Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in the Bloomberg Law Daily Labor Report, in “Fifth Circuit Panel Questions Labor Agency Limits on Tip Credit,” by Rebecca Rainey. (Read the full version – subscription required.)

Following is an excerpt:

Federal appeals court judges appeared skeptical of a US Labor Department rule requiring businesses to pay tip-earning employees the full minimum wage during their idle time.

US Court of Appeals for the Fifth Circuit Judges Jennifer Walker Elrod and James E. Graves Jr., as well as Louisiana federal court Judge Barry W. Ashe, heard arguments Monday from the Restaurant Law Center and the Texas Restaurant Association that the regulation goes beyond the DOL’s authority and should be vacated. …

Elrod focused her questioning on the rule’s requirements to pay tip-earning workers the minimum wage if they are doing non-tip-earning work for 30 minutes straight.

“I don’t understand” how the regulation could say that if the business is slow then that requires the higher rate, she said. “I thought the issue was whether you were making 30 bucks or not? And if you are making the $30 then you get the tipped employee rate?”

“You’re facing the same challenges with the regulation that we are,” said Paul DeCamp of Epstein Becker & Green PC, who represented the restaurant groups. “It’s not a workable regulation.”

The restaurant groups’ challenge contends the rule conflicts with the FLSA and violates the Administrative Procedure Act and the Chevron doctrine.

Audio from the session:


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