The NRA has taken another step toward fighting The Labor Department's regulation barring tip pools that include kitchen staff. The organization's Restaurant Law Center filed a supplemental brief Wednesday with the U.S. Supreme Court in the National Restaurant Association, et al. v. U.S. Department of Labor, et al. case.
The NRA is making the challenge against the Ninth Circuit Court's 2011 decision citing a June 30 decision by the Tenth Circuit that gave foodservice employers in that court's six states more leeway in their tip-pooling and retention schemes. The case — Marlow v. The New Food Guy — involved a catering company that was allowed to lawfully retain the tips its employee earned as long as it was paying that employee at least minimum wage.
"The Tenth Circuit decision reaffirms our need to get a nationwide standard that also benefits back-of-the-house employees in the Ninth Circuit, Angelo Amador, executive director of Restaurant Law Center," said in an email. "This can only come from a final decision by the Supreme Court."
The NRA's brief states:
"The result of the [Tenth Circuit] court's holding is that ‘[a]n employer that pays its employees a set wage (that is) greater than the minimum wage does not violate the FLSA (the U.S. Fair Labor Standards Act) when it retains tips paid by customers," the writ filed this week states.
"The court observed that 'under the clear text of the FLSA, restrictions on employers' use of tips apply only when the employer uses tips received by the employee as a credit against the employee's minimum wage.' The Tenth Circuit's response to the ruling now before this Court was clear: 'We respectfully disagree.' The Tenth Circuit's ruling underscores the need for this Court to intervene, through either summary reversal or plenary review.”
Amador believes the Department of Labor has overstepped its regulatory authority and is unfairly discriminating against employees who work in the back-of-the-house.
"The law here is clear: employees who earn above minimum wage should be able to share their tips with fellow employees, no matter where they work," Amador said in a press release issued early this year. "The Department of Labor cannot continue to trample on the rights of restaurant workers."
Editor's note: A previous version of this story incorrectly stated that the NRA was contesting the Tenth Circuit's decision. We apologize for the error.