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 “DOL Tip Rule Nonsensical, Restaurant Groups Tell 5th Circ.” by Caleb Drickey. (Read the full version – subscription required.)
Following is an excerpt:
Two restaurant-industry business groups urged the Fifth Circuit on Wednesday to strike down a rule that would prevent employers from taking tip credits against servers' wages if they spend excess time performing untipped work, calling the rule an "ill-advised frolic."
In their brief, the Restaurant Law Center and the Texas Restaurant Association argued that workers earning subminimum wages for untipped tasks was a relative nonissue blown out of proportion by the U.S. Department of Labor.
Defining tipped employees strictly according to the amount of time they engage in tipped work, the groups said, was contrary to history and to the text of the Fair Labor Standards Act.
"What exactly is wrong with looking at the actual duties that employees in these occupations normally and historically perform?" the groups asked. "It is time for this court to put an end to the department's ill-advised, illegal and anti-statutory frolic and detour."
The groups are looking to unwind a Texas federal judge's July decision that a 2021 rule mandating the full minimum wage for tipped workers who spend more than 20% of their workweeks or half-hour stretches at a time engaged in untipped side work complied with the FLSA. …
The employer groups also argued that defining a worker's occupation, and therefore tip credit eligibility, based on the time spent performing tipped duties rather than a historical definition inclusive of all duties traditionally performed was unprecedented and improper. An occupation, the groups argued, referred to a job and all its component tasks, not to each individual task.
"The associations have found, aside from the final rule, no recorded use of the word 'occupation' anywhere in the history of the English language that bears any similarity to the manner in which the department has chosen to use the word," the groups said. …
Earlier this month, the DOL argued that the rule merely codifies a long-standing principle that employers must pay the full minimum wage to workers who spend less than 80% of their days seeking tips.
Paul DeCamp, counsel for the groups, said in a Wednesday statement that the DOL "has no basis for seeking to micromanage employment in the restaurant, hotel and gaming industries … on a minute-by-minute basis."