Trump Lawyers Flip Position on Tip Case Before Supreme Court

The dust continues to settle on a recently passed law that prohibits employers from keeping workers’ tips.

The Trump administration has now broken its silence before the U.S. Supreme Court on the matter, after eight delays spanning 15 months. The Justice and Labor departments filed a brief May 22 asking the high court to grant the restaurant industry’s petition to invalidate a 2011 regulation that prevented businesses from imposing tip-pooling arrangements on workers.

But rather than review the case by scheduling oral arguments, the government wants the Supreme Court to vacate the case and remand it to a federal appeals court to reconsider its decision to uphold the Obama-era rule. There have been several legal and regulatory developments in recent months that make this the best option, the DOJ and DOL argue.

For starters, the government spending bill, signed into law March 23, includes a policy rider to amend the Fair Labor Standards Act by prohibiting employers—including managers and supervisors—from participating in tip-pooling arrangements. The language also declares that the 2011 rule in question is no longer in effect.

Further, the administration has changed is position from the Obama years, as reflected in the DOL’s December proposed rule to rescind the 2011 rule and allow for more tip-sharing arrangements between front-of-house and back-of-house employees.

“Vacating the judgment of the court of appeals would eliminate the division of authority on the question presented and would deprive the decision below of ongoing effect,” the government attorneys wrote in their brief.