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 “Restaurant Groups Sue to Block New DOL Rule on Tipped Worker Pay,” by Kathleen Dailey. (Read the full version – subscription required.)

Following is an excerpt:

A Department of Labor rule requiring tipped workers get paid a higher minimum wage for time doing tasks that don’t produce tips drew a lawsuit from two restaurant-industry groups who say the agency overstepped its authority.

The new rule, which will take effect Dec. 28, would cause irreparable harm to thousands of restaurants and employees across the country, according to the complaint filed by the Restaurant Law Center and Texas Restaurant Association. The RLC is affiliated with the National Restaurant Association, which represents more than one million restaurants and food-service establishments across the country.

The groups asked the court to declare the rule invalid and block the DOL from enforcing it, because it’s arbitrary and capricious, conflicts with the Fair Labor Standards Act, and violates the Administrative Procedure Act and separation of powers. …

The complaint was filed Dec. 3 in the U.S. District Court for the Western District of Texas. It names as defendants the DOL, Secretary Martin J. Walsh, and Jessica Looman, acting administrator of the Wage and Hour Division.

With the rule, the DOL is “attempting to re-write” the FLSA’s tip-credit provision by arbitrarily breaking down occupations into different types of job duties, and mandating the tip credit be available for only some of tasks, the complaint alleges. This directly conflicts with the FLSA, which provides for the tip credit based on occupation, not duties, it says.

“Simply put, Congress never gave the Department the authority to slice and dice occupations into component tasks and to impose arbitrary and baseless caps on time spent on these tasks,” Paul DeCamp of Epstein Becker & Green PC, one of attorneys representing the plaintiffs, told Bloomberg Law on Monday.

Side work is also “an integral part of the tipped occupations commonly found in restaurants,” and there’s no industrywide standard for how much time employees should spend on these tasks, which can include cleaning, rolling silverware, and busing tables, the complaint alleges.

It would also be nearly impossible to accurately track this time, given the fast-paced nature of restaurant work, the complaint says.


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