Case: 23-50562 Document: 31 Page: 1 Date Filed: 11/02/2023
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`NO. 23-50562
`
`In the United States Court of Appeals
`for the Fifth Circuit
`
`
`RESTAURANT LAW CENTER; TEXAS RESTAURANT ASSOCIATION,
`Plaintiffs-Appellants,
`v.
`UNITED STATES DEPARTMENT OF LABOR; JULIE A. SU, ACTING
`SECRETARY OF THE U.S. DEPARTMENT OF LABOR; JESSICA LOOMAN,
`ACTING ADMINISTRATOR OF THE DEPARTMENT OF LABOR’S WAGE
`AND HOUR DIVISION, IN HER OFFICIAL CAPACITY,
`Defendants-Appellees.
`
`
`
`On Appeal from the United States District Court for the Western District of Texas,
`Austin Division, The Honorable Robert Pittman, District Court Judge
`Civil Action No. 1:21-cv-1106-RP
`
`BRIEF OF AMICI CURIAE HOSPITALITY ORGANIZATIONS IN
`SUPPORT OF PLAINTIFFS-APPELLANTS RESTAURANT LAW
`CENTER AND TEXAS RESTAURANT ASSOCIATION
`
`Mark A. Flores
`LITTLER MENDELSON, P.C.
`2001 Ross Avenue, Suite 1500
`Dallas, TX 75201
`
`Paul J. Sopher
`LITTLER MENDELSON, P.C.
`1601 Cherry Street, Suite 1400
`Philadelphia, PA 19102
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`
`
`
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`David B. Jordan
`LITTLER MENDELSON, P.C.
`1301 McKinney Street, Suite 1900
`Houston, Texas 77010
`
`
`
`Of counsel:
`
`
`Daniel B. Boatright
`LITTLER MENDELSON, P.C.
`1201 Walnut Street, Suite 1450
`Kansas City, Missouri 64106
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`ATTORNEYS FOR HOSPITALITY ORGANIZATIONS
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`

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`Case: 23-50562 Document: 31 Page: 2 Date Filed: 11/02/2023
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`NO. 23-50562
`
`In the United States Court of Appeals
`for the Fifth Circuit
`
`
`RESTAURANT LAW CENTER; TEXAS RESTAURANT ASSOCIATION,
`Plaintiffs-Appellants,
`v.
`UNITED STATES DEPARTMENT OF LABOR; JULIE A. SU, ACTING
`SECRETARY OF THE U.S. DEPARTMENT OF LABOR; JESSICA LOOMAN,
`ACTING ADMINISTRATOR OF THE DEPARTMENT OF LABOR’S WAGE
`AND HOUR DIVISION, IN HER OFFICIAL CAPACITY,
`Defendants-Appellees.
`
`
`
`On Appeal from the United States District Court for the Western District of Texas,
`Austin Division, The Honorable Robert Pittman, District Court Judge
`Civil Action No. 1:21-cv-1106-RP
`
`CERTIFICATE OF INTERESTED PERSONS
`
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`The undersigned counsel of record certifies that the following listed persons
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`
`
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`and entities as described in the fourth sentence of 5th Cir. Rule 28.2.1 have an
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`interest in the outcome of the case. These representations are made in order that the
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`judges of this Court may evaluate possible disqualification or recusal.
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`i.
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`

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`Case: 23-50562 Document: 31 Page: 3 Date Filed: 11/02/2023
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`Plaintiffs-Appellants
`
`Counsel for Plaintiffs-Appellants
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`Restaurant Law Center
`Texas Restaurant Association
`
`Paul DeCamp
`Kathleen Barrett
`Angelo Amador
`
`Defendants-Appellants
`
`Counsel for Defendants-Appellants
`
`United States Department of Labor
`Julie A. Su, Acting Secretary of the U.S.
`Department of Labor
`Jessica Looman, acting administrator of
`the Department of Labor’s Wage and
`Hour Division, in her official capacity
`
`Amici Curiae in support of Plaintiffs-
`Appellants
`
`National Retail Federation
`National Federation of Independent
`Business Small Business Legal Center,
`Inc.
`American Hotel and Lodging
`Association
`American Gaming Association
`
`Alisa Beth Klein
`Jennifer Utrecht
`Johnny Hillary Walker III
`
`Counsel for Amici Curiae in support
`of Plaintiffs-Appellants
`
`David B. Jordan
`
`Mark A. Flores
`
`Daniel B. Boatright, of counsel
`
`Paul J. Sopher, of counsel
`
`
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`The National Retail Federation, National Federation of Independent Business
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`Small Business Legal Center, Inc., American Hotel and Lodging Association, and
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`American Gaming Association (collectively, the “Hospitality Organizations”) have
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`ii.
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`

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`Case: 23-50562 Document: 31 Page: 4 Date Filed: 11/02/2023
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`no parent corporations and no publicly held corporation owns 10% or more of the
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`stock of the above-identified Hospitality Organizations.
`
`
`
`
`
`/s/ David B. Jordan
`David B. Jordan
`
`Attorney of Record for the Hospitality
`Organizations
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`iii.
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`

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`Case: 23-50562 Document: 31 Page: 5 Date Filed: 11/02/2023
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`TABLE OF CONTENTS
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`Page(s)
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`CERTIFICATE OF INTERESTED PERSONS ........................................................ i
`TABLE OF CONTENTS ......................................................................................... iv
`TABLE OF AUTHORITIES .................................................................................... v
`STATEMENT OF CONSENT OF THE PARTIES ................................................. x
`I.
`STATEMENT OF THE INTEREST OF THE AMICI CURIAE .................. 1
`II. ARGUMENT .................................................................................................. 3
`A.
`The FLSA ensures employees receive minimum wage, and
`industry data shows tipped employees receive tips that far
`exceed minimum wage. ........................................................................ 3
`Compliance with the Final Rule is practically impossible. .................. 5
`1.
`The 80/20 Rule provides insufficient and conflicting
`guidance on treatment of tasks tipped employees
`perform. ...................................................................................... 6
`The 80/20 Rule imposes untenable recordkeeping
`obligations and compliance costs. ........................................... 12
`The DOL erroneously takes the position idle time is
`“directly supporting” work. ..................................................... 16
`Consideration of a 15-minute portion of a shift further
`highlights the significant compliance issues raised by the 80/20
`Rule. .................................................................................................... 22
`The Final Rule fails to provide guidance for the ever-evolving
`nature of the hospitality industry in a post-pandemic world. ............. 25
`III. CONCLUSION ............................................................................................. 26
`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,
`TYPEFACE REQUIREMENTS, AND TYPE-STYLE
`REQUIREMENTS ....................................................................................... 29
`
`2.
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`3.
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`B.
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`C.
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`D.
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`iv
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`

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`Case: 23-50562 Document: 31 Page: 6 Date Filed: 11/02/2023
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`TABLE OF CONTENTS
`(CONTINUED)
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`Page(s)
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`CERTIFICATE OF SERVICE ............................................................................... 30
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`v.
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`Case: 23-50562 Document: 31 Page: 7 Date Filed: 11/02/2023
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`TABLE OF AUTHORITIES
`(CONTINUED)
`
` Page(s)
`
`
`Cases
`Anderson v. Mt. Clemens Pottery Co.,
`328 U.S. 680 (1946) ............................................................................................ 14
`Brock v. DeWitt,
`633 F. Supp. 892 (W.D. Mo. 1986) .................................................................... 20
`McLaughlin v. Harbor Cruises LLC,
`880 F. Supp. 2d 179 (D. Mass. 2012) ................................................................. 21
`Mireles v. Frio Foods, Inc.,
`899 F.2d 1407 (5th Cir. 1990) ...................................................................... 19, 20
`Pellon v. Bus. Representation Int’l, Inc.,
`528 F. Supp. 2d 1306 (S.D. Fla. 2007) ............................................................... 15
`Sedano v. Mercado,
`No. 92-0052, 1992 WL 454007 (D.N.M. Oct. 8, 1992) ..................................... 20
`Skidmore v. Swift & Co.,
`323 U.S. 134 (1944) ............................................................................................ 19
`Smith v. Superior Casing Crews,
`299 F. Supp. 725 (E.D. La. 1969) ....................................................................... 20
`Townsend v. Mercy Hosp. of Pittsburgh,
`862 F.2d 1009 (3d Cir. 1988) ............................................................................. 19
`Statutes
`29 U.S.C. § 213(b)(6)............................................................................................... 20
`29 U.S.C. § 203(t) .................................................................................................... 12
`Phila. Code § 9-4601, et seq. (Philadelphia Fair Week Work
`Ordinance) ........................................................................................................... 17
`Tip Regulations Under the Fair Labor Standards Act (FLSA) .........................passim
`
`vi
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`Case: 23-50562 Document: 31 Page: 8 Date Filed: 11/02/2023
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`TABLE OF AUTHORITIES
`(CONTINUED)
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` Page(s)
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`Other Authorities
`29 C.F.R. § 531.56(f) ................................................................................................. 6
`29 C.F.R. § 531.56(f)(2)(ii) ................................................................................. 7, 13
`29 C.F.R. § 531.56(f)(3)(ii) ................................................................................. 7, 13
`29 C.F.R. § 531.56(f)(4)(ii) ..................................................................................... 18
`29 C.F.R. § 531.56(f)(5)(ii) ............................................................................. 7, 9, 13
`29 C.F.R. § 778.223(b) ............................................................................................ 20
`29 C.F.R. § 783.31 ................................................................................................... 21
`29 C.F.R. § 783.37 ................................................................................................... 21
`29 C.F.R. § 785.14 ................................................................................................... 19
`86 Fed. Reg. 60114 ........................................................................................ 3, 14, 16
`86 Fed. Reg. 60128 .................................................................................... 8, 9, 10, 13
`2023, S. 2488, 118th .................................................................................................. 4
`America Rescue Plan Act of 2021, H.R. 1319, 117th Cong. (2021) ......................... 5
`ATLANTIC, June 28, 2021,
`https://www.theatlantic.com/health/archive/2021/06/tipping-
`restaurants-pandemic-waiters/619314/ ............................................................... 25
`Bringing an End to Harassment by Enhancing Accountability and
`Rejecting Discrimination in the Workplace Act, H.R. 5994, S.
`3219, 117th Cong. (2021) ..................................................................................... 5
`Employment Policies Institute, The Case for the Tip Credit: From
`Workers, Employers, and Research (February 2021), available at
`https://epionline.org/studies/the-case-for-the-tip-credit/ ...................................... 3
`
`vii
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`

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`Case: 23-50562 Document: 31 Page: 9 Date Filed: 11/02/2023
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`TABLE OF AUTHORITIES
`(CONTINUED)
`
` Page(s)
`
`
`Mary Meisenzahl, Restaurants created a monster by emphasizing to-
`go and online orders during the pandemic, and now they can’t
`control it, BUSINESS INSIDER, Dec. 4, 2021,
`https://www.businessinsider.com/restaurants-cant-handle-the-
`demands-of-to-go-orders-2021-12 ...................................................................... 25
`NFIB, 411 Small Business Facts, available at
`http://www.411sbfacts.com/pollresults_g.php? QID=00000002696 ................. 25
`NFIB, NFIB Small Poll Business Structure (2004), available at
`http://www.411sbfacts.com/pollresults_g.php?QID=00000000661
`&KT_back=1 ...................................................................................................... 25
`O*NET, www.onetonline.org .................................................................................. 12
`Raise the Wage Act of 2023, H.R. 4889, 118th Cong. (2023) .................................. 5
`Raise the Wage Act of 2021, S. 53, 117th Cong. (2021) .......................................... 5
`RESTAURANT BUSINESS (Feb. 14, 2022), available at
`https://www.restaurantbusinessonline.com/workforce/union-group-
`mounts-25m-campaign-against-tip-credit............................................................. 5
`Saahil Desai, The Pandemic Really Did Change How We Tip................................ 25
`Small Business Facts, Restaurants and Bars Staggered by Pandemic,
`U.S. Small Business Administration, Office of Advocacy,
`available at: https://cdn.advocacy.sba.gov/wp-
`content/uploads/2020/06/29105857/Small-Business-Facts-
`Restaurants-And-Bars-Staggered-By-Pandemic.pdf (last accessed
`May 6, 2022) ....................................................................................................... 16
`Staff Writer, Being a Casino Dealer: Dream Job or Nightmare, Feb.
`17, 2014, CASINO.ORG, Feb. 17, 2014),
`https://www.casino.org/blog/being-a-casino-dealer-dream-job-or-
`nightmare/ ..................................................................................................... 18, 19
`Tipped Worker Protection Act, H.R. 5369, 118th Cong. (2023) .............................. 5
`
`viii
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`Case: 23-50562 Document: 31 Page: 10 Date Filed: 11/02/2023
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`TABLE OF AUTHORITIES
`(CONTINUED)
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`Tipped Worker Protection Act, H.R. 8427, 117th Cong. (2022) .............................. 5
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` Page(s)
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`ix
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`

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`Case: 23-50562 Document: 31 Page: 11 Date Filed: 11/02/2023
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`
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`STATEMENT OF CONSENT OF THE PARTIES
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`On October 26, 2023, counsel for Defendants-Appellees and Plaintiffs-
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`Appellants, respectively, advised counsel for Hospitality Organizations that they
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`would consent to the filing.
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`x
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`

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`Case: 23-50562 Document: 31 Page: 12 Date Filed: 11/02/2023
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`
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`I.
`STATEMENT OF THE INTEREST OF THE AMICI CURIAE
`
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`The National Retail Federation (NRF) is the world’s largest retail trade
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`association and the voice of retail worldwide. NRF’s membership includes retailers
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`and restaurants of all sizes, formats and channels of distribution. NRF has filed briefs
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`in support of the retail and restaurant community on dozens of topics.
`
`The National Federation of Independent Business Small Business Legal
`
`Center, Inc. (“NFIB Legal Center”) is a nonprofit, public interest law firm
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`established to provide legal resources and be the voice for small businesses in the
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`Nation’s courts through representation on issues of public interest affecting small
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`businesses. It is an affiliate of the National Federation of Independent Business, Inc.
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`(“NFIB”), which is the Nation’s leading small business association. NFIB’s mission
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`is to promote and protect the right of its members to own, operate, and grow their
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`businesses. To fulfill its role as the voice for small business, NFIB Legal Center
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`frequently files amicus curiae briefs in cases that will impact small businesses.
`
`The American Hotel and Lodging Association (“AHLA”) represents more
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`than 30,000 members across the country including the 10 largest hotel companies in
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`the United States. This includes 80% of all franchise hotels and nearly 3,800,000
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`total rooms. The AHLA has represented the hotel and lodging industry for more
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`than 100 years and advocates for policies not only applicable to major global brands
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`but also small inns and bed and breakfasts.
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`1
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`

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`Case: 23-50562 Document: 31 Page: 13 Date Filed: 11/02/2023
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`The American Gaming Association (“AGA”) represents the gaming industry
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`to promote and advocate for modern gaming operations. The AGA supports the
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`policy priorities of its members on a number of federal, state, and tribal regulatory
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`and legislative issues. The membership of the AGA includes commercial and tribal
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`casino operators, domestic gaming suppliers and other stakeholders in the gaming
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`industry.
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`Members of the above identified organizations (“Hospitality Organizations”)
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`have insurmountable burdens to comply with the 80/20 Rule in its current form,
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`which does not provide their members critical clarity on how compliance could be
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`achieved. The Hospitality Organizations seek to inform this Court of these
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`compliance challenges and the negative impact these challenges have and will
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`continue to have on their members’ businesses.
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`2
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`

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`Case: 23-50562 Document: 31 Page: 14 Date Filed: 11/02/2023
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`
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`II.
`ARGUMENT
`
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`A. The FLSA ensures employees receive minimum wage, and industry data
`shows tipped employees receive tips that far exceed minimum wage.
`Congress’s sole charge under the FLSA is that tipped employees make
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`sufficient tips from their work to ensure they receive at least the general minimum
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`wage—$7.25 per hour. The Department of Labor’s (“DOL”) October 2021 Final
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`Rule, however, seeks to usurp Congressional authority and relegate the tip credit to
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`the margins of the hospitality industry under the guise of protecting tipped
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`employees from “abuse” of the tip credit. Tip Regulations Under the Fair Labor
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`Standards Act (FLSA); Partial Withdrawal (“Final Rule” or “80/20 Rule”), 86 Fed.
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`Reg. 60114, 60134 (providing limits on non-tipped supporting work “are important
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`to protect both protect [sic] vulnerable tipped employees and well-meaning
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`employers from unscrupulous employers that might abuse the tip credit”). The
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`DOL’s stand-in-the-shoes-of-Congress solution exceeds its rulemaking authority,
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`creates a panoply of unintended consequences, and deprives the hospitality industry
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`of decades of reliance upon a pay practice that makes tipped workers among the
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`highest paid in the hospitality sector.
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`Tipped workers earn an average hourly wage ($14.32), which is nearly double
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`the current federal minimum wage ($7.25). Employment Policies Institute, The Case
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`for the Tip Credit: From Workers, Employers, and Research, 3 (February 2021),
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`3
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`

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`Case: 23-50562 Document: 31 Page: 15 Date Filed: 11/02/2023
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`
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`available at https://epionline.org/studies/the-case-for-the-tip-credit/. Among hourly
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`employees in restaurants, bars, hotels, and casinos, tipped employees typically enjoy
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`the highest level of income. Recent wage data gathered from members of the
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`Hospitality Organizations confirm their employees in states where the tip credit is
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`permitted have average total earnings that far exceed their non-tipped coworkers.
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`Servers and bartenders employed by restaurant members of the Hospitality
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`Organizations make on average over $25 per hour compared to less than $15 per
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`hour for non-tipped coworkers. For casino employees, the average total earnings for
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`tipped employees is in excess of $25 per hour compared to an average of $15-$18
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`per hour for non-tipped employees. Thus, tipped employees receive pay exceeding
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`that of their non-tipped coworkers and the minimum wage.1
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`With the misguided aim of protecting a population of employees from “abuse”
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`of the tip credit, the DOL has imposed its own politicized view of what specific
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`duties certain occupations should include and dictate how and when employees in
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`those occupations may perform those duties. Indeed, the DOL’s final rule is its best
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`attempt to do what Congress has not been willing to do: eliminate the tip credit
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`altogether. See e.g., Raise the Wage Act of 2023, S. 2488, 118th Cong. § 3 (2023)
`
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`1 This does not include tips unreported to employers by tipped employees, a decades-
`old common practice that has allowed tipped workers to underestimate earnings and
`maximize take-home pay despite employers’ efforts to require tipped employees
`report all tips.
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`4
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`Case: 23-50562 Document: 31 Page: 16 Date Filed: 11/02/2023
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`(attempting to phase out separate minimum wage for tipped employees under
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`FLSA); Raise the Wage Act of 2021, S. 53, 117th Cong. § 3 (2021) (same); Bringing
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`an End to Harassment by Enhancing Accountability and Rejecting Discrimination
`
`in the Workplace Act, H.R. 5994, S. 3219, 117th Cong. § 121 (2021) (same);
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`America Rescue Plan Act of 2021, H.R. 1319, 117th Cong. §2101 (2021) (same);
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`Raise the Wage Act of 2023, H.R. 4889, 118th Cong. § 3 (2023) (same); see also
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`Tipped Worker Protection Act, H.R. 5369, 118th Cong. § 2 (2023), H.R. 8427, 117th
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`Cong. § 2 (2022) (attempting to repeal separate minimum wage for tipped
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`employee). And hospitality-related labor unions have made no secret about their
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`efforts to eliminate the tip credit. See P. Romeo, Union group mounts $25M
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`campaign against the tip credit, RESTAURANT BUSINESS (Feb. 14, 2022), available at
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`https://www.restaurantbusinessonline.com/workforce/union-group-mounts-25m-
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`campaign-against-tip-credit (explaining how labor group conducted a $25 million
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`campaign to end the separate minimum wage for tipped employees). Given this
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`backdrop, the DOL exceeds its rulemaking authority while advancing an onerous, if
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`not impossible, regulatory regime.
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`B. Compliance with the Final Rule is practically impossible.
`The Final Rule mandating that businesses comply with a set of regulatory
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`requirements is painfully ill-suited to the realities of the industries. The DOL’s
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`“regulatory squeeze” will cause significant litigation and compliance costs, as the
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`5
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`Case: 23-50562 Document: 31 Page: 17 Date Filed: 11/02/2023
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`
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`Final Rule is vague and ambiguous, making compliance practically impossible. To
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`approach compliance, businesses will have to adopt (or invent) impractical and
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`burdensome employee-monitoring systems causing enormous costs to both
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`employers and employees. Moreover, the Final Rule treats employee “idle time” in
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`a manner completely inconsistent with that of other FLSA provisions.
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`1.
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`The 80/20 Rule provides insufficient and conflicting guidance on
`treatment of tasks tipped employees perform.
`The Final Rule requires employers to sort tipped employees’ duties into 1 of
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`3 bureaucrat-created categories: (1) tip-producing work, (2) work that directly
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`supports tip-producing work, and (3) unrelated work (i.e., work that is neither tip-
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`producing nor directly supportive of tip-producing work). 29 C.F.R. § 531.56(f).
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`To determine what time an employee must be paid at tip-credit rate versus the
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`general minimum wage, an employer must divine regulatory intent (from an
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`officious rubric drawn by administrative staffers) to determine which tasks fall into
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`which bucket. The DOL attempts to answer this question by creating its own “job
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`descriptions” for 3-4 roles in hospitality, but without any regard to the remarkable
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`variety and individual characteristics of the millions of hospitality providers across
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`the country today.2 Moreover, the Final Rule provides employers conflicting
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`2 The DOL has made much mention that the Field Operations Handbook (“FOH”),
`an investigator-facing manual for DOL staff, has long discussed the 80/20 rule, and
`claims the hospitality industry should not be surprised by its existence (despite the
`FOH not even being available to the public, beyond a FOIA request, well into the
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`6
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`

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`Case: 23-50562 Document: 31 Page: 18 Date Filed: 11/02/2023
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`
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`guidance on how to categorize the myriad of tasks tipped employees perform.
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`If the hospitality industry could even distill the thousands of varieties of tasks
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`performed in the millions of hospitality organizations across the country into the
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`DOL’s 3-4 roles, the Final Rule inconsistently provides that some tasks are tip-
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`producing for some employees but directly supporting for others. If a busser clears
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`a table and replaces table linens, that is considered tip-producing work. 29 C.F.R. §
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`531.56(f)(2)(ii). But if a server clears a table to prepare for the next guest, that is
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`directly supporting work. Id. § 531.56(f)(3)(ii). This begs the question: in which
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`category do these tasks fall if performed by a food runner? What if the employer
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`utilizes no bussers, and servers clear the tables? Likewise, if a housekeeper cleans
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`a hotel room, it is tip-producing work. Id. § 531.56(f)(2)(ii).3 But if a server checks
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`a restroom to ensure it is tidy, it is unrelated work. Id. § 531.56(f)(5)(ii).
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`The regulations also characterize nearly identical duties as either tip-
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`producing or directly supporting depending on whether they are performed for
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`customers generally or in response to a specific customer request. For example, the
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`mid- to late-2000’s). But curiously, the DOL is silent about its removal in the last
`few years of another longstanding key provision in its FOH at § 30d4(i), which
`directed investigators to look to local custom and practice and the type of
`establishment to resolve key tip-related issues, including whether an employee is
`deemed a “tipped employee” under the FLSA. By dropping these “local custom”
`directions, the DOL seeks to reclaim the ability to decide for itself what is, and what
`is not, tipped work and thereby who counts as a “tipped employee.”
`3 If a housekeeper cleans or sets up a hotel meeting room for guest use, it is unrelated
`work. 29 C.F.R. § 531.56(f)(5)(ii).
`
`7
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`Case: 23-50562 Document: 31 Page: 19 Date Filed: 11/02/2023
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`
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`DOL posits “a bartender who retrieves a particular beer from the storeroom at the
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`request of a customer sitting at the bar, is performing tip-producing work,” but “a
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`bartender who retrieves a case of beer from the storeroom to stock the bar in
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`preparation for serving customers, would be performing directly supporting work.”
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`Final Rule, 86 Fed. Reg. at 60128. In the abstract, one could perhaps draw a
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`conceptual distinction between these tasks; however, the distinction collapses when
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`considering the realities of the service environment. In response to a customer
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`request for a particular beer that is not in stock at the bar, it is unlikely a bartender
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`would ever go to the storeroom to retrieve only one bottle of beer. Rather, the
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`bartender would go to the storeroom, retrieve a case of that type of beer, then restock
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`the bar with more of that beer.4 Has the bartender performed tip-producing work or
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`directly supporting work in that instance?
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`The Preamble notes “[t]he determination [of whether work is tip-producing or
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`directly supporting] is [based on] whether the tipped employee can receive tips
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`because they are performing that task for a customer.” Id. That explanation is
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`unhelpful, as tasks service employees perform throughout their shifts are often
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`simultaneously aimed at meeting the specific needs of customers they are serving
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`and the anticipated needs of other customers whom they may be serving in the
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`4 The bartender may also, for efficiency’s sake, retrieve on that same trip cherries
`for cocktail garnishes, bar napkins, etc.
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`Case: 23-50562 Document: 31 Page: 20 Date Filed: 11/02/2023
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`future. Thus, categorizing work as either tip-producing or directly supporting
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`predicated on whether the work is performed in reaction to a specific customer
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`request is conceptually impossible.
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`Other examples of ambiguity abound. For instance, a server who cuts a lemon
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`wedge on the fly to respond to a customer’s request is engaged in tip-producing
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`work. Final Rule, 86 Fed. Reg. at 60128. But what if the server takes a bit of
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`additional time to slice an entire lemon for later use, anticipating other tables in her
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`section will order tea? What about a bartender who prepares a batch of margarita
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`mix when a group, whom he knows from experience are margarita drinkers, come
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`to the bar, but the group ends up ordering beer instead, and the margarita mix is used
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`to make drinks for other customers that night? In which category does the margarita
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`mix-making fall? Does the same work warrant different categorization simply
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`because of the immediacy of the need?
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`
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`The DOL’s position on food preparation by tipped employees likewise leaves
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`employers guessing how to categorize commonly performed tasks. The Preamble
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`and Final Rule state a tipped employee cannot perform any food preparation,
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`including making salads. See 29 C.F.R. § 531.56(f)(5)(ii) (“Preparing food,
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`including salads, . . . is not part of the tipped occupation of a server.”); 86 Fed. Reg.
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`60128 (“The Department’s longstanding position . . . continues to be that general
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`food preparation, including salad assembly, is not part of the tipped occupation of a
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`Case: 23-50562 Document: 31 Page: 21 Date Filed: 11/02/2023
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`server.”) (citation omitted). However, the DOL continues that “a server’s tip-
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`producing table service may include some work performed in the kitchen,” and goes
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`on to list the following food-related activities as tip-producing (and not merely
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`“directly supporting”): adding dressing to pre-made salad; adding a garnish to the
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`plate; toasting bread to accompany prepared eggs; ladling pre-made soup; scooping
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`ice cream onto pre-made dessert; assembling bread and chip baskets; and placing
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`coffee in a pot for brewing. Id.
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`If a server in a diner toasts bread not to accompany eggs, but to fulfill an order
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`for just toast, is he engaged in tip-producing work? What if the server adds ice
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`cream, chocolate sauce, whipped cream, and sprinkles to a pre-made brownie?
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`Minute and seemingly immaterial variations on the DOL’s examples demonstrate
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`the impossibility of principled categorization of the tasks tipped employees perform.
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`Salad preparation is particularly illustrative. What if, in addition to salad
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`dressing, a server adds croutons and a hard-boiled egg to a pre-made salad? What if
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`he then adds precooked chicken? At what point does the addition of an ingredient
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`cross the line into “food preparation” such that the task must be paid at a different
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`rate? These and other questions about minutiae of duties tipped employees perform
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`that the Final Rule raises but fails to answer will be the subject of costly litigation.
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`Proper categorization of countless other tasks performed by restaurant
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`workers are ambiguous under the Final Rule, including common ones such as:
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`Case: 23-50562 Document: 31 Page: 22 Date Filed: 11/02/2023
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` Helping deliver food/drink or otherwise attending to customer
`needs, such as a spill, at a table in a coworker’s section;
` Singing “Happy Birthday” to customers seated in a coworker’s
`section;
` Resolving customer complaints;
` Restocking condiments or rolling silverware while keeping a
`watchful eye on customers.
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`Employers in other industries with tipped employees also customarily carry
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`out a variety of tasks that do not neatly fit into one of the three categories, such as:
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` A delivery driver sorting and loading delivery items in the
`vehicle;
` Time lost by a delivery driver while in route to a delivery due to
`vehicle breakdown or heavy traffic;
` A delivery driver waiting for a customer to answer a door;
` Refueling a delivery vehicle enroute to a delivery;
` Checking with the home office for delivery instructions;
` Scheduling spa customer appointments;
` Processing spa treatment and billing transaction records;
` Restocking towels and supplies in a spa room;
` A parking valet touching up the interior or exterior of a vehicle
`and inspecting for damage, or patrolling a parking area to prevent
`theft;
` A housekeeper tidying the hallway outside a guest room he is
`cleaning;
` A hotel bell captain arranging for shipment of forgotten items.
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`The Final Rule forces hospitality employers to dissect and itemize tipped
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`employees’ duties, predict the classification of each, and quantify how much each
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`employee devoted to each classification across every shift. The Rule thus not only
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`demonstrates a misconception of how work is performed in a service environment,
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`but it also fundamentally betrays the definition of “tipped employee” under the
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`Case: 23-50562 Document: 31 Page: 23 Date Filed: 11/02/2023
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`statute. That definition – “any employee engaged in an occupation in which he
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`customarily and regularly receives more than $30 a month in tips” (29 U.S.C.
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`§ 203(t)) – is in concert with the reality in hospitality that tipped employees perform
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`a broad range of duties in furtherance of providing a positive service experience for
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`guests. Cf. O*NET, www.onetonline.org (listing upwards of 61 work activities and
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`tasks regularly performed by the job category “Waiters and Waitresses”). Those
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`duties are unique to the business and service environments in which they are
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`performed. Rather than allowing employees the latitude to perform the panoply of
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`duties needed to enhance guests’ overall service experience, the Final Rule demands
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`imposition of ar