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 “Biz Groups Say EPA Decision Helps Their Tip Rule Challenge,” by Irene Spezzamonte. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Supreme Court's decision on the Environmental Protection Agency's ability to regulate greenhouse gas emissions highlights that a Department of Labor rule regulating tipped and nontipped pay is illegal, two restaurant groups told a Texas federal court Monday.

In an unopposed motion to file a notice of supplemental authority, the Restaurant Law Center and the Texas Restaurant Association told a Texas district court that the West Virginia et al. v. EPA et al. decision showed the DOL didn't have the authority to issue a rule splitting what tasks are considered tipped or nontipped work. …

Monday's filing comes in support of the groups' April bid for summary judgment. The groups told the court then that the DOL overstepped its authority when it mandated the rule, which went into effect in December 2021. …

The industry groups argued that neither Congress nor the Fair Labor Standards Act — which allows employers to pay tipped workers as low as $2.13 per hour, as long as tips make up the difference between that amount and the federal minimum wage of $7.25 per hour — allowed the DOL to issue the rule.

The Restaurant Law Center and the Texas Restaurant Association already tried to block the rule in December, but the district court denied that request in February and the groups appealed to the Fifth Circuit. …

The groups sued in December, asking the Texas court to prevent the rule from going into effect. Later that month, the groups filed a motion for a nationwide preliminary injunction, leading to the February decision at stake in the Fifth Circuit.

In May, the DOL filed its own bid for summary judgment in the lower court, arguing that the process it followed to issue the rule was not arbitrary or capricious and that the agency acted within its authority.

Paul DeCamp of Epstein Becker Green, who is representing the groups, reiterated Monday that the DOL went beyond its allowed authority to issue the rule and that the agency is trying "to micromanage on a minute-by-minute basis the work of any tipped employee in the United States earning less than $7.25 per hour in cash wages."

"As the Supreme Court has made perfectly clear, most recently in West Virginia v. EPA, the department's approach is unlawful and a violation of constitutional separation of powers," DeCamp said. 

Industries

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.