DOL Again Asks to Delay Lawsuit Over Tips Guidance

The U.S. Labor Department again asked a judge to delay a lawsuit challenging its now-abandoned approach to workers who earn tips.

More time is needed “in light of the Thanksgiving holidays and the number of parties involved,” the DOL said in a Nov. 21 request. If granted, it would push the deadline for the DOL to file an answer to a complaint business associations filed in July from Nov. 23 to Nov. 30.

Employers are allowed to count tips from customers toward the minimum wage they’re required to pay under the Fair Labor Standards Act, as long as certain conditions are satisfied. The Labor Department under the Obama administration directed its wage-and-hour enforcement personnel not to count customer tips for employees who spend more than 20 percent of their work time on tasks that don’t generate tips, such as operating a dishwasher.

The National Restaurant Association’s legal arm, the Restaurant Law Center, contends in a lawsuit that the DOL applied the guidance as though it carried the weight of a regulation that had gone through formal rulemaking, even though it was simply guidance the Obama administration added to DOL workers’ Field Operations Handbook that wasn’t entitled to the deference that a regulation receives.

The DOL under the Trump administration walked back the guidance Nov. 8. The next day, the DOL asked for a delay so it could “more fully” prepare its response.

Paul DeCamp, an attorney in the Washington office of Epstein Becker & Green P.C. who represents the Restaurant Law Center and its co-plaintiff, the Texas Restaurant Association, said the case likely would become moot.

The DOL again asked Judge Robert Pitman of the U.S. District Court for the Western District of Texas for a delay so it could continue working with the plaintiffs to resolve the case. Their counsel doesn’t oppose the request, the DOL said.

The case is Restaurant Law Ctr. v. DOL, W.D. Tex., No. 1:18-cv-00567, motion for extension 11/21/18.