Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Reuters, in “U.S. Labor Dept Asks Supreme Court to Vacate Tip-Pooling Decision,” by Robert Iafolla.

Following is an excerpt:

The U.S. Labor Department has asked the U.S. Supreme Court to vacate a federal appeals court decision upholding an Obama-era rule that restricted tip pooling, saying the U.S. Congress invalidated the rule with a recent amendment to federal wage law.

The Labor Department responded on Tuesday to a petition for certiorari challenging the now-defunct tip-pooling rule filed by the National Restaurant Association (NRA) and several regional restaurant groups in January 2017. The department’s response brief, originally due in February 2017, came after the high court granted nine government requests to push back its filing deadline.

The Labor Department said in its brief that the 9th U.S. Circuit Court of Appeals was wrong to uphold the 2011 rule, which prohibited employers to pool the tips of servers and other “front of the house” workers making at least the full minimum wage and distribute them to dishwashers and other “back of the house” workers.

But rather than grant review of the 9th Circuit ruling, the department said it would be more appropriate for the high court to vacate it in light of the March amendment to the Fair Labor Standards Act that said the 2011 rule no longer has any force and employers can pool tips but not keep them or give them to managers.

The department said the court should vacate the judgment to eliminate the 9th Circuit’s incorrect decision and its conflict with the 10th Circuit’s 2017 ruling in Marlow v. New Food Guy, which struck down the 2011 rule.

“It’s never too late for the government to do the right thing,” said Paul DeCamp of Epstein Becker & Green, who is representing the NRA in the case. “We’re very grateful that the department has taken the position that it’s taken and essentially admitted that our position is correct.”



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