throbber
Case: 23-50562 Document: 42 Page: 1 Date Filed: 12/27/2023
`
`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, U.S. Department of Labor; JESSICA LOOMAN, Acting
`Administrator of the Department of Labors Wage and Hour Division, in
`her official capacity,
`
`Defendants-Appellees.
`
`On Appeal from the United States District Court
`for the Western District of Texas
`
`BRIEF FOR APPELLEES
`
`Of Counsel:
`SEEMA NANDA
`Solicitor of Labor
`JENNIFER S. BRAND
`Associate Solicitor
`MARIA VAN BUREN
`Counsel for Child Labor and Fair
`Labor Standards Act Special
`Projects
`ERIN M. MOHAN
`JAMES MORLATH
`Senior Attorneys
`U.S. Department of Labor
`
`BRIAN M. BOYNTON
`Principal Deputy Assistant
`Attorney General
`JAMIE ESPARZA
`United States Attorney
`ALISA B. KLEIN
`JENNIFER L. UTRECHT
`Attorneys, Appellate Staff
`Civil Division, Room 7710
`U.S. Department of Justice
`950 Pennsylvania Avenue NW
`Washington, DC 20530
`(202) 353-9039
`
`

`

`Case: 23-50562 Document: 42 Page: 2 Date Filed: 12/27/2023
`
`CERTIFICATE OF INTERESTED PERSONS
`
`A certificate of interested persons is not required, as defendants-
`
`appellees are all governmental parties. 5th Cir. R. 28.2.1
`
`
`
`
`
`
`
`
`

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`Case: 23-50562 Document: 42 Page: 3 Date Filed: 12/27/2023
`
`
`
`STATEMENT REGARDING ORAL ARGUMENT
`
`The district court correctly upheld a 2021 Department of Labor
`
`regulation that implements the tip-credit provision of the Fair Labor
`
`Standards Act. As relevant to this appeal, the 2021 regulation “essentially
`
`codifies” guidance that “had appeared in various Department documents
`
`over the past three and a half decades.” Restaurant Law Ctr. v. U.S. Dep’t
`
`of Labor, 66 F.4th 593, 596 (5th Cir. 2023). The government stands ready
`
`to present oral argument if the Court would find it helpful.
`
`
`
`
`
`
`
`ii
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`

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`Case: 23-50562 Document: 42 Page: 4 Date Filed: 12/27/2023
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION .......................................................................................... 1
`
`STATEMENT OF JURISDICTION ................................................................ 4
`
`STATEMENT OF THE ISSUE ....................................................................... 4
`
`STATEMENT OF THE CASE ........................................................................ 4
`
`I.
`
`The Fair Labor Standards Act’s Tip-Credit Provision .......................... 4
`
`II. Regulations and Guidance Implementing the Tip-Credit
`Provision .............................................................................................. 6
`
`A.
`
`B.
`
`C.
`
`D.
`
`The 1967 Dual Jobs Regulation .................................................. 6
`
`The 1988 “80/20” Guidance ....................................................... 7
`
`The 2018-2020 Rescission of the 80/20 Guidance .................... 9
`
`The 2021 Regulation Reinstating the 80/20 Guidance ............. 11
`
`III. Prior Court Proceedings ..................................................................... 13
`
`A.
`
`B.
`
`Preliminary-Injunction Proceedings ........................................ 13
`
`The District Court’s Summary-Judgment Decision ................. 13
`
`SUMMARY OF ARGUMENT ...................................................................... 16
`
`STANDARD OF REVIEW ........................................................................... 20
`
`ARGUMENT ................................................................................................ 21
`
`I.
`
`The 2021 Regulation Is Not Contrary to the FLSA’s Text .................. 21
`
`A.
`
`The Secretary Reasonably Considers Employees to be
`Engaged in a Tipped Occupation when they Perform Tip-
`
`
`
`iii
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`Case: 23-50562 Document: 42 Page: 5 Date Filed: 12/27/2023
`
`Producing Work or Certain Non-Tipped Duties for
`Limited Periods of Time ........................................................... 21
`
`B.
`
`This Case Does Not Implicate the Major Questions
`Doctrine .................................................................................... 33
`
`II.
`
`The 2021 Regulation Is Not Arbitrary and Capricious ...................... 34
`
`III. Plaintiffs Have Forfeited Any Separate Challenge to the
`Continuous 30-Minute Requirement ................................................ 46
`
`CONCLUSION ............................................................................................. 47
`
`CERTIFICATE OF SERVICE
`
`CERTIFICATE OF COMPLIANCE
`
`ADDENDUM
`
`
`
`iv
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`

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`Case: 23-50562 Document: 42 Page: 6 Date Filed: 12/27/2023
`
`
`
`Cases:
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Alabama Ass’n of Realtors v. Department of Health & Human Servs.,
`141 S. Ct. 2485 (2021)......................................................................... 33, 34
`
`Anderson v. City of New Orleans,
`38 F.4th 472, 481 (5th Cir. 2022) ....................................................... 34, 43
`
`Biden v. Nebraska,
`143 S. Ct. 2355 (2023) .............................................................................. 34
`
`
`Carlson v. Postal Regulatory Comm’n,
`938 F.3d 337 (D.C. Cir. 2019) .................................................................. 39
`
`Christopher M. by Laveta McA v. Corpus Christi Indep. Sch. Dist.,
`933 F.2d 1285, 1293 (5th Cir. 1991) ......................................................... 43
`
`Fast v. Applebee’s Int’l, Inc.,
`638 F.3d 872 (8th Cir. 2011) ............................................... 8, 17, 23, 29-30
`
`
`FCC v. Prometheus Radio Project,
`141 S. Ct. 1150 (2021) ............................................................................... 39
`
`
`Flood v. Carlson Rests. Inc.,
`94 F. Supp.3d 572 (S.D.N.Y. 2015)..................................................... 23, 30
`
`
`Greenlaw v. United States,
`554 U.S. 237 (2008) ................................................................................. 34
`
`
`Home Care Ass’n of Am. v. Weil,
`799 F.3d 1084 (D.C. Cir. 2015), cert. denied, 579 U.S. 927 (2016) ...... 5, 35
`
`
`Huawei Techs. USA, Inc. v. FCC,
`2 F.4th 421 (5th Cir. 2021) ................................................................. 20, 39
`
`
`Long Island Care at Home, Ltd. v. Coke,
`551 U.S. 158 (2007) .............................................................................. 5, 35
`
`
`
`v
`
`

`

`Case: 23-50562 Document: 42 Page: 7 Date Filed: 12/27/2023
`
`
`Lorillard v. Pons,
`434 U.S. 575 (1978) ............................................................................ 19, 30
`
`
`Marsh v. J. Alexander’s LLC,
`905 F.3d 610 (9th Cir. 2018) ............................. 8, 17, 23, 26, 28-29, 29, 33
`
`
`O’Neal v. Denn-Ohio, LLC,
`No. 3:19-cv-280, 2020 WL 210801 (N.D. Ohio Jan. 14, 2020) ............... 38
`
`
`Rafferty v. Denny’s, Inc.,
`13 F.4th 1166 (11th Cir. 2021) ................................... 9, 15, 17, 18, 23, 28, 38
`
`
`Restaurant Law Ctr. v. U.S. Dep’t of Labor,
`66 F.4th 593 (5th Cir. 2023) ........... 1, 2, 3, 12, 13, 16, 23, 25, 41, 43, 44, 46
`
`
`Roberson v. Texas Roadhouse Mgmt. Corp.,
`No. 3:19-cv-628-RGJ, 2020 WL 7265860 (W.D. Ky. Dec. 10, 2020) ...... 10
`
`
`Superior Oil Co. v. FERC,
`563 F.2d 191 (5th Cir. 1977)...................................................................... 39
`
`
`Texas Oil & Gas Ass’n v. U.S. EPA,
`161 F.3d 923 (5th Cir. 1998) ............................................................... 20, 36
`
`
`West Virginia v. EPA,
`142 S. Ct. 2587 (2022) ......................................................... 3, 15, 19, 33, 34
`
`
`W&T Offshore, Inc. v. Bernhardt,
`946 F.3d 227 (5th Cir. 2019) .................................................................... 20
`
`
`
`Statutes:
`
`Consolidated Appropriations Act, 2018,
` Pub. L. No. 115-141, 132 Stat. 348 ........................... 8, 18-19, 29, 30-31, 32
`
`Fair Labor Standards Act of 1938,
` Pub. L. No. 75-718, 52 Stat. 1060 ............................................................... 4
`29 U.S.C. § 203(m) ............................................................................. 1, 16
`
`
`
`vi
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`

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`Case: 23-50562 Document: 42 Page: 8 Date Filed: 12/27/2023
`
`29 U.S.C. § 203(m)(2)(A) .................................................................. 5, 30
`29 U.S.C. § 203(m)(2)(B) ................................................. 8, 19, 29, 31, 32
`29 U.S.C. § 203(t) .......................................................... 1, 5, 16, 21, 24, 33
`29 U.S.C. § 206(a) ................................................................................... 4
`
`
`
`Fair Labor Standards Amendments of 1966,
` Pub. L. No. 89-601, 80 Stat. 830 ..................................................... 3, 5, 16
`
`Fair Labor Standards Amendments of 1974,
` Pub. L. No. 93-259, 88 Stat. 55 ......................................................... 30, 32
`
`28 U.S.C. § 1291 ............................................................................................. 4
`
`28 U.S.C. § 1331 ............................................................................................. 4
`
`
`Legislative Material:
`
`S. Rep. No. 93-690 (1974) ............................................................... 31, 33, 40
`
`
`Regulations:
`
`29 C.F.R. § 516.28 ....................................................................................... 44
`
`29 C.F.R. § 531.56(e) ................................................................................... 10
`
`29 C.F.R. § 531.56(e) (1968) ....................................................... 21, 22, 25, 29
`
`29 C.F.R. § 531.56(f) .................................................................................... 29
`
`29 C.F.R. § 531.56(f)(4) ............................................................................2, 12
`
`29 C.F.R. § 531.56(f)(4)(i) ..................................................................... 12, 24
`
`29 C.F.R. § 531.56(f)(4)(ii) .......................................................................... 24
`
`
`Other Authorities:
`
`
`
`vii
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`Case: 23-50562 Document: 42 Page: 9 Date Filed: 12/27/2023
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`32 Fed. Reg. 13,575 (Sept. 28, 1967) ............................................... 6, 7, 17, 21
`
`85 Fed. Reg. 86,756 (Dec. 30, 2020)........................................................... 10
`
`86 Fed. Reg. 11,632 (Feb. 26, 2021) ............................................................. 11
`
`86 Fed. Reg. 22,597 (Apr. 29, 2021) ............................................................ 11
`
`86 Fed. Reg. 32,818 (June 23, 2021) ............................................................ 11
`
`86 Fed. Reg. 60,114 (Oct. 29, 2021) ........................... 8, 10, 11, 15, 20, 24, 35,
` 36, 37, 38, 39, 40, 40-41, 41, 42, 43, 44,
`45, 46
`
`
`
`
`
`
`
`
`viii
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`

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`Case: 23-50562 Document: 42 Page: 10 Date Filed: 12/27/2023
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`INTRODUCTION
`
`This case was previously before this Court. See Restaurant Law Ctr.
`
`v. U.S. Dep’t of Labor, 66 F.4th 593 (5th Cir. 2023). It arises out of a
`
`challenge to a 2021 regulation issued by the Secretary of Labor. The 2021
`
`regulation implements a provision of the Fair Labor Standards Act (FLSA)
`
`that allows an employer to pay a reduced direct cash wage to a “tipped
`
`employee.” 29 U.S.C. § 203(m). This practice is permitted under the FLSA
`
`only when certain requirements are met, including that the employee be
`
`“engaged in an occupation in which he customarily and regularly receives
`
`more than” a specified amount in tips (currently $30 per month). Id.
`
`§ 203(t) (defining tipped employee).
`
`As relevant to this appeal, the 2021 regulation “essentially codifies the
`
`‘80/20 guidance’ that had appeared in various Department [of Labor]
`
`documents over the past three and a half decades.” Restaurant Law, 66
`
`F.4th at 596. Under the 80/20 guidance and the corresponding 2021
`
`regulation, an employer is allowed to pay a reduced direct cash wage—also
`
`known as taking a “tip credit”—for the time that an employee spends on tip-
`
`producing work and non-tipped duties that directly support tip-producing
`
`work, as long as those non-tipped duties are not performed for a substantial
`
`amount of time. If those non-tipped duties are performed for more than a
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`Case: 23-50562 Document: 42 Page: 11 Date Filed: 12/27/2023
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`substantial amount of time, however, then the employee is considered to be
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`engaged in a different, non-tipped occupation for any time exceeding the
`
`tolerance and the tip credit becomes unavailable for that time. See id.
`
`Like the 80/20 guidance, the 2021 regulation defines a “substantial
`
`amount” of time as more than 20 percent of the employee’s workweek.
`
`Restaurant Law, 66 F.4th at 596 (quoting 29 C.F.R. § 531.56(f)(4)). As this
`
`Court noted in the prior appeal, the 2021 regulation also newly provides
`
`that a worker has performed directly supporting work for a “substantial
`
`amount of time,” when the worker does so for more than 30 consecutive
`
`minutes. Id. In their opening brief in this appeal, however, plaintiffs have
`
`not raised any distinct challenge to that 30-minute limitation. Instead,
`
`plaintiffs broadly contend that the approach taken in the longstanding
`
`80/20 guidance is contrary to the FLSA, because, in plaintiffs’ view, the
`
`FLSA requires the tip credit to be available whenever an employee
`
`“regularly receives at least $30 a month in tips from his or her job,” Br.14,
`
`regardless of whether the employee performed tip-producing work during
`
`the time the employer wishes to pay a reduced direct cash wage. In other
`
`words, plaintiffs believe that the FLSA entitles a restaurant to take a tip
`
`credit for any employee with a particular job title (such as “server”)—paying
`
`that employee a direct cash wage as low as $2.13 an hour—even when the
`
`
`
`2
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`

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`Case: 23-50562 Document: 42 Page: 12 Date Filed: 12/27/2023
`
`employee spends most of their shift performing work that is not tip-
`
`producing, such as cleaning toilets.
`
`The district court properly rejected plaintiffs’ position. The FLSA
`
`provides that an employee is a “tipped employee” for whom an employer
`
`may take a tip credit when the employee is “engaged in” an occupation in
`
`which they regularly receive more than a set amount of tips. And the
`
`challenged rule properly recognizes—consistent with the Department’s
`
`longstanding guidance—that an employee is not “engaged in” a tipped
`
`occupation when she performs non-tipped work that is unrelated to tip-
`
`producing work or performed for a substantial amount of time. That
`
`longstanding approach falls easily within the Department’s express
`
`authority to issue rules, regulations, and orders to implement the tip-credit
`
`provision. See Fair Labor Standards Amendments of 1966, Pub. L. No. 89-
`
`601, § 602, 80 Stat. 830, 844.
`
`Plaintiffs’ reliance on the major questions doctrine is wholly
`
`misplaced. In applying that doctrine, the Supreme Court emphasized that
`
`the agency’s assertion of authority was “unprecedented.” West Virginia v.
`
`EPA, 142 S. Ct. 2587, 2596, 2608, 2612 (2022). Here, by contrast, the 2021
`
`regulation essentially codified the Department’s longstanding 80/20
`
`guidance, see Restaurant Law, 66 F.4th at 596, and the 30-minute
`
`
`
`3
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`

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`Case: 23-50562 Document: 42 Page: 13 Date Filed: 12/27/2023
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`limitation is a reasonable refinement that plaintiffs have not separately
`
`contested on appeal. Furthermore, the economic impact of the 2021
`
`regulation is miniscule in comparison to the economic impact of the
`
`policies that were at issue in the Supreme Court’s major questions doctrine
`
`cases. The judgment of the district court should be affirmed.
`
`STATEMENT OF JURISDICTION
`
`Plaintiffs invoked the district court’s jurisdiction under 28 U.S.C.
`
`§ 1331. ROA.21. The district court entered final judgment on July 6, 2023.
`
`ROA.1357. Plaintiffs filed a timely notice of appeal on August 3, 2023.
`
`ROA.1358-59. This Court has appellate jurisdiction under 28 U.S.C. § 1291.
`
`STATEMENT OF THE ISSUE
`
`
`
`Whether the district court correctly rejected plaintiffs’ challenge to
`
`the 2021 regulation implementing the FLSA’s tip-credit provision.
`
`STATEMENT OF THE CASE
`
`I.
`
`The Fair Labor Standards Act’s Tip-Credit Provision
`
`The FLSA requires a covered employer to pay its employees a
`
`minimum wage. 29 U.S.C. § 206(a). As originally enacted in 1938, the
`
`FLSA exempted certain industries, including the restaurant industry. Fair
`
`Labor Standards Act of 1938, Pub. L. No. 75-718, § 13(a), 52 Stat. 1060,
`
`1067.
`
`
`
`4
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`

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`Case: 23-50562 Document: 42 Page: 14 Date Filed: 12/27/2023
`
`In 1966, Congress extended the FLSA’s protections to restaurant-
`
`industry employees, Pub. L. No. 89-601, § 201, 80 Stat. at 833, and allowed
`
`employers to take a partial credit toward the minimum wage with the tips
`
`received by tipped employees, see id. § 101(a), 80 Stat. at 830 (codified at
`
`29 U.S.C. § 203(m)(2)(A)). The 1966 amendments defined a “tipped
`
`employee” as “any employee engaged in an occupation in which he
`
`customarily and regularly receives more than” a specified amount in tips
`
`(currently $30 per month). Id. § 101(b), 80 Stat. at 830 (codified at 29
`
`U.S.C. § 203(t)).
`
`Congress expressly gave the Secretary of Labor authority to
`
`implement the 1966 amendments through necessary rules, regulations, and
`
`orders. Pub. L. No. 89-601, § 602, 80 Stat. at 844. That provision allows
`
`the Secretary to fill gaps in the FLSA through implementing rules and
`
`regulations. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 165
`
`(2007) (addressing a materially identical provision in the FLSA’s 1974
`
`amendments); see also Home Care Ass’n of Am. v. Weil, 799 F.3d 1084,
`
`1091, 1092 (D.C. Cir. 2015) (same), cert. denied, 579 U.S. 927 (2016).
`
`
`
`5
`
`

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`Case: 23-50562 Document: 42 Page: 15 Date Filed: 12/27/2023
`
`II. Regulations and Guidance Implementing the Tip-
`Credit Provision
`
`A. The 1967 Dual Jobs Regulation
`
`In 1967, the year after Congress authorized the tip credit, the
`
`Secretary of Labor issued a regulation implementing that provision. See 32
`
`Fed. Reg. 13,575 (Sept. 28, 1967). In relevant part, the 1967 regulation
`
`addressed the tip credit’s availability when a person is “employed in a dual
`
`job”—such as “where a maintenance man in a hotel also serves as a waiter.”
`
`Id. at 13,580. The regulation specified that such an employee “is a tipped
`
`employee only with respect to his employment as a waiter” (tip-producing
`
`work) and that “no tip credit can be taken for his hours of employment in
`
`his occupation of maintenance man.” Id. at 13,581.
`
`The regulation distinguished that situation “from that of a waitress
`
`who spends part of her time cleaning and setting tables, toasting bread,
`
`making coffee and occasionally washing dishes or glasses” or “from the
`
`counterman who also prepares his own short orders or who, as part of a
`
`group of countermen, takes a turn as short order cook for the group.” 32
`
`Fed. Reg. at 13,581 (emphases added). The regulation indicated that
`
`“[s]uch related duties in an occupation that is a tipped occupation need not
`
`by themselves be directed toward producing tips.” Id. (emphasis added).
`
`
`
`6
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`

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`Case: 23-50562 Document: 42 Page: 16 Date Filed: 12/27/2023
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`B. The 1988 “80/20” Guidance
`
`Over the next twenty years, the Department of Labor issued opinion
`
`letters addressing questions from employers about the dual jobs
`
`regulation’s application under particular circumstances. See, e.g., ROA.483
`
`(1979 letter informing a restaurant employer that no tip credit was available
`
`for the hours when a waiter performed “salad preparation activities”);
`
`ROA.484; ROA.485-ROA.487. In 1988, the Department issued the 80/20
`
`guidance, which addressed the dual jobs regulation’s proviso that the tip
`
`credit may be taken for duties “related” to tip-producing work that an
`
`employee performs “part of [the] time” or “occasionally.” 32 Fed. Reg. at
`
`13,581.
`
`The 80/20 guidance was included in an updated version of the Field
`
`Operations Handbook of the Department’s Wage and Hour Division
`
`(WHD). See ROA.488 (WHD Field Operations Handbook Rev. 563
`
`§ 30d00(e) (Dec. 9, 1988)). In relevant part, the 1988 Handbook explained
`
`that employers may take the tip credit for non-tipped duties “related to the
`
`tipped occupation,” but that when “tipped employees spend a substantial
`
`amount of time (in excess of 20 percent) performing” such related, non-
`
`tipped duties, “no tip credit may be taken for the time spent in such duties.”
`
`ROA.488 (emphasis added).
`
`
`
`7
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`

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`Case: 23-50562 Document: 42 Page: 17 Date Filed: 12/27/2023
`
`For the next three decades, the 80/20 guidance remained largely
`
`unchanged across administrations, except for a three-month period
`
`between January 16, 2009, and March 2, 2009, in which the Department of
`
`Labor issued—and quickly withdrew—an opinion letter that briefly
`
`rescinded the guidance. See 86 Fed. Reg. 60,114, 60,117 (Oct. 29, 2021)
`
`(describing the history). During that time, the restaurant industry
`
`repeatedly challenged the 80/20 guidance, which courts repeatedly upheld.
`
`See, e.g., Marsh v. J. Alexander’s LLC, 905 F.3d 610, 625 (9th Cir. 2018)
`
`(en banc); Fast v. Applebee’s Int’l, Inc., 638 F.3d 872, 879-81 (8th Cir.
`
`2011).
`
`In March 2018, against the backdrop of the longstanding 80/20
`
`guidance, Congress extended the FLSA’s protections for tipped employees.
`
`The 2018 amendment prohibits an employer from keeping tips received by
`
`its employees for any purposes, and expressly prohibits managers or
`
`supervisors from keeping any portion of employees’ tips, regardless of
`
`whether the employer takes the tip credit. See Consolidated Appropriations
`
`Act, 2018, Pub. L. No. 115-141, § 1201(a)(5), 132 Stat. 348, 1148 (codified at
`
`29 U.S.C. § 203(m)(2)(B)).
`
`
`
`8
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`Case: 23-50562 Document: 42 Page: 18 Date Filed: 12/27/2023
`
`C. The 2018-2020 Rescission of the 80/20 Guidance
`
`In November 2018 and February 2019, the Department of Labor
`
`issued an opinion letter and updated handbook, respectively, that rescinded
`
`the 80/20 guidance. ROA.489-ROA.492, ROA.493-ROA.494. Under the
`
`new guidance, employers could look to the Occupational Information
`
`Network (O*NET)—a database of descriptive occupational information
`
`published by the Department of Labor’s Employment and Training
`
`Administration—to determine which duties were considered “directly
`
`related to the tip-producing duties” of an occupation. ROA.491, ROA.493-
`
`ROA.494. If a duty was listed in that database, the tip credit would be
`
`available for any amount of time employees spent performing that
`
`potentially non-tipped duty, so long as the duty was performed
`
`“contemporaneously with” or “for a reasonable time immediately before or
`
`after” the employee’s duties involving direct service to customers.
`
`ROA.493.
`
`In private litigation brought by employees, courts largely refused to
`
`defer to the guidance in the 2018 opinion letter and 2019 handbook and
`
`instead continued to apply the 80/20 guidance in determining whether an
`
`employer was entitled to take a tip credit for non-tipped duties. See, e.g.,
`
`Rafferty v. Denny’s, Inc., 13 F.4th 1166, 1185-89 (11th Cir. 2021)
`
`
`
`9
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`Case: 23-50562 Document: 42 Page: 19 Date Filed: 12/27/2023
`
`(concluding that the 2018 opinion letter was not a reasonable
`
`interpretation of the 1967 regulation, declining to defer to it, and instead
`
`applying a 20-percent limitation on the hours that a tipped employee may
`
`perform non-tipped tasks); Roberson v. Texas Roadhouse Mgmt. Corp.,
`
`No. 3:19-cv-628-RGJ, 2020 WL 7265860, at *6 (W.D. Ky. Dec. 10, 2020)
`
`(joining “the majority of other district courts in refusing to grant deference”
`
`to the 2018 opinion letter or 2019 handbook); see also 86 Fed. Reg. at
`
`60,118 n.3 (citing to multiple other district court decisions declining to
`
`defer to the 2018 guidance).
`
`Meanwhile, the Department finalized a regulation in late 2020 that
`
`largely codified its recission of the 80/20 guidance. 85 Fed. Reg. 86,756
`
`(Dec. 30, 2020). If it had taken effect, the 2020 final rule would have
`
`amended 29 C.F.R. § 531.56(e) to provide that
`
`an employer may take a tip credit for all non-tipped duties an
`employee performs that meet two requirements. First, the
`duties must be related to the employee’s tipped occupation;
`second, the employee must perform the related duties
`contemporaneously with the tip-producing activities or within a
`reasonable time immediately before or after the tipped
`activities.
`
`85 Fed. Reg. at 86,767. The final rule stated that a non-tipped duty would
`
`be presumed to be related to a tipped occupation if it was listed as a task of
`
`that occupation in the O*NET database. Id.
`
`
`
`10
`
`

`

`Case: 23-50562 Document: 42 Page: 20 Date Filed: 12/27/2023
`
`D. The 2021 Regulation Reinstating the 80/20
`Guidance
`
`The 2020 dual jobs regulation never took effect. After the change of
`
`administration, the Secretary of Labor postponed that rule’s effective date
`
`from March 1, 2021 until December 31, 2021. 86 Fed. Reg. 11,632 (Feb. 26,
`
`2021) (extending the effective date to April 30, 2021); 86 Fed. Reg. 22,597
`
`(Apr. 29, 2021) (extending the effective date for the dual jobs part of the
`
`rule to December 31, 2021).
`
`During that period, the Secretary of Labor issued a notice of proposed
`
`rulemaking to withdraw the dual jobs provision of the 2020 regulation and
`
`reaffirm limits on non-tipped work, by largely codifying the 80/20
`
`guidance with certain refinements that clarified what types of work would
`
`and would not count toward the limitation on non-tipped work. See 86
`
`Fed. Reg. 32,818 (June 23, 2021) (proposed rule). The Department made
`
`significant adjustments to the proposed rule in response to comments from
`
`the restaurant industry and others and issued a final rule on October 29,
`
`2021. 86 Fed. Reg. 60,114 (Oct. 29, 2021).
`
`The 2021 regulation is at issue in this case. That regulation rejects
`
`the approach to the tip credit embodied in the 2020 regulation that never
`
`went into effect, and instead, “essentially codifies the ‘80/20 guidance’ that
`
`had appeared in various Department documents over the past three and a
`
`
`
`11
`
`

`

`Case: 23-50562 Document: 42 Page: 21 Date Filed: 12/27/2023
`
`half decades.” Restaurant Law Ctr. v. U.S. Dep’t of Labor, 66 F.4th 593,
`
`596 (5th Cir. 2023). The 2021 regulation “permits an employer to take a tip
`
`credit, not only for an employee's tip-producing work, but also for other
`
`work that ‘directly supports tip-producing work, provided that the
`
`employee does not perform that work for a substantial amount of time.’”
`
`Id. (quoting 29 C.F.R. § 531.56(f)(4)). And it provides that a “substantial
`
`amount of time” exists when:
`
`(i) The directly supporting work exceeds a 20 percent workweek
`tolerance, which is calculated by determining 20 percent of the hours
`in the workweek for which the employer has taken a tip credit. The
`employer cannot take a tip credit for any time spent on directly
`supporting work that exceeds the 20 percent tolerance. Time for
`which an employer does not take a tip credit is excluded in calculating
`the 20 percent tolerance[.]
`
`Id. (quoting 29 C.F.R. § 531.56(f)(4)(i)).
`
`As this Court noted in the prior appeal, the 2021 regulation also
`
`newly provides that a worker has also performed directly supporting work
`
`for a “substantial amount of time,” and thus, that the tip credit may not be
`
`taken when:
`
`(ii) For any continuous period of time, the directly supporting work
`exceeds 30 minutes. If a tipped employee performs directly
`supporting work for a continuous period of time that exceeds 30
`minutes, the employer cannot take a tip credit for any time that
`exceeds 30 minutes. Time in excess of the 30 minutes, for which an
`employer may not take a tip credit, is excluded in calculating the 20
`percent tolerance in paragraph (f)(4)(i) of this section.
`
`
`
`
`12
`
`

`

`Case: 23-50562 Document: 42 Page: 22 Date Filed: 12/27/2023
`
`Id. (quoting 29 C.F.R. § 531.56(f)(4)(ii)). As discussed in the Argument
`
`section below, however, plaintiffs do not press on this appeal any distinct
`
`challenge to this continuous 30-minute limitation. Instead, plaintiffs
`
`broadly argue that the part of the 2021 regulation that codifies the 80/20
`
`guidance is contrary to the statute and otherwise invalid; they contend that
`
`the continuous 30-minute limitation fails for essentially the same reasons.
`
`III. Prior Court Proceedings
`
`A. Preliminary-Injunction Proceedings
`
`Plaintiffs are trade associations that represent restaurant owners. On
`
`December 3, 2021, they moved for a preliminary injunction, which the
`
`district court denied on the ground that plaintiffs failed to show that
`
`complying with the 2021 regulation would cause irreparable harm to
`
`plaintiffs’ members. This Court reversed and remanded for the district
`
`court to consider the remaining preliminary-injunction factors. See
`
`Restaurant Law, 66 F.4th at 600. This Court reasoned that the
`
`irreparable-harm requirement was met because Plaintiffs met their burden
`
`of showing that compliance with the rule would result in more than de
`
`minimis costs to employers. See id. at 597-600.
`
`B. The District Court’s Summary-Judgment Decision
`
`District court proceedings continued while the preliminary-injunction
`
`order was on appeal, and the summary-judgment briefing had closed by the
`13
`
`
`
`

`

`Case: 23-50562 Document: 42 Page: 23 Date Filed: 12/27/2023
`
`time of this Court’s decision. Accordingly, with the consent of the parties,
`
`the district court issued a single decision that resolved both the cross-
`
`motions for summary judgment and the preliminary-injunction motion.
`
`See ROA.1333 (noting the parties’ consent). The district court entered
`
`summary judgment for the government and denied plaintiffs’ motions for
`
`summary judgment and a preliminary injunction. ROA.1329-ROA.1356.
`
`The district court explained that the FLSA “specifies that an employee
`
`is not a ‘tipped employee’ for which an employer can take a tip credit unless
`
`the employee is “engaged in” an occupation in which the employee
`
`“customarily and regularly receives tips as part of their income.”
`
`ROA.1340-ROA.1341. The court therefore concluded that the Department’s
`
`regulations reasonably take into account “the specific work that employees
`
`are occupied with and whether that work can be considered part of the
`
`tipped occupation.” ROA.1341. The court rejected plaintiffs’ argument that
`
`the FLSA’s plain text makes the tip credit available based on the title of the
`
`“job as a whole,” regardless of “the relative mix of specific tasks” the
`
`employee performs. ROA.1340.
`
`The district court also rejected plaintiffs’ argument that the question
`
`whether non-tipped duties are “related” to tipped duties (and thus should
`
`be considered part of the tipped occupation) should be resolved by
`
`
`
`14
`
`

`

`Case: 23-50562 Document: 42 Page: 24 Date Filed: 12/27/2023
`
`reference to the O*NET database. ROA.1348. As the court explained, that
`
`database merely describes tasks that “tipped employees are required to do
`
`[for] their employers.” ROA.1348 (quoting 86 Fed. Reg. at 60,127). And if
`
`such duties were automatically considered part of the employees’ tipped
`
`occupation, it would “create[] a risk that unlawful practices will become
`
`entrenched in high-violation industries by setting up a fox-guarding-the-
`
`henhouse situation,” because restaurant owners could render non-tipped
`
`duties “related”—thereby expanding the availability of the tip credit—
`
`simply by “requiring tipped employees to perform untipped duties.”
`
`ROA.1348 (quoting Rafferty, 13 F.4th at 1185).
`
`The district court also rejected plaintiffs’ contention that this case
`
`implicated the major questions doctrine, which applies only in
`
`extraordinary cases in which an agency asserts a “newfound power” to
`
`“substantially restructure” a market. ROA.1353 (quoting West Virginia v.
`
`EPA, 142 S. Ct. 2587, 2610 (2022)). The court explained that here, by
`
`contrast, the 2021 regulation “restores previous guidance on the limitations
`
`of nontipped work, as well as work supporting tipped work,” and that

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