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 “Restaurant Groups Take Fight Against Tip Rule to 5th Circ.” by Irene Spezzamonte. (Read the full version – subscription required.)

Following is an excerpt:

A U.S. Department of Labor rule splitting what tasks are considered tipped or nontipped work is illegal and hurts the restaurant industry, two groups told the Fifth Circuit, urging the appellate court to flip a district court's decision to not enjoin the rule.

In their opening brief Monday, the Restaurant Law Center and the Texas Restaurant Association asked the Fifth Circuit to upend the Texas federal court's decision in February denying their bid for a preliminary injunction against the DOL's tipped wage rule that went into effect Dec. 28. The groups said the rule goes against the Fair Labor Standards Act's text and will force restaurants to incur millions of dollars in costs.

"It is an impossible time to add these additional substantial costs and burdens to many of the associations' members as their operations are just barely surviving from COVID-19 pandemic financial losses and have depleted reserves," the groups said. …

The groups said Monday that the DOL used "linguistic legerdemain" to develop a new "tipped occupation" definition that finds no support in the FLSA, arguing that the new rule "provides zero tolerance" for work that is not part of the tipped work.

"The final rule carves all work the department deems 'not part of the tipped occupation' from the tip credit even though there is no dispute that employees falling within the statute's definition of 'tipped employee' ... indisputably perform such duties and activities," the groups said. …

Paul DeCamp of Epstein Becker Green, who is representing the two restaurant groups, said Tuesday that the DOL's rule is "illegal, absurd, and unjust" and that he is confident the appellate court will side with the groups.

"The Department of Labor and its agencies have no authority to rewrite the laws that Congress enacts, denying businesses the rights conferred by statute," DeCamp said. "The Fifth Circuit has not hesitated to require regulators to follow the law, and we anticipate that it will do so here."


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