no longer claim the tip credit. T he dictionary defines “ part ” as “ [a] portion, divisio n, piece, or segment of a whole. ” Part, The America n Heritage
Diction ary , at 128 0 ( 4t h ed. 2000). And “ o cca sionally ” means “ [ o]c curring f ro m time to time[;] [n]ot habi tual ; infrequent. ” Occasional, Th e American Heritage Dictionary , at 1215 (4t h ed.). S o we know that , for an employer to be en titled to
th e tip cred it for t he entirety of an emp loyee ’ s hours, the employ ee may perf orm

non - tipp ed work related to her duties, but that must occur no more than

“ infrequent[ly]

. ” While that elimina tes some possibi lities (e. g., we know the employee must not engage in non

- tipped work often), we don ’ t know

— and it ’ s not clear

— where exactly we draw the li ne between time that q ualifies as “ infre quent ” and that that does not. 13 See Fas t , 63 8 F.3d at 877 ; se e also Marsh , 905 F.3d at 624

- 625

. As t o the related

- du ties question, the du al

- jobs re gulation s ets fort h three

exa mp le s to illustrate the dif ference betw een related duties an d unrelated dutie s. The fir st example involves an emplo yee wh o works both as a maintenance employee and as a wa ite r at the same hotel. 29 C.F.R. § 531.56 (e) . The re gulation
t ells us these dutie s are not related but inste ad constitut e “ t wo occupations , ” and the tip credi t is availa ble only for the server hour s. Id

. The second example

13 Most respectfully, we do not think our colleagu e ’ s test , which likens the meaning of

“ occasionally ” to wh at his friend who says she “ occasionally ” goes to the mal l means , illuminat e s the answer to this question

. See Concurrence at 76

- 77.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 28 of 7829 describes the waiter w e discuss ed above and concludes that he r duties “ cleaning and setting t ables, t oasting bre ad , making coffee and occas ionally wash ing dishes or glasses ” are related. I d. And the third example speaks of a c oun ter employee

“ who prepares his own short orders or who, as part of a group of countermen, takes
a turn as a short orde r cook f or the grou p. ” Id. Those du ties, too , are relate d, the regulation con cludes. Id.
Bu t the regul ation sets out no test , defi nit ion , or other an alytic tools to all ow
a court to ascerta in what constitute “relate d ” duties and what do not and what d emarcate s a separat e “ occupation

. ” See Fast , 638 F.3d at 877 ; se e also Marsh , 905 F.3d at 624

. We do n ’ t know whether duties must be directly related, closely related, or logically related

. Nor do w e know whether indirectly related duties can qualify

. 14 And the examples the regulation sets out do no t shed much light on the
answers t o some of the precise questions here : wh ether p reparing all side an d entrée salads a nd other foo d items in the back of the restaurant ; greeting and seating customers ; answerin g phones and working the cas h register ; prepar ing and plat ing desserts ; sweeping and mopping ; wiping down the microwave and stoves ;

14 Again, most re spectfully, we do not understand how the Concurren ce ’ s footnote 3 helps us to ascertain the meaning of “ r elated ” in the dual

- jobs regu lati on
. See Concurrence at 75 n.3. The Concurrence assert s that “ ‘ [d]i stinctly related, ‘ directly related, ’ and ‘ indi rectly related ’ are different kinds of relatedness. But they do not mean ‘ relate d. ’ They do not define ‘ re lated. ’ They are their own s epara te and unique terms with their own separate and unique meanings. ” Id

. This type of ivory

- tower lingui stics , while perhaps interesting, do es not help us to answer the very real and pr acti cal questions we must a dd ress in t his case : name l y, which u n tipped duties qualify as “ related ” for purp oses of the dual

- jobs regulation. USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 29 of 7830 cleaning and wiping counters ; washing and scrubbing walls; breaking down and cle aning the soda, juice , an d coffee mac hines; detail c leaning the salad ba r; and detail c lea ning the exp editor line are “ related duties. ” So the tex t is ambiguous. The structu re of the regulation likewise offers no answers to the ques tions we must address here. Nor do the h is tory and p urpose of the dual

- job s regul at ion

. True, we know that Cong ress enacted the FLSA , in par t, to guarantee w orkers at l east a minimum
wage. S chuma nn , 803 F.3d at 1207

. So we can discern that the dual

- jobs regulation must have been intended to b e consistent with that pur pose. B ut beyo nd that, the history of the reg ulation tel l s us little. The Department promu lgated the regulation a year after Cong re s s amen d ed the FLSA to define “tipped employee” and p rovi d e, for the very first time, a formula f or calculating a tipped em ployee ’ s

w ages
. The regulation ’ s p urpose, a cc ording to th e NPRM th at eventually led to the dual

- jobs r egul ation, w as to “ expand 29 C F R Part 531 to make provisio n s
resp onsive” to the “Fair Labor Standards Act of 1966.” 32 FR 222, 222 ( Jan. 10,
1 967). Yet this NP RM did no t specif ic ally mention th e du al

- jobs regu lation, making it difficult to discern much e lse fro m the run up to the r e g u lation. In short, af ter exhaus ting our entire analytical toolbox, we must conclude that the dual

- jobs regulation is ambigu o us as t o the no n - ti pped time and related

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 30 of 7831 du ties issues. Fast v. Applebee ’ s Int er., Inc. , 638 F.3d 872, 879 (8t h Cir. 2011) (finding the same dual

- jobs regulation at issue in Rafferty ’ s case to be

“ ambiguous” under Auer as to the meanings of “ part of [t he] tim e ” and

“ occa sionally ” ) ; Mars h v. J. Ale xander ’ s LLC , 905 F.3d 610, 623

- 24 ( same ). Before we move on to the next step in the Auer deference analysis, we pause
to address our colleague ’ s argument that the dual

- jobs regulation is not ambigu ous, but rat her mere ly “ vague , ” and so it cannot proceed t o the second step of the Auer deference analysis. See Concurrence at 67

- 68 n.1 , 69

- 74

. The Con currence contends th at when Kisor said a regulation must have “ multiple reasonable meanings, ” it required, for the first time, that a regulation not be just “ va gue ” or lack p recision af ter the reviewing court applies all the tools in the judicial too lbox to discern its meaning on the specifi c question at is sue , but that it satisfy essentially

a term

- of

- art definition of “ ambi guous ” 15 before a reviewing court may p roceed to
Auer ’ s second a nd third steps. See id

. We disagree

.

15 The Concurrence insists it does not employ a “ term

- of

- art definition or redefinition ” but rather that its definition “ is how ambiguity is defined. ” C oncurrence at 67 n.1

. We agree that the way the Concurrence defines “ a mb iguity ” is one way it can be defined. But , as even the source the Concurrence cites for its specialized d efinitio n of “ ambiguous ” concedes , see Concurrence at 67 n.1 (quoting Ambigui ty , A Dictionary of Mo dern Legal usage 48

- 49 (2d ed. 1995) (citation and int ernal quotation marks omitted) , for the proposition, “ It is unfortunate that many lawyers persist in using the word ambiguity to include vagu eness. . . . Of course, even highly re puted legal writers co nfuse the two terms . . .

. ” ), it is not the common us age of the word. See , e.g. , Ambiguity , Cambridge Di ctionary (online ed.), https://dictionary. cambridge

. org / us/ dictionary /english/ambiguity (last visited Sept. 15 , 2021) ( “ (an e x ample of) the fact of something having more than one possible meaning and therefore possibly causing confusion: We wish to remove any am biguity concerning our dema nds. There are some a m biguiti es in the legislation. ” ) ; Ambiguity , Merriam

- Webster Di ctionary (online ed.), https://www.merriam

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 31 of 7832 First, no matter how much the Concurrence tries t o reinterpret the wo rds of
Kisor , the Supreme Court said no such thing in that case. T hough Kisor certainly

r equires cou rts to exhaus t “ all th e tools of statutory cons truction ” before declaring a regulation ambiguous , that is a far cry from redefin ing th e word “ ambiguous ” from how the Court has always used that term in Seminole Rock/Auer jurispru dence to so mehow exclud e terms that remain vague o r imprecise on the
exact question before the court, after the court has employed every tool of statutory construction to try to discern their meanings. In fact, as the Concurrence itself points out, “ [r]ight after the phra se ‘ genuine ambiguity, ’ the Court quoted from
Semino le Roc k that Auer deference sh ould be afforded ‘ only “ if the meaning of the words used is in doubt. ” ’ ” Concurrence at 70 ( quoting Kisor , 139 S. Ct. at 2415 (quoting Semino le Rock , 325 U.S. at 414))

. Exa ctly. The Supreme Court cited 7 5

- year - old precedent to ex plain what it meant by “ ambiguou s. ” In other words, t he Supreme Court did not attach a new meaning to “ ambiguous ” ; instead, it noted only its intent that the o ld meaning be enforced

. That is, befo re a court may declare a regulat ion “ ambiguous, ” it must
f

irst ex haust all tools in the statutory

- construction toolbox to ascertain the meaning of the regulation

. webster .com/dictionary/ambiguous (last visited Sept. 15 , 2 021) ( “ 1 a : doubtful or u n certain especially from obscurity or indistinctness: eyes of an ambiguous co lor; b: inexplicable; 2: capable of being understood in two or more possible senses or ways : an ambiguous smile; an ambiguous t erm; as deliberately ambig uous reply ” ). And as we explain below, it is clearly not the usage of the wor d that pre

- or post

- Kisor Auer jurisprudence employ s.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 32 of 7833 If

, as the Concurrence argues, in three words Kisor chang ed the m eanin g of

“ ambiguity ” for purposes of the Auer deference a nalysis to the mean ing the
Concurrence con t ends , the Concurrence would not need to use multipl e pages , the Peerless , and chickens to explain that ’ s what Kisor mean s
. Indeed, the Supreme
Co urt is certain ly c apable of saying what it means, and it “ does not normally

over turn, or so d ramatically limit, earlier authori ty sub silentio

. ” Shalala v. Il l. Council on Lo ng Term Care, Inc. , 529 U.S. 1, 18 (2000).
Se cond, no t only does Kisor not affirm ati vely suppor t the Concurrence ’ s
p oint, but Kisor e xpressly disavo ws the notion that it repr esents “ any depar ture from doctrine, ” noting that it is but one in “ a long line of precedents

— each one reaffirming the res t and going back 75 years o r more. ” 13 9 S. Ct. at 2422 (citation and intern al quotation marks omitted )

. An d both Justice Kagan ’ s and Justice Gorsuch ’ s opinions recognize t hat “ am bigu ity ” for purposes of Auer deference inc ludes regulations that are “ vague ” and lack precision. Justice Kaga n , for example, exp lains that “ s trong (a lmost surely stronger) incentive s and pressure s ” encourage agencies to draft their re gulations in a way that is not “ designed ” to be “ vague [] [ after engaging in the first step of th e post

Kisor Auer framework]

. ” Id. at 2421 (plur ality opinion) (emphasis a dded)

. Rather, she re asons, “ re gulators want their regula tions to be effective, and clarity promotes compliance. ” Id. ( alteration , internal quotation marks, and citation

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 33 of 7834 omitted). She continues, regulators aren ’ t the only ones: “ To o, regulated parties often pu sh for precision from an agency, so that they know what they can and cannot do . An d ambiguities in rules pose risks to the long

- run survival of agency policy. ” Id. (emphasis added). That is so, Justice Kagan wri tes, bec ause

“ [ v ] agueness increase s the chan ce of adver se judicial rulings. ” Id. (emphasis added). In this passage , she clearly speaks of the type of vague ness that exists after the courts exhaus t all tools of construction, re quiring courts to then engage in the

s eco nd and third steps of the Auer analysis. 16
Justice Gor such ’ s opinion (joined by three other Justices) shows that he also equates the meaning of pre - and post

- Kisor ambiguity with vagueness after the full judicial toolbox is emp loyed. His opinion responds i n part to Justice Kag an ’ s point

w ith the following an swer: “ Whether or not reg ulations ar e ‘ “ des igned ” ’ to be
vague , many can be read in different ways, especially w hen new and unanti cipated applications arise; cases like that come before the courts all t h e time. ” Id. at 244 0

16 The Concurrence do es n ot engage with this point at all, instead simply repeating Justice Kagan ’ s remarks and then opining without basis that Justi ce Kagan mentioned

“ vagueness ” in the plurality section of her Kisor opinion “ because vagueness and ambiguity are different legal concepts

. ” Concurrence at 71 . While we can not purport to have access to Justice Kagan ’ s thinking on wh y the se remarks appear in the plurality section of the opinion , review of the structure of the opinion and of the Chief Justice ’ s views seem s to us to indicate instead that this section is set off from other par t s of Justice Kagan ’ s opinion because Chief Justice Roberts upheld A uer deference mostly, if not entirely, for reasons of stare decisis , so he did not wish to concur in the p ortion of Justice Kagan ’ s opinion that explained th e Court ’ s refusal to jettison Aue r deference based on the policy reasons f or its original adoption

. But regardless of why she put this discussion in a di fferent part of her opinion, the point is the same: Justice Kagan ’ s opinion clearly equates vagueness after emptying the judicial toolbox with ambigu ity for purposes of the Au er fra mework.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 34 of 7835 (Gorsuch, J., concurring in th e judgment) (emphasis adde d) (citation omitted)

. He continues, “ Whether purposeful or not, the agency ’ s failure to write a clear regulation winds up increasing its power, allowing it to both write and i n terpret rules that b ear the force of law . . . . ” I d. In other words, Justic e Gorsuch takes issue with the Auer framework b ecause , in his view, it encourages agencies to write “ vague ” regulations , their interpretation s of which might be entitled to defe rence without going t hrough the rulemaking procedure

. And since Justice
Gorsuc h had four votes for his opinion and Justice Kaga n had four for t he part of her opinion quoted above, that makes at least eight members of the Court 17 who clearly understood “ amb iguity ” for the purpo ses of Auer deference to include regulations that are “ vag ue ” after the court uses all the tools i n the judicial toolbox to discer n their meaning. 18 Third, despite the Concurrence ’ s invocation of A. Scalia & B. Garner, Reading La w: The Interpretation of Le gal Texts 32 (2012 ) , for its pos ition, Justice Scalia ’ s in terpretation of the meaning of “ a mbiguity ” for purp oses of Auer

17 C hief J ustice Roberts gave no reason to believe he disagreed with the other Justices ’ understanding that “ ambiguity ” for purpose s of Auer deference includ es vaguene s s. 18 Plainly, Justice Gorsuch is not a fan of the Auer deference concept. But the Concurrence ’ s l engt h y quotations of Justice Gorsuch ’ s cri ti cis ms of that concept d o n o t r e b u t t h a t Justice Gorsuch used the word “ vague ” as a synonym for “ ambiguous ” when he discussed his dis likes of the Auer deference f ramework and that he clear ly understood post

- Kisor Auer am biguity to include regulations found vague after all the statutory

- construction tools are employed

. See Concurrence at 71

- 73. Indeed, one of the points of Justice Gorsuch ’ s separate concurrence is that when post

- Kisor A uer deference applies, it allows agencies to int erpret their own vague regulations without going through the rulemaking process

.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 35 of 7836 deference also included regulations tha t remain “ va gu e ” or “ imprecise ” even after the courts use all tools of cons truction to construe their meaning. Notably, Kisor does not cite Reading Law

. An d J ustice Scalia, the author of the tre atise , in Supreme C ourt concu rrences he wrote both before and after the cited source was published (and after Justice Scalia issued his dissent in Pauley v . BethEnergy Mine,
Inc. , 501 U.S . 680, 707 (Scalia, J., di s sentin g) ) , descr ibed Auer as permitt ing de ference “ when an agency promulgate s an imprecise rule ” or “ vague rule s ”

— the very types of rules the Concurrence contends are not “ ambig uous ” for p urposes o f
Auer

. TalkAmerica, Inc. v. Mi ch igan Bell Tel

. Co. , 564 U.S. 50, 68

- 69 (2 011) (Scalia , J., concu rri ng) (emphasis added) ; see also Perez v. M ortg. Bankers Ass ’ n , 575 U.S. 92, 111 (Scali a, J., concurri ng) (criticizing Auer doctrine as a llowing deference t o agency interpretations of their own r ules that they wrote “ broadl y a nd
vag uely, leavin g plenty of ga ps to be filled in later ” ). Th ese statements reflect that Justice Scalia viewed as “ ambiguous ” for purposes of Auer deference “ broad[] , ”

“ vague, ” or “ imp r ecise ” rule s
. Nor, con trary to the Co ncurrence ’ s content ion, does Jus tice Scalia ’ s Pauley dissen t o ffer any support for the Concurrence ’ s argument that regulations that are still vague even aft er the court uses all its interpretive to ols cannot be ambigu ous for Auer purposes. In Paule y , Just ice Scalia conclude d instead that th e mere complex ity of th e r egulation at issue

— which pertained to black

- lung claims by USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 36 of 7837 miners and w as lengthy and intertwined with other regulations

— did not render it ambiguous

. See id. Fourth, we agree that acade mic journ als have observed that Kisor requires the courts a t step one of Auer to exhaust every tool in their interpretive toolbox before declaring a regulation amb iguous . But again, that is quite a diffe rent thing from sayi n g that Kisor held that a regula tion that remains vague, e ven after using every interpretive tool, ca nnot be ambiguous for purposes of Auer de ference.
C onspi cuously absent from the Concurrence ’ s discussion of academic articles on
Kisor is any quotation fr o m one that says Kisor stand s fo r the proposi tion the
Conc urrence says it does.
A nd finally, t h e Con currence ’ s interpretation o f the word “ am biguous ” would defeat the p urpose of Auer deferenc e to, a mong other things, pro mote

“ c ertainty and pre dictability [ in] the administrative process

. ” See Christophe r v. Smit hK line Beecham Corp. , 567 U.S. 142, n.17 ( c itation and interna l quotation marks omitted ). For example, here, if each court endowed the ambiguous aspects of the dual

- jobs regulat ion with its own und e rstanding of the precise meanin g of the regulati on , emplo yers would have no way of know ing withou t l itigation how much of their waiters ’ time could be spent on related dutie s before the employers were ineligible for the tip credi t. An d they would not be a ble to accurately predict

w heth er some duties we re “ relat ed. ”

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 37 of 7838 For all the se reasons, the Concurr enc e ’ s view that Kisor held that a regulation that is still vague even after the court employs every tool of construction cannot proceed t o the second step of the Auer deference framework is baseless.
B. T he 2018 Opinio n Letter is not a reasonable in terpretat ion of the d ual

- job s r egulation
So we turn to the second step of the Auer analysis an d consider whether the 2018 Opin i on Letter’s interpr etation of the dual

- job s regula tion is a reasona ble

one. We conclude it is no t. For starters, t he 20 18 Opin ion Le tte r s tates , “ We do no t i ntend to place a limitation on the amount of duties related to a tip

- pro ducing occupati on that m ay be perform ed, so long as they are per for med cont emporaneou sly wi t h di rect
customer

- serv ice duti es and all other re quirements o f the Act ar e met.” U.S. De p ’ t Labor, Wage & Hour Div., Op. Ltr. FLSA2018

- 27 (Nov. 8, 2018 ). T he removal of any limi t on the t ime a tipped employ ee may perform non

- t ipp ed dutie s flat ly
contra di cts the dual

- jobs regulation ’ s c eiling on related dutie s at “ occasi ona l[] ”

— or infrequent

. S ee Marsh , 905 F.3d at 625 (“ Had the DOL intended to unambiguously foreclose servers fro m being d u al job emplo yees re gardless of the

amou nt of time they spend on rel ated , but untipped duties, the regulation would n ot in clu de t he tem por al limitations i t d o e s
. ”) ; see also Fast , 638 F.3d at 879 (“ By using the terms ‘ part of [the] time ’ and ‘ occa sionally, ’ the regulat ion cle arly places

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 38 of 7839 a tempor al limit on the amount of re late d duties an employee can p erform and still be conside red to be eng age d in the tip

- pro d u c ing occupation. ”). The 2018 Opinion Letter’s use of O*NET to defi ne what duties are suf ficiently related crea tes add itional problems

. A s p art of t he process by whi ch
O *NET determines which duti es are core or supp lemental for a tip

- pr o du cing occupati on, O * NET asks employees what duties their employers are requiring them to perform. See ht tps://www.onetcen ter. org/dataCollection.html (last visited Sep t. 15, 2021). But this creates a risk that unlawfu l pr a ctice s will be co m e entrenched in high

- violation industries by setting up a fox

- guardi ng - the

- henhouse situa tion : si m ply by requir ing ti pped employee s to pe rf o rm untip ped duties

— whethe r those duties are, in fact, r elated or not to the ir tipped d uties

— emp loy ers e ffectively

r e n der the untipped duties “ related. ” See 8 6 F ed. R eg. 22597 , 2021 WL 1664281, (Apr. 29 , 2021 ) (re c ognizing this conc e rn and stating that it was one of the “significa nt comment[s]” it received tha t led it to delay implementatio n of the
Dec em b er 2020 F inal R u l e) ; see also 86 F ed. Reg. 32818

- 01, 32826 (noting th at O*NET “ may reflect ” as relat ed duties th e work of a non

- tipp ed occupation, simpl y b ecause “ employers require tipped employees t o perform [ this work] ” and emphasizing tha t O*NET “ was not created to i d e ntify employer ’ s [sic] legal obligation s under the FLSA ” ) . Notably, even when the Depa rtment wa s promoting

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 39 of 7840 the 2018 interpretation, it st o pped s ho rt of using O*NET to d efinitive ly determine

“ re lated dut ies

. ” See 85 Fed. Reg . 86756 , 867 67, 2020 WL 7753 22 3 (Dec . 30, 2020) (stating that the final rule “c ompl ements th e exa mples already in § 531.56(e) by adopt ing [O*NET] a s a source of guidan ce for determining w hen a tipped

em ployee’ s non - tipped dut ies are r elated to his or her occupati on ” ( emphasis added) )

. T he 20 18 Opinion Letter essentially rewrites the dual

- jobs regulation to impose obstacles to ac hie ving i ts original p urpose, without un de rt a king the

r

ule ma king process the A dministrative Procedur e A c t requires

. So the 2018 Opinion L et ter ’ s construction of the d ual

- jobs regulation does not fall within “ the zone of ambiguity ” we have identified in th at r egula tion

. Put si mply, t hat is not a

re a sonable interpr etation

. And t ha t ’ s enough of a reason not to defer to the 2018 Opinion Lette r
. C. Th e c haracter and co n text of the 2018 Opinion Letter ’ s interpretation do not entitle it to controlling weight
But the 2018 Letter a lso f ails Aue r ’ s third pr on g because th e character and context of the Letter ’ s inte rpretation of the du al

- jobs regulation d o n ot entitle it to

c o ntrolling wei ght

. See 139 S. Ct. at 2416. Although Kisor cautioned that this step “wo uld not re duce to any exhaust ive test ,” it lai d o ut some “especially important markers f or determining when Auer defer ence is a nd is not appropriat e.” Id. These req ui r e us to consi der whether t he regul atory interpreta tion is one the agency

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 40 of 7841 “ actua lly made , ” whether the agency’s inter pretatio n implicates i t s subs tantive expertise , and whether the agency’ s re adi ng reflects its “ fai r and considered jud gme nt. ” Id. at 241 6

- 1 7 (citation a nd quotation marks om itted)

. The parties do not dispute that the 2 018 Opin ion Letter was the agency’s

o fficial position at th e time it was issued. And the letter does at least theo retically
i mpli cate the Department’s sub sta ntive expertise, s i nce its subje ct matter s

— wh ether an empl oyee ’ s duties are “ related ” and ho w long a tippe d employee can work on untipp ed related duties be fo r e her em ployer can not claim the tip credit for her unti pped duties

— fall wit hin the scope of the De partment ’ s or din ar y authority

. See id

. at 24 17. But we c annot conclude tha t the 2 018 Opinion Letter repr esent s the agen cy’s “ fair and considered ” judgmen t

. First , t he Department app ears to have simply reprint ed a stance it previous l y adopted and then aba ndoned short ly a ft e r adopting it . As we have noted , the 2 018 Opinion Letter just rei ssued the 2009 Opinio n Let ter v erbatim , whi ch itse lf was issued on the f i nal day of the t hen

- existing administration

. The Depar tment withdrew the 2 009 L etter less than tw o months later a nd r eturned to defending the twenty

- pe rcent rule in t he Eighth, Ninth, and Ten th Circuit s
. See Fast , 638 F.3d 872 (8 th Cir. 2011); M arsh , 90 5 F.3d 610 (9 th Cir. 2018); Romero , 849 F.3d 1281 (1 0 th Cir. 2017)

.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 41 of 7842 Se cond , even the Department ’ s N PRM , is sued with t h e bene fit of an additi onal eleve n m onths after the 2018 Letter , betrays an ab sence of “ fair and

c on s idered ” judgment on the part of the D e p artment. As the NPRM concedes, the Department “ lack[ed ] any data to quanti fy any potential cos ts, benefits, or tr an s fers which may be asso ciated with t he implementation of [its 2018 O p i nion Letter] polic y. ” 84 Fe d. R eg. 53956

- 01 , a t 59 367

. But the De par tment “ has an obligation to perform its responsibilitie s with some degree o f expertise

. ” Hampt on v. Mow
Sun Wong , 4 2 6 U.S . 88, 115 (19 76). Here, the Departmen t simply hypothesize d

. And w orse yet , under its hy po t hesis , the 2018 po licy tra mples the re as ons for t he dual

- jobs regulation ’ s existence and is inco nsistent with the FLSA ’ s pol icy of promo t in g fair conditions f or wo rkers

. See 2 9 U.S.C. § 2 02 . As the D epartment itself exp lained in its 2019 NPRM seeking to turn the 2018 poli cy into a rule , it

a nt icipated that the new policy co uld “ result in tipped wor kers such as wait staff and bartenders p erf orming more . . . n on - ti pped duties, ” and it co ul d cause “ tipp ed workers [to] lo se tipped income b y spending more of their time perform ing duti es where the y are not e arning tips, while sti ll r eceiving cash wages o f less than minimum wage

. ” Id. at 53972

. A nd the 2019 Depart m ent w as not alone in th ese pre dictions. Wh en the Department issued its 2021 Par tial Wi thdrawal and notice of propos ed rulem aking on the d ual

- jobs regulation, it emphasized its belief “ that the 2020 Tip final rule

. . USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 42 of 7843 . co uld harm tip ped employee s and non

- tippe d employ ees in industries that employ significant numbers of tipped workers. ” Tip Regulat io ns Under the Fair L abor
Sta ndards Act ( FL SA); Part ial Withdrawal , 8 6 F ed. R eg. 32818 , 32820, 2021 WL
2551107 ( June 2 3 , 202 1) ; see also id

. a t 32825 ( “[T]he De p artme nt is concerned that the lack of clear guidelines in the 2020 Tip final rule . . . created t he potential for ab use of t he tip credi t to the de triment of low

- wage tipped workers. ”)

. Comment ers agreed. Id. a t 32824 ( n oting that c omm en t e rs on the 2020 rule expressed concern that “ t he new test f or when an employer can take a tip credit for relate d, non - tipped duties will enc ourage emplo ye rs to shi ft more non

- tipped work to tipped employees, de pressing tipped employe es ’ w ages and pos sib ly eliminating

non - tippe d jobs ” ), 32826 ( noting t hat commenter s on the 2020 rule e xpressed concern that it would c au se employers to shi ft non

- t ipped work t o tipped

em ployees, “ driv[ing] down wages for

— or even elim inat[ing] back

- of

- house posi tions in res tau rants, and related maint enance and p rep jobs in o ther workplac es lik e hotels, carwashes and parking lots, and serv ic e establishments ” ) (citati on and quotat io n marks o mitted )

. The Department has noted that these co nc erns of harm are “ particu l arly acute d uri ng the COVID

- 19 pa n demic , when . . . many restau rants may hav e shifted a significant portion of their tipped emplo ye es to perform more non - tip ped

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 43 of 7844 work. ” T ip Regulati ons Under the Fair Labor Standards Act (FLSA); Partial Withdrawal , 8 6 F ed. R eg. 32818 , 328 26 , 2021 WL 255110 7 ( Jun e 2 3 , 202 1)

. T

hird , the 2018 Opinion Letter ’ s interpretation of the regulation contradict s
t he Department ’ s lon g - stand ing prior int er pretation

. And the Supreme Court has

“ only rarely given Auer de ference to an agenc y constr uctio n c onflict ing with a
p rior one.” Kisor , 139 S. Ct. at 241 8 (c le aned up ). Particularly in view of the Department ’ s a pp arent failure t o co nduct a ny real study o r analysi s before changing its longtime construction of the dual

- jobs regulation, w e do not thin k t his

case qualifi es for t hat rare excep tion.
Four th , deferring to the letter and apply ing its interpretation of th e d ual

- jo bs regula tion to Raf ferty’s claim s would unf air ly surprise regulated parties. See
Kisor , 1 39 S. Ct . 2418

. Denny’s ar g ues that is not the case with res p ect t o Raffer ty because the D epartment int ended the 2018 Letter to be applied retroactively and b eca use the Dep artme nt issu e d it before Ra fferty fi led her complaint. We are not persuaded

. T o be sure , we have uphel d an agency ’ s retroacti v e int erpretation before.
S

ee H eimmermann v. First Union Mortg. Corp. , 305 F.3d 1257 (11th Cir. 2 002).
Bu t there, t he new i nterpretatio n merely cl arified e xisting law ; it did not represent an altogether new rule o r regu l a tion. See i d

. at 1260. As we ha v e exp lained,

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 44 of 7845 though, we canno t fair ly char acterize the 2018 Opinion L etter as a clarif ication o f existing law , since it con f licts with t hat

. As f or the fa ct that the D epartment issued its 2018 Opinion Letter b e fo re Raff e rty filed he r c omplaint , that is i rrele vant h ere because th e De p ar tment ’ s lo ngtime interpretation of the dual

- jobs regulation was f ully in fo rce throu ghout t he period whe n Rafferty worked fo r Denny ’ s
. And i t is Rafferty’s expect ations at th at ti me that m a tter

. For th ese reasons , we concl u de th at the 2018 Opinion Lett er is not ent itled t o Auer deference

. D. The 2018 Opinion Letter is not entitle d to Skidmo re deference
W e al so decline to accord S kidmore deference to the 201 8 Opinion L e tter. S

ee Kiso r , 139 S. Ct. 2424

- 25 (Ro berts, C.J., concu r ring) (recognizing that whil e Auer and Skidmore deference are diff erent, “the c ases in which Auer deferen ce is

w arra nted largely overlap with the c ases in w hi ch it would be unreasonable f or a
court not to [gr ant Skidmo re deference]. ”)

. Skidmore deference refer s to “a measure of defe r ence [to t he agency] proportional to the thoroughness eviden t i n its conside ration, the validity of its rea soning, its consiste nc y with earlier and later
pro n ouncements, and al l those factors whi ch give it po wer to persuade.” Chris topher , 567 U.S. at 159 (cleaned u p). As the Auer analysis shows, the 2018 Opinion Let ter f ails thi s evalu atio n on all fronts. USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 45 of 7846 iii. W hen we employ the traditional tools of interpretation to determine the m eaning of the dual

- jobs re gulation, we concl u de that the regulation p r ohibits employers from taking the tip credit for hours whe n an employee per formed unrelated duties or performed related duties for more than twenty percent of her time
Be cause we concl ude that the 20 18 Opini on Lett er is not enti t led to deference, we must evaluate for ourselves the meaning o f the d ual

- jobs regulation as it re la tes to the non

- ti pped time and relate d

- dutie s issues. To do so, we “ employ traditional tools of interpretation. ” Christopher v. Smith Kli ne Beecham Corp. , 5 67 U.S. 142, 161 (2012). But a s we have noted, the FLSA is ambiguous on the questions we must re solve here . So we use those tools to d iscern the most

reas onable interp retation we can.
We begin with the text o f the FLSA. Although t he statute does not a n swer our precise questions, it does provide some helpful hi nts. The FLSA ’ s definition

o f “ tipped employee ” requires that a qualifying e mployee be “ engaged in an occupation in which he customarily and regularly receives . . . tips. ” 29 U.S.C. § 203(t). T h e plain language of this defin ition tells us that for the employer to qualify to take the tip cr edit, the employee ’ s job must , by t radi tion and in reality, be one where she consistently earns tips. And 29 U.S .C. § 203(m) authorize s em ployers to pay t he i r tipped employees substan tially less tha n the minimum wage, with the expectation that the employ ees ’ tip s will at l e a st make up the dif ference

. So to be c ertain workers USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 46 of 7847 receive at least a minimum w age without having to regularly see k t he employe r ’ s
pa ym e nt of wages to make up for low tips , we m ust construe the dual

- jobs regulation to ensure that th e reduced direct wag e for tipped employe es is av ailable
to e mployers only when employees are actually e nga ged in a tipped occupation that wil l allow them to ea rn the rem ainder of at leas t the minimum w age. This is especially so when we recall again that Co ngress e nacte d the FLSA in part to

en su re workers re ceive a t least a minimum wage. S chuma nn , 803 F.3d at 1207

. S o any interpret ation of th e dual

- jobs reg ula t ion mus t , of course, likewise guarantee at least a minimum wage. The language of the dual

- jobs re gulation also provi des clu es. A s we h ave discussed, it ex plains that an employee can simultaneously be employe d as a tipped e mployee an d a s a non - tipped emp l oyee if she works in two different occupations. And we know from the FLSA that the employe r may take the tip credit only when the emplo yee is employed in a tipped occ upation. See 29 U.S.C. § 203. So reading t he dual

- jobs regulation in conjunction with t he FLSA requires the conclusion that an employe r may not take the tip credit for any time that it requires the emplo yee to engage in dut ies that are not par t of the tipped occupation

. By using the term “ occasio nally , ” the dual

- jobs r egu lation also inform s us that a tipped employee may perform nontipped duties that ar e a part of her tipped

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 47 of 7848 occupation only “ fro m time to tim e[;] [n]ot habitu al [ly] ; infreque nt [ l y]

. ” Occasional, Th e American Heritage Dictionary , at 1215 (4t h ed.). And t h e w ord

“ substantial, ” which qua ntifies how much time spent on related untipped duties is
too muc h time, means “ consider able in quantity. ” https://www.merriam

- webs ter.

com /dictionary/substa ntial (last visited S ept. 1 5, 2021)

. We concl u de that a twenty

- percent limit on the hours in which a tipped employee may perform untipped related task s best compl ies with the temporal limits the regulation places

on such duties. T his is so for t hree reasons.
F irst, while the term “ infrequently ” does not have a precise meaning, twent y percent of the time aligns with its g eneral meaning

. So it is consistent with th e dual

- jobs regulation ’ s ordinary meaning. See Fast , 638 F.3d at 8 8 1

.

Second, as other courts have observ ed, the Department o ften invokes a twenty

- percent threshold in distinguishing between substantial and nonsubstantial work in different contexts within the FLSA

. See i d. (citing 29 U.S.C. § § 213(a)(12) , 207( k), 214(a)(1 5); 29 C.F.R. §§ 783.37, 553. 2 12(a), 552.6) ; Marsh , 905 F.3d at 629 (c i ting 29 U.S.C. § 213(c)(6)(G), 29 C.F.R. §§ 552.5, 552.6 ( b), 786.150, 786.1, 786.100, 786.200)

. In this way, within the context of the FLSA, a line between subs tantial and occasional w ork has come to be underst ood as 2 0 percent. And as we have noted, t h e Eighth and Ninth Circuit s have prev iou sly

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 48 of 7849 co ncluded that a twenty

- percent limitation reasonably construes the dual

- jobs regulation. See F ast , 638 F.3d at 879

- 81; Marsh , 905 F.3d at 62 3.
T hird, twenty percent is consistent with thirty years of DOL inte r pretation of the dual

- jobs regulation

— through administrations of both political parties. And here, that means somet hing. After all, t he DOL has expertise in the subject matter that th e dual

- jobs regulation regulat es, and in the 2021 NPRM , the Department noted and demonstrated that it ha d arrived at its 2021 proposed rule

— which in part includes a twenty

- percent limit o n untipped, related duties

— through applying its
exper tise by qua n tify ing costs, analyzing tran s fers , a nd qu alitatively discuss ing benefits. See 86 Fed. Reg. 32818, at 32832

- 32843 (discussing the Department ’ s findings)

. Finally, we note that t hrough exam ples, the dual

- jobs reg ulation provides some guidance concerning the types of non tipped duties that are par t of the tipped occupation (rela t ed duties) and the kinds that are not (unre l ated dut ies)

. S o we know , for instance, that typical mainten ance du ties are not related to a server ’ s duties. On the oth er hand , setting t a bles, toasting bread, making c offee , and occasionally washing dishes o r glasses are , even though they do not directly produce tips. But to avoid a prohibited construction of the regulati on that embraces unrelated duties of the separate occupations of chef and dishwa sher, respectively, we understand a ll of these illustration s of duties related to a server ’ s

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 49 of 7850 occupation to have to do with single

- ste p , easily executed food and drink preparati ons or readying serving items , such as silverware, plat es, and dishes for
customers ’ immediate use

. Both categories of tasks directly supp o rt a server ’ s serving duties.
We therefore draw from this observation that the divid ing line between related and un related duties falls where untipped duties no longer di rectly suppor t tipped duties

. Th is interpre tat ion not only comports with the dual

- j o b s regulation ’ s content, it is also consistent with the purpose o f the dual

- jobs reg ulati on and the tipped

- emplo yee provision it pertains t o: ensuring that employers tak e the tip credi t for only those hours a tippe d employee works in a tippe d occupation, thereby avoiding circu mvention of the minimum wage.
3.

a. Ma terial issues o f fact remain concerning Rafferty ’ s du al

- jobs claims Denny’s contends that it is entitled s um m ary judg m ent o n Counts Two and Three, the related

- duties and non

- tipp ed time issue s , even if we don ’ t rely on the 2018 Opinion Letter to interpret the dual

- jobs reg ulation

. We disagree.
i. Materia l issues of fact exist about whether Rafferty engaged in work tha t di d not directly support her tip ped occupation while being paid as a tip p ed employee
W e conclude that a genuine dispute of material fac t exists as to whether Rafferty performed any work th at is unrelated to her tipped occupati on as a server
.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 50 of 7851 Ra f ferty f i l ed a sworn declaration in which she attested she performed m yriad duties that were unrelated to her server job

. See Liebman v. Metropol itan Life Ins.
Co. , 808 F.3d 1294, 1300

- 01 (11th C ir. 2015) (holding that the distr ict court erred by grant ing summary jud gm ent where nonmov ant offered declarations that created
g e nuine dispu t e of material fac t, the declarations were not contradicted by cl ear testimony, and the district cou rt never ruled on admissibility of declarations before granting summary jud gment) ; s ee al so Furcron v. Ma il Centers P lus, LLC , 843 F.3d 1295, 13 0 3 n.2 (11th C ir. 2016) (“ Neve rtheless, [sworn] declaratio ns are afforded the same legal wei ght as affidavits, a nd are treated acc ordingly. ” ) (citing
28 U.S.C. § 1746)

. Among these w ere w iping d own m icrowave and stoves ; washing and scrubbing walls; clean ing and scrub b ing refrigerators, sin ks, trays, and bins; and de tail cleaning the exp edit er l ine. T hese duti es plainly do not qualify as work that directly suppor ts tip

- prod u cing work . So to the ext e nt that a jury might find tha t she engaged in t h ese tasks while Denny ’ s took the tip credit for her hours, Raff erty identified a material issue of fact that preclud es summary judgment on Count Two, her related

- dutie s c lai m
.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 51 of 7852 2

. M a teria l issues of fact ex ist conce rning whether Raffer t y spen t mor e than t w enty percent of her time performing non

- tipped , related duti es while she was pa id as a ti pped employee As for Raff e rty’s claim that she performed related duties more th a n twenty
per ce nt of th e time, Denny’ s argues that the district cou rt correctly gran te d

s ummary judgment because Rafferty cannot identify the parti cular work week or weeks in w hich s he spent more than tw enty percen t of her time performing non

tip ped duties that were re la ted to h er tipped occu pation

. We disagree. To estab lish a claim for a v iolation und er the FLSA, Rafferty must show only that she pe rformed work for which she wa s not properly com pensated. Anderson v. Mt. Cleme ns Pottery Co. , 328 U.S. 680, 6 8 6

- 87 (1946) , sup ersed ed by

s tatute on other grounds , Portal

- to

- Po rtal Act of 1947; A l len v. Board of Public Educ. for Bi bb County , 495 F.3d 1306, 1315 (11th Cir. 2007). Beca use of “ the remedial nature of [the FLSA] and the great public policy which it em bodies, ”

cou rt s a re ca reful to const rue the s ta tu te so as not to c reate impossible hu r dles for employees. Allen , 495 F.3d at 1315 ( cleaned up ).
T owards that end, we have emph asi zed that it is the duty of the employer

— not the employee

— to keep track of the employee ’ s “ wa ges , hou rs, and other condition s of employment. ” Id

. That is so bec au s e the emp loyer enjoys a better position to be aware of and c reate records of the most pro bative facts about the
natu re and amount of work p erformed. I d. And deny ing a c laim simply be cau se USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 52 of 7853 th e employee can not produ ce records of her tim e worked would re wa r d an employer ’ s failure to comply with its statutory duty to maintain proper records. I d

. So though an employee doe s not have docume ntation of the precise number of hour s she worked a nd how s he spent those hours, s he nonetheless satisf ies her burden if s h e “ proves that [she] has in fact performed work for which [s he ] was impro perly compensate d and if [she] produces suf ficient evidence to show the amount and extent of that work as a m at ter of j ust and reason able infe rence. ” Ander son , 38 2 U.S. at 687. T he burden then sh ifts to the employer to produce either evidenc e of the specific amount of work the employee performed or evidence that tends to refute the reasonableness of the inferen ce th e e mploy ee seeks fo r the fac tfinder to draw from her evidence. Alle n , 495 F.3d at 1316. If the employer does not satisfy this prod uction burden, the court may award damages to the emp loyee, even if the award represents an estimat io n. Id

. Though Al len w as

an ov ert ime c ase , not a d ual

- jobs case, the pr inciple remains the same here

. Here, Rafferty testified and met her burden in the v ery por tion of her deposition tha t Denny’s cite s to s ay otherwise

. When asked if she could p rovide evidenc e to a jury that she work ed a certai n nu mber of hours i n a par ticu lar workweek, Raff e r ty testified , A . I mean, I guess I really don ’ t know exactly on any pa rticular weeks. Anythi ng n ear holidays, anythi ng that was busy, there was more time sp ent doing more cleaning an d more s i dewo rk typicall y at the end of the USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 53 of 7854 shift on any busier weeks tha t I had worked at any point in time. Q. But you can ’ t identify a ny part icular weeks, sitting here today, correc t? A. Correct. Q. Do you know the percentage o f time that yo u spent doin g sidewo r k du ring any pa rtic ular we ek? A. P robably abo ut between 30 and 5 0 percent of the time. 19 Rafferty a lso went through the particul ar so - called sidework re sponsibilities she had and identified how muc h time ea ch duty took

. S he explained she was generall y assigned te n sidew ork du ties per shift, and for in st ance, a single one of
t hos e duties might includ e c leaning all blenders and b lender lids, restocking and cleaning the hot

- fudge war mer, and scr u bbing the sink and water spots, thoroughly removing all s tains

— a group o f chore s that took her 25 to 30 minut es to
comp lete

. 20 And she a ttested that when she work ed with only two other servers, she spent about an hou r and a half perfo rming sidework out of the t wo or three hours total she worked

. This is fairly specific testimony con cerning t he amount of sidework Raffert y performed , and it satisf ies Rafferty ’ s burden to establish that she worked mor e than twent y pe rc ent of he r time doing untip ped related duties

.

19 In the same way, though Denny ’s asserts that Ra fferty testified tha t she was “not sure if there ’s any particular week [she] sp en t more than 20 per cent of [her] ti me doing sidework, ” viewed in context, t hi s testi mony again re f ers to the fact that Ra ff e rty could not id entify any specific we eks where that happened.

20 Becaus e the part ies have refer red to sidework as related duties, we assume for pur pos es of our analys is and without reg ard to the D epartment ’ s g uid anc e interpretin g the dual

- jobs regulati on that al l so

- call ed sidework tasks constitut e duties directly supporting tipped wor k

. USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 54 of 7855 Indeed, w e have re c o gnized that e vidence of “triggering factors ” for ide ntifyin g weeks when violations may have oc curred

— like the busy h oliday weeks and shorter shifts Rafferty described

— can en able a pl aint if f “to sho w the amount and

e xten t of [ her underpaid time ] as a matte r of just and reasonable inference

. ” Allen , 495 F.3d at 131 7

. Thus, t hat Rafferty could not pi npoint the particular weeks where he r related duties exceeded twenty percent of th e hour s she wo rked do es not somehow
aut omatically absolve Denny ’s of any allege d violations in paying Rafferty as a tipped employee when sh e spent more than twent y percent of her time performing

u ntipped du ties

. Rather, Denny ’ s must come forward wit h evidence t o nega te the
in ferences from Raff erty ’ s testimony that sh e worked more th an tw enty percent of her time in related duties at le ast som e of the time she was e mploy ed by D enny ’ s
. Because the record contains material issue s of fact concerning whe ther Denny ’ s requir ed Raffer t y to work more t han twen ty percent o f her time o n untipp e d related duties, summary judgment was not appropria te on Co unt T hree

. B. The dist rict court pr oper ly granted su mmar y judgment on Rafferty ’ s tip
- credit notification claim (Count One) The FL SA requ ires employe rs to provide notice to t heir employe e s relat i ng to their status a s tipped employees and the signi ficance of that status :

“ The preceding 2 s entences shall not a p ply with r espe ct to any tipped employee unless such em ployee has b een USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 55 of 7856 inf ormed by the employer of t he provisions of thi s subsecti on . . . . ” 29 U.S.C. § 203(m)(2)(A). Ov er the years, the D epartmen t has issued regulatio ns to clarify exactly what th is l a nguage requires. H ere, Rafferty assert s that Count
On e presses cl aims th at the De partment fai led t o comply with the re quirements of
29 C.F

. R. § 531.59(b) and 516.28(a)(3)

. We review each lia bility t heory in turn

. 1. The dist rict cour t correctly granted s ummary judgment to Denny ’ s on Rafferty ’ s notice claim under 29 C.F .R. § 5 3 1. 5 9
T he first reg ulati on at issue , 29 C.F. R. § 531. 5 9 , require s an employer to provide an employee with certain inf ormation befor e the employer m ay take advan tag e of the tip credi t. It pro vides in relevan t part , Pursuant to section 3(m)(2)(A ), an empl o yer is n ot eligible to ta ke the tip credit un less it has informed its tipped employees in advance of the employer ’ s us e of the tip credit of the pro visions of se ct ion 3(m)(2)(A) of t he Act, i .e. : The amount of the cash wage t hat is to b e paid to th e tippe d emp loye e by the emp loyer ; the additional amo unt by which the wag e s of the tipped employee are increased on account of the tip cred it claimed by the employer, wh ic h amount may not ex ceed the value of the tip s actually receive d by the em ployee; t hat all ti p s re ceiv ed by the ti pped employee must be ret ained by the employe e except for a tip pooling arrangement limited to emp loyees w ho cu stomarily and reg ularly receiv e tips; and that the tip credi t shall not appl y to any employee who has not been inf orm ed of t h e re quir ements in th is se ction. 29 C.F.R. § 531.59(b) (emphasis a dded). By its terms, this regulation requires the

e mployer to inform the employee of fi ve thin gs :

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 56 of 7857 (1) the amount of cash wage the emplo yer is payin g a ti pped employe e, w hich must be at lea st $2.13 per hour; ( 2) th e additional amount claimed by th e emp lo y er as a tip credit, which cannot ex ceed $5.12 (the d ifferenc e between the minimum required cash wage of $2.13 and th e current minimum wa ge of $7.25) ; ( 3) t hat the ti p cr edit claimed by the employer cannot exce ed th e amount of tips act ually receive d by th e tipped employee; (4) that all tip s received by the tipped employee are to be ret ained by the employee except for a valid tip pooling a rrangement l imit ed to employee s wh o customaril y and r egularly receive tips ; and (5) that the tip c redit will no t app ly to any tipped employee unless the e mployee has been informed of these tip credit p rovisions.
D epartment of Labor, W age and Hour Divisio n, Fact Shee t # 15

. Only the fifth provision i s at is sue h ere : that the tip cr edit will not apply to any tipped emp loy e e unles s th e employer advised the employee of all fi ve piec es of information that the regulati on requires

. 21 Denny’ s argues that Rafferty waived any claim for relief for a violation o f
29 C.F.R. § 531. 59 by f ailing to rais e it in her complaint. Specific a lly, Denny’s

21 Before the Department is s u ed 29 C.F.R. § 531 .5 9 in 2011, there w as some dispute about whether 29 U .S.C. § 203( m)(2)(A) r equ ired t he fifth item that the regula tion ide ntif ies

. See Schae fer v. Walker Bros. Enterprises, Inc

. , 829 F.3d 551, 556 (7th Cir

. 2016) (holding that conveying th is i nformati on w as not required by t he statute itsel f, and that 2 9 C.F .R. § 531.59 did not g overn c on duc t bef ore i t s issuan ce in 2011). B ut t he re gulation m akes this explicit, and Denny’s does not dispute that the re gulati on applies to Rafferty’s claims.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 57 of 7858 claims that bec ause Raffer ty f ailed to plead v iolations of the fifth requiremen t, she has waived that c laim. We disagree. Rule 8 requires “a short and plain statement o f the c laim sh o wing that th e ple a der is entitled to relief.” Fed. R. Civ

. P. 8(a)(2). The “[p]leadings must be

c onstrued so as to d o justice.” Fed. R. Ci v. P. 8(e).
In paragraph 5 of her complaint, Rafferty alleged , “Defendant viol ated the
F LSA by payin g serve rs sub

- m inimum, tip

- credi t wages without info rming th em of the tip

- credit provisions of the FLSA.” Raf fert y later iden tified the notice requi rement again , cit ing 2 9 U.S.C. § 203(m) and 29 C.F.R. § 531.59(b), an d she

a verred, “ The prereq uisites to taking a tip cr edit from the wages of an employee, whic h are set forth in 29 U.S.C. § 203 (m) and 29 C.F.R . § 531.59 (b ), state

. . . that the tip credi t shall not apply to a ny employe e wh o has not been informed of these require ments in thi s secti on.” As we have exp lained, Rul e 8 requir e s only that the defendant be given

n otice as to the claim being asserted and its grounds. See Gilmour v. Gates,
McD onald & C o. , 382 F.3d 1312, 131 5 (11th Cir. 2004). Th ese allegati ons suf ficientl y fulfilled that f unction

. With tha t out of the way, w e n ow t urn to the merits of the claim. We agree with the dis trict court that summary judgment on this claim was approp riate.
D enny ’ s filed the affidavit of A mber Demattio, the restaur ant m an ager who trai ned

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 58 of 7859 Raf ferty on her first day at Denny ’ s , in support o f its motion for summary judgment . In that affidavit, Dem attio attested that she advised Raff e rty that “ only those who re cei ved the tip credit inf orm ation would be paid on a tip cre di t bas is

— speci fically , tha t only ser vers (and not o ther job codes like h o stess, cook, etc.) were paid on a tip credit and that all servers received the same inform atio n about ho w the tip cr edit p roc ess worked during thei r o rientation and onboa rding. ” Thi s
st a teme n t satisfies the fif th requirement from t h e regulation, that the employer tell the employee “ that t h e tip credit will not apply to any t ipped employee unles s t h e employee has been informed o f these tip credit pro v isions .” 2 9 C. F.R . §
531. 59(b)(5)

. Raffer ty presented no evi dence to contradict D e mattio ’ s statement. Though she alleges that Denny ’ s admis sion that it did not include the fif th requirement in
any wr itten mat erials before 2019 un dermines Demattio ’ s st atement, we find no conflic t. Demattio did n ot say she gave Raf ferty written materia l s i nforming of the fifth requirement; she attested she ver bally advised Rafferty of it.
So t he district court corr ec t ly determined that no genuine dispute o f material
f

act existed and tha t Denny’ s was entitl ed to judgment on the tip

- credit noti fication

c laim under 29 U.S.C. § 203(m) a nd 29 C.F.R. § 531.59(b) as a matter of law

.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 59 of 7860 2. Rafferty did no t assert a claim under 29 C.F. R. § 516.28 Rafferty a lso contends she stated a claim und er 29 C .F.R. § 516.28 . Tha t
regu lation provides, (a ) With respect to eac h tip ped employee whose wages are determined pursuant to se ction 3(m) of the Act, the employer shall maintain and pre s erve payroll or ot her records co ntaining all the i nfo rmation and da ta re quired i n § 516.2(a) and, in addition, the fo llowin g:

. . . (3) A moun t by which the wages of each tipped employee have been deemed to be increased by tips as d etermined by the emplo y er (not in excess of the diffe re nce between $2.13 and the applica ble min imum w ag e specified in sec tion 6(a)(1) of the Act ). The amou nt per hour whi ch the employer takes as a tip credit shall be rep orted to the employee in writing eac h time it is changed f

r om the amount per hour taken i n the preceding week

. 2 9 C.F.R. § 5 16.28(a )(3). R afferty asse rt s th at Denny’s violated this regulation by
f

a iling to provide updated information about the amount of t he tip credit it was taking each tim e that the Ohio minimu m wage rate ( and thu s the amoun t t hat Denny’s was cl ai ming as a ti p credi t ) chan g ed during Ra fferty ’s employment.
Den ny’s responds tha t Ra f f

erty waiv ed this theory of relief because she did
not rai se it in her complaint. This time w e agree with Denny ’ s. A defendant i s not required to infer all possible c la ims th at cou ld aris e out of the facts s et for th in the compl aint

. Gilm our , 382 F.3d a t 1315. And plaintiffs may USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 60 of 7861 not “raise new claims at the s ummary judgment stage.” White v. Bel tram Edg e Tool S upply, Inc. , 789 F.3d 1188 (11th Cir. 2015)

. Unlike with th e other theo ry cont ained in Count One, Raffer ty d id n ot so much as mention 29 C

. F

. R

. § 516.28(a)(3 ) at all in her c omplaint , let alone in
Count One

. We can discern no g rounds on w hich Denny’s could hav e been

ex pected to understand t hat Rafferty was allegi ng a cause o f actio n based on Denny ’ s f ailur e to update the tip credit notice every y e ar. See White , 789 F.3d at
1 200 (stating that there was n o basis for def en dant to conclude th at plaintiff was alleg i ng employer

- notice c ause of ac tion under FLSA where c omplaint con tained no menti on of lack o f noti ce )

. Because Raffe rty failed to suffici e ntly plead violati on s of 29 C

. F

. R

. § 516.28(a)(3) , we conc lude the district court correctly de clined to consider thi s theory and granted summary ju dgment to Denny ’ s on Co unt One. 22
I V . For t he reaso n s we have expla in ed , we a ffirm the district court ’ s entry of summary judgment on Count One, and we reverse its entry of summary judgment

22 Rafferty also a rgue s that the district court erre d in treating her allegations that Denny ’s viol at ed 29 C.F.R. § 516 .2 8 ( a)(3) as a clai m th at is sep arate from her claim that Denny ’ s violated 29 U.S.C. § 203(m) ’ s no tice p rovision

. While we agree that a violation of 29 C.F .R. § 516.28(a)(3) ultimately cons titutes a vio latio n of 29 U.S.C. § 203(m), tha t fact does not r elieve a plaintiff of t he obligation to put the defendant on notice of the way s in which the plaintiff alleges the def endant violated the statute. As we have expla ined, Rafferty failed to do t hat with resp ect t o her theory as it pertains t o D enny ’ s allege d viol at ion of 29 C

. F

. R

. § 516.28(a) (3) , so the district c ourt corre ctly grant ed summary j udgment on Rafferty ’ s notice violation under 29 U.S.C. § 203(m) and 2 9 C.F .R. § 53 1.59( b)

.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 61 of 7862 on Counts Two a nd Three. We remand t h e case f or further proceeding s consistent with this o pinion.
AFFI RMED IN PART; R E VERSED AND REMAND ED IN PA RT. USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 62 of 78LUCK, Circuit Judge, concurring in the result: The majority opinion reverses summary judgment for Denny’s, Inc. because the district court erre d in giving Auer v. Robbins , 5 19 U.S. 452 (1997) deference to the Department of Labor’s 2018 Opinion Letter interpreting the dual jobs regulation, 29 C.F.R. § 531.56(e) . The majority opinion explains that the 2018 Opinion Letter should not get Auer defere nce because , although the dual jobs regulation i s genuinely ambiguous, the 2018 Opinion Letter is not a reasonable reading of the regu lation and the Letter’s character and context are not worthy of controlling weight. I agree that the district court erred in giving Auer deference to
t he 2018 Opinion Le tter , but I think it erred because the dual jobs regulation is not genuinely ambiguous. Like the majority opinion, I would reverse and remand , but I would reverse and remand for the district court to apply t he unambiguous text of the dua l job s regulation instead of the Department of Labor’s opinion letters purporting to interpret the regulation.
* * * *
T he Fair Labor Standards Act requires an employer to pay a non - exempt employee no less than the federal minimum wage, 29 U.S. C. § 20 6 ( a), but an employer can , in certain circumstances , take a tip credit and pay a tipped employee less than the minimum wage , id. § 20 3 ( m)(2)(A). A “tipped employee” means
63 USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 63 of 7864 “ any employee engaged in an occ upation in which [s] he customarily and regular ly receives more than $30 a month in tips. ” Id. § 20 3 ( t). An employer can only take

a tip credit where the amount of tips the employee receives is at least equal to the difference between the federal minimum wage and the tip credit wage. I d. § 20 3 ( m)(2 )(A)(ii). Thus, the employee’s tip credit wage , coupled with the tips she receives , en sures that her hourly wage at least equals the federal minimum
wage. To implement the Act’s tip credit provision, the department issued t he dual jobs regulation, 29 C. F.R. § 531.56

. T his regulation provides: (e) Dual jobs. In some situations an employee is employed in a dual job, as for example, where a maintenance man in a hotel also serves as a waiter. In such a situation the employee, if he customarily and regularl y receives at least $30 a month in tips for his work as a waiter, is a tipped employee only with respect to his employment as a waiter. He is employed in two occupations, and no tip credit can be taken for his hours of employm ent in his occupation of maint enance man. Such a situation is distinguishable from that of a waitress who spends part of her time cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses. It is likewise disting uishable from the counterman w ho also prepares his own short orders or who, as part of a group of countermen, takes a turn as a short order cook for the group. Such related duties in an occupation that is a tipped occupation need not by themselves be direc ted toward producing tips.
29 C.F.R. § 531.56 (e). Rafferty ’s complaint alleged that De nny’s violated the dual jobs regulation in two ways. In count two, she said that Denny’s made her perform

non - tipped labor “unrelated” to her tipped occupation while p aying her the tip

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 64 of 7865 credit wage
. And in count three, Rafferty maintained that Denny’s mad e her perform non - tipped labor “ related ” to her tipped occupation more than “part of the time” (or for an “unreasonable” amount of time )

. I n 2018, the department mad e two major changes to its int erpretation of the dual jobs regulation. See U.S. Dep ’ t Labor, Wage & Hour Div., Op. Ltr. FLSA

2018

- 27, 2018 WL 5921455 (Nov. 8, 2018). First , the departmen t disclaimed any

“ limitation on the amount of duties related to a ti p - producing occupation that ma y be performed ,” provide d that these related duties “a re performed contemporaneously with direct customer

- service duties[.]” Id. at *3. Second, the department said that employers should rely on the “Occupational Information Network” ( “ O*NET ” ) to determin e whether a specific tas k is “directly related to the tip

- producing duties ” of an occupation

. Id.
T he question for us is whether the district court erred by giving Auer deference to the 2018 Opinion Letter. In Kisor v. W ilkie , 139 S. Ct. 2400 (2019), the Supreme Court clarified when a court should

— and shouldn’t

— give Auer deference to an agency’s interpretation of one of its regulation s
. Deference is appropriate only whe re : (1) the regulation is “g enuinely ambiguous ”; (2 ) the agency’s interpr etation of its ambiguous regulation is “reasonable ”; and (3) a
court’s “ independent inquiry ” into the “ character and context of the agency interpretation ” shows that it’s entitle d to “ controlling weight .” Id. at 2414

– 16.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 65 of 7866 The traditio nal “ canons of construction” a pply to regulations just like they apply to statutes

. Cremeens v. City of Montgomery , 602 F.3d 1224 , 1227 (11th Cir. 2010). Although there was “ a time when a court faced with a regulation that seemed ‘impenetrable on first r ead’ might simply ‘wave the am biguity flag’ and defer to the agency’s interpretation,” those days are over. See United States v. US Stem Cell Clinic, LLC , 998 F.3d 1302 , 1308 (11th Cir. 2021) ( quoting Kisor , 139
S. Ct. at 2415). “ Before declaring a regul ation genuinely ambiguous, we must exhaust all the traditional tools of construction, which entails carefully considering the text, structure, history, and purpose of the regulation

. ” Id. (cleaned up). We can only proceed to the s econd and third steps of the Auer deference analysis i f “our tools of construction” cannot “resolve the apparent ambiguity.” Id.

“ [A] regulation is not ambiguous merely because ‘discerning the only possible interpretation requires a taxing inquiry.’” K isor , 139 S. Ct. at 2415 (quoting Pauley v. BethEnergy Mines, Inc. , 501 U.S. 680, 696 (1991) (Scalia, J., dissenting)). We can often show that even “impenetrable” regulations that “make the eyes glaze over” have an unambiguous meaning once we use our “leg al toolkit.” Id. A reg ulation is ambiguous if (and o nly if), after exhausting the tools of construction, it “remains genuinely susceptible to multiple reasonable

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 66 of 7867 meanings.” Id. at 2419. Not multiple reasonable applications

— multiple reasonable meanings. 1

1 The Kisor Court’s de finitio n of ambiguity as “ multiple reasonable meanings”

— rather than applications

— is not some special term

- of

- art definition

. Ambiguity is a legal term and the legal dictionaries define it that way. See , e.g. , Ambiguity , A Dictionary of Modern Legal Usage 48 (2d ed. 1995) ( “A ‘ambiguous’ word or phrase is one capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usa ges and terminology as generally understood in the particular trade or business.” (quotation omitted)). So do the non

legal dictionaries. See, e.g. , Ambiguity , Cambridge Dictionary, https://dictionary.c ambridge.org/us/dictionary/english/ambiguity (last v isited Sept. 13 , 2021) (defining ambiguity as “(an example of) the fact of something having more than one possi ble meaning and therefore possibly causing confusion” (emphasis added)).
But Kisor is a s hif t from how the Supreme Court previously applied the Auer deference doctrine. See Daniel Lutfy, Note, Auer 2.0: The Disuniform Application of Auer Deference After Kisor v. Wilkie , 88 Fordham L. Rev. 2011, 2018 (2020) (“This Note addresses, in part, how Kis or ’s formulation of Auer deference represents a shif t from the Court’s prior iterations of Auer in Decker

. ” (footnote omitted) ) ; Andrew Schneider & Jonathan Stroud, The Eleventh Auer: The Effect of Kisor v. Wilkie on Rulemaking and Adjudication at the Unit ed States Patent and Trademark Office , 19 Chi.

- Kent J. Intell. Prop. 485, 504 (2020) (“ Kisor may seem like small potatoes, but it represents a shift in the landscape of administrative law that will be felt for years to come. ”) ; Gillian E. Metzger, The Robe rts Court and Administrative Law , 2019 Sup. Ct. Rev. 1, 65 (2019) (“One need look no further than the aftermath of Kisor to se e this effect. In the four

- month period after Kisor ’s issuance, the courts of appeals directly considered whether to apply Auer d eference in light of Kisor in thirty cases and defer red to the agency’s approach in only ten of those. In an additional five cases, the court declined deference but ultimately upheld the agency’s interpretation, for an overall rate of the government preva iling 50 percent of the time. By comparison, studie s of the years leading up to Kisor have identified the courts as granting Auer deference or the government as prevailing 71 percent of the time.” (footnotes omitted)).
As the Kisor Court explained , it took the opportunity to “somewhat expand on” its Aue r deference doctrine , including its discussion of ambiguity, so the Court could “clear up some mixed messages [it] ha [d] sent ” in past cases. 139 S. Ct. at 2414. The Court , not so silently, conceded tha t its pre - Kisor decisions had “applied Auer deferenc e without significant analysis of the underlying regulation,” had “ given Auer deference without careful attention to the nature and context of the interpretation ,” and its “ most classic formulation of the test

— whether an agency ’ s construction is ‘ plainly e rroneous or inconsistent with the regulation ’

— may suggest a caricature of the doctrine, in which deference is ‘ reflexive. ’” Id. at 2414

– 15 (quoting Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414 ( 1945)). As Justice Gorsuch put it, b efore Kisor , “[ t]here [were] innumerable lower court decisions that . . . followed [the Supreme] Court’s lead and

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 67 of 7868 This isn’t some rei nterpretation of three words f rom Kisor

. This is what Kisor told us to do. Over and over again, the Supreme Court explained that terms and phrases in a regulation are genuinely ambiguous where their “ meaning ”

— rather than their application

— is unclear

. Se e , e.g. , id. at 2415 (explaini ng that
Auer deference is appropriate only “if the meaning of the words used is in doubt” (quotation omitted)); id. at 2419 (“As we have explained, a court must apply all traditional methods of interpretation to any rule, and must enforce the plain meaning those methods uncover ”); id. at 2420 ( “ [T] he meaning of a legislative rule remains in the hands of courts, even if they sometimes divine that meaning by looking to the agency ’ s interpretation” )

. Because the focus is on meani n g, the Supreme Court remanded for the Federal Circuit to “m a ke a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the

afforded Auer deference mechanically, without conducting the inquiry the [ Kisor ] Court now holds is requi red.” Id. at 2447 (Gorsuch, J., concurring in the j udgment)

. Kisor , by requiring genuine ambiguity, “cabined Auer ’s scope in varied and critical ways” in order to maintain “a strong judicial role in interpreting rules.” Id. at 2418 (majority opinion). That’s wh y the Supreme Court criticized its own dec isions , including Seminole Rock , and why relying on pre - Kisor cases may not be helpful. And that’s why, post

- Kisor , our analysis should be refocused on where Kisor told us to focus: on whether a regulat ion is genuinely susceptible to multiple reasonable meanings

. To the extent we are left with a r egulation that has an unquestioned meaning, but uncertain application to various factual situations, all is not lost and the courts are not left on their own. The executive agency, through the Administrative Pr ocedures Act, can clarify the regulation and fix the vagueness problem through the rulemaking process. That’s exactly what the Department of Labor is doing right now with the dual jobs regulation. But, after Kisor , what the agency cannot do is disregard the Act and the rulemaking process by issuing a letter purporting to interpret an unambiguous regulation without notice and without giving reasoned consideration to the public’s comments.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 68 of 7869 regulation” at issue in Kisor “really has more than one reasonable meaning.” Id. at 2424. As Justice S calia explained, “ [a] word or phrase is ambiguous when the question is which of two or more meanings applies; [but] it is vague when its unquestionable meaning has uncertain application to various factual situations.” A. Scal ia & B. Garner, Reading Law: The Interpretation of Legal Texts 32 (2012) ; Ambiguity , A Dictionary of Modern Legal Usage 48

– 49 (2d ed. 1995) ( “ Ambiguity should be distinguished from vagueness : ‘It is un fortunate that many lawyers persist in using the word ambiguity to include vaguenes s. To subsume both concepts under the same name tends to imply that there is no difference between them or that their differences are legally unimportant. Ambiguity is a d isease of language, whereas vagueness, which is somet imes a disease, is often a
pos itive benefit. . . . Whereas ambiguity refers to equivocation, vagueness refers to the degree to which, independently of equivocation, language is uncertain in its respecti ve applications to a number of particulars

. . . .’ O f course, even highly reputed legal writers confuse the two terms . . . .” (quoting R. Dickerson, The Interpretation of Statutes 48

– 49 (1975)). In other words, b eing hard to apply might

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 69 of 7870 make the regulation vague . But it does not make the regulation ambig uous and susceptible to multip le reasonable meanings. 2
The Kisor Court understood the critical difference between more - than

- one meaning ( ambiguity ) and uncertain application ( vagueness ) . I n cabi ning the scope of the Auer deference doctrine , Kisor explaine d that “[f] irst and foremost, a court should not affo rd Auer deference unless the regulation is genuinely ambiguous. ”
139 S. Ct. at 2415. Right after the phrase “genuine ambiguity,” the Court q uoted from Seminole Rock that Auer deference should be afford ed “only ‘if the meaning of th e words used is in doubt.’” Id. (quoting Seminole Rock , 325 U.S. at 414).

2 J ustice Sca lia was pretty consistent about focusing the ambigui ty question on whether words or phrases have different “meanings” (rather than applications). See, e.g. , Util. Air Regul. Grp. v. E.P.A. , 573 U.S. 302, 321 (2014) (Scalia, J.) (“A statutory provision tha t may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” (cleaned up)); United States v. Santos , 5 53 U.S. 507, 512 (2008) (Scalia, J.) (“Since context gives meaning, we cannot say the money

- laundering statute is truly ambiguous until we consider ‘proceeds’ not in isolation but as it is used in the federal money - laundering statute.”); Smiley v. Citibank (S.D .) , N.A. , 517 U.S. 735, 739 (1996) (Scalia, J.) (“ It is our practice to defer to the reasonable judgments of agencies with regard to the meaning of ambiguous terms in statutes that they are charged with a dministering. ”); United States v. Gaudin , 515 U .S. 506, 519 (1995) (Scalia, J.) (“Though uniform po stratification practice can shed light upon the meaning of an ambiguous constitutional provision, the practice here is not uniform, and the core meaning of t he constitutional guarantees is unambiguous.”) ; Int’l Union, United Auto., Aerospace & Agric. Imple ment Workers of Am. v. Donovan , 746 F.2d 855, 861 (D.C. Cir. 1984) (Scalia, J.) (“ We think, to the contrary, that the lump

- sum appropriation has a well understood meaning, and that the legislative history described above does not give content to an ambiguo us enactment but rather reflects the congressional comprehension of a clear one. ”)

. And t o the extent Justice Scalia criticized the Supreme Court’s e arlier decisions giving Auer deference to imprecise and vague regulations, the Kisor Court , in “clear[in g] up” and “expand[ing] on” the Auer deference doctrine, used his approach to ambiguity by requiring “multiple reasonable meanings” and adopted his dissenting opinion in Pauley

. S ee id. at 24 14

– 15 , 2419 (quoting Pauley , 501 U.S. at 707 (Scalia, J., dissen ting) )

.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 70 of 7871 While the Supreme Court homed in on the “meaning of the words used , ” it didn’t mention the words “vague” or “vagueness” in the genuine ambiguity secti on of the opinion. See id. ( d iscussing the first step of the Auer deference doctrine). Vagueness only came up six pages later in sec tion III

- A

. A fter explaining how to apply Auer deference, Justice Kagan respond ed to the petitioner’s argument that “ Aue r encourages agencies to issue vague and open

- ended regulations, confident that they can later impose whatever interpretation of those rules they prefer. ” Id. at 2421

. Writing only for a plurality of the Court, Justice Kagan reject ed the argument that Au er deference encourages vaguen ess because “[v] agueness increases the chance of adverse judicial rulings , ” and “i t enables future administrations, with different views, to reinterpret the rules to their own liking

. ” Id. V agueness isn’t mentioned in the ge nuine ambiguity part of Kisor , but instead comes up si x pages later in a completely different section of the plurality , becaus e vagueness and ambiguity are different legal concepts. Justice Gorsuch , in his Kisor opinion concurring in the judgment, also
t ouched on the difference betwe en vagueness and ambigui ty. H e discussed vague regulations , not in terms of “meaning,” but in terms of “ applications. ” See id. at 2 440 (Gorsuch, J., concurring in the judgment) (“ Whether or not regulations are designed to be vague, many can be read in di fferent ways, especially when new and unanticipated applications arise; cases like that come before the courts all the

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 71 of 7872 time. ” (citation and quotation omitted; emphasis added)). And Justice Gorsuch talked about ambiguity , not in terms of “applications,” bu t in terms of “ meaning. ”
See id. at 2446 (Gorsuch, J., concurring in the judgment) ( “ We begin our interpretation of the regulation with its text and, if the text is unclear, we turn to other canons of interpretation and tie

- breaking rules to resolve the ambiguity

. And when we interpret an ambiguous statute , w e never ask what current members of Congress think it means ; in fact, we ’ ve held unanimously that legislators’ post

enactment views about a statute ’ s meaning are not eve n a legitimate tool of
statuto ry interpretation. Affording controlling weight to regulators’ post

promulgation views about the meaning of an ambiguous regulation is hard to square with these usual judicial practices. ” ( quotations and footnotes omitted;

em phasis added) ) ; see also id. a t 2442 (Gorsuch, J., concurring in the judgment) (“ Proceeding farther down this doubtful path, Justice K agan asserts that resolving ambiguities in a regulation sounds more in policy than in law and is thus a task

m ore suited t o executive officials than jud ges. But this claim, too, contradicts a basic premise of our legal order: that we are governed not by the shifting whims of politicians and bureaucrats, but by written laws whose meaning is fixed and ascertainabl e

— if not by all members of the public, the n at least by lawyers who can advise them and judges who must apply the law to individual cases guided by

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 72 of 7873 the neutral principles found in our traditional tools of interpretation. ”) (emphasis added)

. So, after Kisor , how are wo rds and phrases genuinely susc eptible to multiple reasonable meanings ? A classic example of genuine ambiguity can be found in the celebrated case of Raffles v. Wichelhaus , 2 H. & C. 906, 159 Eng. Rep. 375 (Ex. 1864). There, the plaintiff agreed to sell t o the defendant a cargo of cot ton arriving on a ship, the Peerless, sailing from Bombay. But, remarkably enough, there were two ships named Peerless sailing that year fro m Bombay, “one in October, the other in December.” O. W. Holmes, The Common Law 309 (1881). “The plaintiff
meant the latter, the defendant the former.” Id. That’s true ambiguity. The unlikely coincidence of two ships with the same name sailing from Bo mbay in the same year made it reasonable for the parties to ascribe “two totally diff erent meanings” to the same le gal text. See Scalia & Garner, Reading Law , at 31.
Here’s a nother textbook example of genuine ambiguity : what does the word “chicken” m ean? T hat question was hotly contested in Frigaliment Importing Co.
v. B.N.S. Intern ational Sales Corp. , 190 F. Su pp. 116 (S.D.N.Y

. 1960) , a case about a contract for the sale of chicken. The buyer, who understood chicken to mean a “young chicken, suitab le for broiling and frying,” cried foul when the seller delivered older birds meant f or stewing. Id. at 117. Beca use it was reasonable for the parties to give a different meaning to the same word, the district court looked to

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 73 of 7874 the parties’ negotiations, c ourse of performance, and trade usage to resolve the ambiguity. That’s what it takes for language to be ambiguous: it must be

“ genuinely susceptible to multiple reasonable meanings .” See Kisor , 139 S. Ct. at
241 9. For the dual jobs regulation, the very first tool in the box

— “ the plain language of the regulation”

— resolve s any a pparent ambiguity. See Landau v. RoundPoint Mortg. Servicing Corp. , 925 F.3d 1365 , 1369 (11th Cir. 2019) (explaining that “ [w]hen we construe regulations, we begin with the language of the regulation, just as we do for statutes”); Kisor , 139 S. Ct. at 24 4 6 (Gorsuch, J., concurring in the judgment) (explaining that “[w]hen we interpret a regulation, we typically . . . proceed i n the same way we would when interpreting any other written law: We begin our interpretation of the regulation with its text” (quot ation marks omitted)). The d ual jobs regulation says that it’s permissible for a tipped employee to “ occasionally ,” or “ pa rt of [the] time ,” perform non

- tipped duties “related” to the employee’s tipped occupation , even if these related duties aren’t

“ the mselves [] directed toward pro ducing tips .” 29 C.F.R. § 531.56 (e). The regulation’s key words

— “related” and “occasionally”

— have plain and ordinary meanings in this context that we can readily discern. “Related” means “ connected or associated, as by ori gin or kind. ” Related , Webste r’s New World Dictionary 1198 (2d ed. 1970); accord Related , Webster’s

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 74 of 7875 Seventh New Collegiate Dictionary 723 (1969) (defining “related” as “connected by relation”). When there is a connection or association between two differ ent things, they are r elated t o each other even if they are not identical. That’s the ordinary meaning of “related.” See Cont’l Cas. Co. v. Wendt , 205 F.3d 1258 , 1262

– 63 (11th Cir. 2000) (affirming the district court’s conclusion that the “words ‘relate’ or ‘related’ ” are unambiguous and “ commonly understood terms in everyday usage”). Thus, a duty is “related” to an employee’s tipped occupation where there is a connectio n or association between the duty and the occupation. For example, a cook who washes pots and pans has performed a task “related” to her occupation; there is an obvious link between having clean pots and pans and cooking a customer’s meal. 3 Helpfully, the dual jobs regulation gives us more examples of related and unrelated duties. A ho tel employee whose occupation is “ maintenance ” doesn’t perform a “related” duty when she “ also serves ” as a wait ress. See 29 C.F.R. §

3 Distinctly related, directly related, and indirectly related are different kinds of relatedness. But they do not mean “related

. ” They do not define “related.” T hey are their own separate and unique terms with their own separate and u nique mea nings

. Compare 45 C.F.R. § 153.365 (“If a State is operating a risk ad justment program, it must keep an accounting of all receipts and expenditures related to risk adjustment payments and charges and the administration of risk adjustment

- related functions and activities for each benefit year. ” (emphasis added)), with 45 C.F.R. § 73.735

- 704(a)(1) (“The work is not to be rendered, with or without compensation, to organizations, institutions, or state or local governments with which the official duties of the employee are directly related , or indirectly related if the ind irect relationship is significant enough to cause the existence of conflict or apparent conf lict of interest . . . .” (emphasis added) )

. It’s a matter of black letter law , rather than the ivory tower of linguistics , that we must “ give effect, if possible, to every clause and word of a statute.” Duncan v. Walker , 533 U.S. 167, 174 (2001) (quotat ion omitted). When regulation s use different words and phrases, they don’t mean the same thing; they have different meanings.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 75 of 7876 531.56 (e). There’s no connection b etween maintenance work, like fixing the plumbing or tiling the floor, and a waitress’ s work, like taking an order o r serving soup. The regulation also tells us that a waitress does perform a “related” duty when she spends time “ cleaning and setting table s, ” “ toasting bread, ” “ making coffee ,” or “ washing dishes or glasses .” Id. Wiping do wn tables for the next
custome rs or brewing coffee for them to drink are clearly connected to the waitress’s tipped occupation as a server, even if these duties aren’t “ themselves

. . . directed toward producing tips .” Id. The regulat ion’s other key word

— “occasionally”

— also has an ordinary meaning. “Occasionally” means “now and then” or “sometimes.” Occasionall y , Webster’s New World Dictionary 983 (2d ed. 1970)

. Something that happens occasionally doesn’t happen “most of the time” o r “frequent ly,” but it also doesn’t happe n “rarely.” In other words, it happens “part of [the] time.” See 29 C.F.R. §
531.56 (e).
But “ o ccasionally” does n’t mean ten or twenty percent or any other specific percent . No dictionary defines it that way and no ordinary person would under stand it tha t way. If your friend told you that she “occasionally” goes to the mall, you wouldn’t think she goes ten percent or twenty percent of the time. You would know exactly what she meant

— your friend goes to the ma ll every “now an d USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 76 of 7877 then.” 4 The friend

- at

- the

- m all is as good an example as any because, when we read the law, the general rule is that words and phrases must be given their ordinary meaning

— and not the meaning given years later by some technocrat laboring in the bowels of an agency
. See Gonzales v. C arhart , 550 U.S. 124, 152 (2007) (“ I n interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result. ”). The ordinary meaning of the dual jobs regulation allow s a tipped employ ee to perform, every “now and then,” non

- tipped duties related to her tipped occupation. These related duties can’t take up most of the employee’s time. Denny’s couldn’t make a server spend most of her shift cleaning tables or brewing

co ffee and then tak e the tip credit. But these r elated duties don’t have to be rare events to comply with the regulation. That’s what “occasionally” means.
* * * *
T he dual jobs regulation isn’t susceptible to two reasonable meanings

. Applying this unambiguous regulation to the particular facts of a specific case might prove challenging, but we may not reasonably give the regulation multiple meanings whe re its plain language allows for only one.

4 A waitress who “occasionally” takes on related duties may be doing the related work for nineteen percent of her shift or twen ty

- one percent. “Occasionally” may apply in lots of different circumstances and to lots of different fact patterns. But the word “occasionally” is not naturally understood or defined as nineteen, twenty, or twenty

- one percent of the time.

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 77 of 7878 Because the dual jobs regulation isn’t genuinely ambiguous, we s houldn’t reach the second and third steps of the Auer deference analysis. We should instead remand for the district court to apply the plain meaning of the regulation to Rafferty’s claims under section 531.56 (e). As to Rafferty’s claim in count two, the district court should determin e whether there is a genuine dispute that Rafferty performed duties “unrelated”

— in other words, “unconnected”

— to her tipped occupation as a server. As to Rafferty’s claim in coun t three, the district court should determine wh ether there is a genuine dispu te that Rafferty performed non

tipped duties related to her tipped occupation as a server more than “occasionally” or “part of the time”

— in other words, more than “now and then.”

USCA11 Case: 20-13715 Date Filed: 09/15/2021 Page: 78 of 78