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 Urge Judge to Nix DOL Tipped Worker Rule,” by Caleb Drickey. (Read the full version – subscription required.)

Following is an excerpt:

Restaurant industry groups asked a Texas federal judge to put the kibosh on a U.S. Department of Labor rule that mandates higher wages for workers who perform extensive untipped work, saying the rule overcomplicates the definition of tipped employees.

In a motion for summary judgment filed Friday, the Restaurant Law Center and the Texas Restaurant Association called for a block on the DOL rule, arguing the department exceeded its authority to define tipped work and contradicted the language of the Fair Labor Standards Act and the will of Congress.

"The final rule is not the product of reasoned decision-making," the industry groups said. "The final rule is the product of agency legislating, which conflicts with the plain language of the statute and congressional intent to boot."

The rule, which codified a long-standing principle that employers must allow workers to spend at least 80% of their days performing tasks for which they receive tips before reducing base wages below the standard federal $7.25 minimum wage, is predicated on language in the FLSA that defines tipped workers as those "employed in an occupation" that regularly receives tips from customers.

The industry groups argued Friday that the department's rule, which breaks down tasks into tipped and nontipped categories, misses the forest for the trees. The industry groups argued that the FLSA and Congress empowered the DOL only to determine whether workers received regular tips, not to split long-established, clearly defined and tip-creditable occupations into lumps of supposedly disconnected chores. …

Paul DeCamp, counsel for the industry groups, reiterated in a statement his belief that Congress clearly supported the application of tip credits for workers whose responsibilities extend beyond tipped tasks.

"Congress has not changed the standard in the roughly 50 years since they established the $30-a-month threshold," DeCamp said. "Even if [the threshold was] $200 a month, you still wouldn't get to a level of activity that requires constant pursuit of tips." …

The Restaurant Law Center and Texas Restaurant Association are represented by Angelo Illyich Amador in-house and by Kathleen Barrett, Paul DeCamp and Greta Ravitsky of Epstein Becker Green.


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