Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “Worker Advocacy Groups Ask 5th Circ. to Protect Tip Rule,” by Grace Elletson. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Labor was well within its purview to codify wage protections for tipped workers, a group of progressive workplace advocacy organizations told the Fifth Circuit, urging the appellate panel to knock down a challenge to the recent rule change on tipped wages.

A group of five organizations told the appellate panel Friday that it should reject concerns brought by the Restaurant Law Center and the Texas Restaurant Association that the DOL's rule change was arbitrary and capricious for failing to follow the proper rulemaking process. The DOL considered the opposing groups' testimony, and the court can't uphold their challenge just because they didn't like the outcome, the organizations said. "The department considered and reasonably addressed RLC's comments, which is all RLC, or any other commenter, was due," the advocacy groups said. …

Paul DeCamp of Epstein Becker Green, who represents RLC and TRA, said Monday that the organizations' amicus brief failed to argue how the FLSA gives the department the authority to issue the rule, which he said makes use of the tip credit "so unwieldy and administratively burdensome" that restaurants are likely to no longer use it.

"The brief seems to suggest that it is enough that the department went through a rulemaking process, received comments, and made certain cosmetic changes in the rule to provide clearer examples," DeCamp said. "But the Administrative Procedure Act requires much more, as does the Constitution."


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