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: Restaurateurs Try to Block Tipped Worker Rule,” by Jon Steingart. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Labor is poised to roll out regulations for prevailing wage requirements on government-funded construction projects and announced plans to beef up its enforcement staff.

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

Restaurateurs Try to Block Tipped Worker Rule

Restaurant trade groups asked a Texas federal judge Wednesday to block a Wage and Hour Division rule that limits their ability to pay less than minimum wage to workers who earn tips, on the expectation that gratuities will make up the difference.

The Texas Restaurant Association and the Restaurant Law Center presented oral arguments on their motion for a preliminary injunction that would block the agency from enforcing the rule. They say the Fair Labor Standards Act allows employers to pay tipped minimum wage, but the DOL's rule establishes stricter standards than Congress authorized.

The rule, which took effect Dec. 28, says that employers may pay the lower wage only if employees spend less than 20% of their time or 30 minutes on tasks related to guest service, such as a server tidying a table or a bartender preparing drink garnishes. The 20% standard is known as the 80/20 rule, which the DOL has sometimes used as an internal guideline.

Paul DeCamp, an attorney for the plaintiffs, told Law360 that ​​many restaurants already comply with the rule's time limits. He's co-chair of Epstein Becker Green's wage and hour practice group and was WHD administrator under former President George W. Bush.

The main issue with the rule is that restaurants would have a difficult time maintaining the minute-by-minute timekeeping that would be needed to prove employees didn't spend too much time on side work, he said. Large chains would have an easier time absorbing the costs of defending a suit, but a single case could devastate a small business, according to DeCamp.

U.S. District Judge Robert Pitman is mulling the trade groups' motion and could grant or deny it at any time.

The case is Restaurant Law Center v. U.S. Department of Labor, case number 1:21-cv-01106, in the U.S. District Court for the Western District of Texas.


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