Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360, in “Restaurateurs Say DOL Drew Tipped Work 'Line' Unfairly,” by Catherine Marfin. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Department of Labor and two restaurant groups told the Fifth Circuit on Monday that they agreed the department's rule regulating what's tipped and nontipped work "is fundamentally a line-drawing problem," but disagreed on whether that "line" had been drawn appropriately under federal statutes. …

But Paul DeCamp of Epstein Becker & Green PC, counsel for the restaurant groups, said the DOL had gone too far in the rule — largely seen as a codification of the long-standing 80-20 principle — by sorting jobs into two categories, tipped work and nontipped work.

"The functional test is really just a euphemism for a different test from what the statute says, focusing on not the occupation, but on the time spent pursuing tips," DeCamp said. "It's simply the wrong test. It's the wrong standard, and it's not true to the statute."

A more appropriate analysis, he argued, would be considering whether the work being performed is within the normal scope of a person's job duties.

"You're on the schedule as a server, you're on the schedule as a table games dealer, you're a bellman, whatever your job may be — are you doing the tasks that are normal for that occupation or are you not?" DeCamp said. "If you are stuck in the kitchen for two hours, for four hours [and] ... you're not responsible for customers during that time period, well then you're maybe not engaged in the waiter occupation."

The justices asked each side a string of questions throughout the argument, focusing in particular on how an employee's idle time would be paid under the DOL's rule. The DOL conceded that an employee would have to be paid the full minimum wage during their downtime. …

When asked whether the 2021 rule ran contrary to the DOL's 1967 "dual jobs" regulation, which addressed how employers should pay employees who work in two different occupations for the same employer, DeCamp said the regulation was "mostly fine."

"If you picture a Venn diagram [it would have] nonoverlapping duties for those two jobs," DeCamp said. "Versus what the department did here, which is one occupation or one job, there are duties within those jobs that also might be shared by other occupations as well."

Audio from the session:


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