Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Law360, in “DOL Asks Justices to Nix 9th Circ. Decision on Tip Pool Rule,” by Adam Lidgett. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Labor on Tuesday urged the U.S. Supreme Court to erase an “incorrect” Ninth Circuit decision that upheld a 2011 DOL rule regulating when so-called tip pools can be instituted by employers, but stopped short of backing full-blown high court review, noting that the agency has already moved to roll back the Obama-era regulations at the heart of the dispute.

The DOL’s Tuesday brief said the nation’s highest court should grant a January 2017 petition for certiorari from the National Restaurant Association and other trade groups, but only so it can vacate the 2016 appellate decision being challenged and kick the case back down to the lower court.

“Although the decision below is incorrect, important, and the subject of a circuit conflict, the court should grant certiorari, vacate the Ninth Circuit’s judgment, and remand for further proceedings rather than grant plenary review, in light of the government’s change in position and intervening statutory and regulatory changes,” the government’s brief said.

The Ninth Circuit decision backed a rule deeming tips the property of the employee who receives them, whether or not their employer uses tips to fulfill minimum wage requirements, which is known as taking a “tip credit.” That rule had amended the DOL’s interpretation of the Fair Labor Standards Act to bar all employers from taking a portion of service employees’ tips and sharing them with traditionally non-tipped workers, such as janitors and dishwashers. …

The trade groups’ petition for high court review argued that the Ninth Circuit’s majority holding that the 2011 rule passed muster granted too much power to the agency and created a split with the Fourth Circuit.

“The department’s latest filing indicates that the government has come to see the case the same way that we see it,” Paul DeCamp, an attorney for the petitioners, told Law360 on Wednesday. “We’re grateful that the department has been willing to revisit this issue and has taken the position it has now taken with the Supreme Court.”


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