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 Wage-Hour Recap: Challenges to Contractor, Tip Rules,” by Max Kutner. (Read the full version – subscription required.)

Following is an excerpt:

A federal court tossed a challenge to the U.S. Department of Labor's federal contractor minimum wage rule, prompting a notice of appeal, while the agency defended its tipped worker rule in another federal court.​

Here, Law360 looks at recent wage and hour news involving the DOL. …

Tipped Worker Defense in Texas

The DOL is facing a challenge to another rule in Texas federal court, where in a Jan. 20 response filing the agency argued against a request for a preliminary injunction by restaurant groups opposing its tipped worker rule.

Responding to a bid by the Restaurant Law Center and the Texas Restaurant Association against its rule limiting the amount of time a worker can perform nontipped work while earning subminimum tipped wages, the DOL argued that the rule was in line with the Fair Labor Standards Act.

The DOL also argued in the motion that the restaurant groups hadn't shown that the rule would cause irreparable harm and that the groups would have needed to bring their challenge sooner, given that the rule went into effect in December.

"Plaintiffs are too late," the DOL's motion said. "The rule has already gone into effect, costs to prepare for it have already been incurred and enjoining it now would only serve to sow confusion."

The FLSA says employers can pay tipped workers as low as $2.13 per hour if tips make up the difference between that and the federal minimum wage of $7.25 per hour.

Under the new rule, tipped employees can perform nontipped work for 20% of their shift and still earn the tipped minimum wage, but employers must pay full minimum wage to tipped workers who spend more than 30 minutes on uninterrupted side work that directly supports tip-producing activity.

The restaurant groups sued the DOL in December, alleging that the rule was illegal.

Paul DeCamp of Epstein Becker Green, who represents the groups, told Law360 on Jan. 21, "The regulation is an arbitrary and illegal power grab by the department."

A spokesperson for the U.S. Department of Justice, which is representing the DOL, previously declined to comment.


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