October 3, 2022

Volume XII, Number 276

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October 03, 2022

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Preliminary Motion Seeking to Invalidate DOL’s Dual Jobs Final Rule Fails

Recently we reported on the efforts of the Restaurant Law Center (RLC), an independent public policy organization affiliated with the National Restaurant Association, to invalidate the Dual Jobs Final Rule published by the Department of Labor (DOL). To that end, in early February the RLC filed a motion for preliminary injunction in federal court in Texas to prevent the Final Rule from being enforced. Unfortunately for employers, on February 22, 2022, the court denied the motion. Thus, at least for the time being, the Dual Jobs Final Rule remains in effect.

The Dual Jobs Final Rule, which became effective in late December 2021, establishes limits on the amount of time tipped employees can spend performing work that is not “tip-producing” and still being paid at the reduced cash wage applicable to tipped employees under the Fair Labor Standards Act (FLSA). The new Final Rule revived the 20% (or “80/20”) Rule, with modifications, and added a “30-Minute” Rule, disallowing the tip credit when a tipped employee spends more than thirty continuous minutes performing work that is not considered tip-producing work. The previous administration had attempted to eliminate the 20% Rule.

In denying the RLC’s motion, the court concluded that the current Final Rule is not significantly different from the sub-regulatory guidance that the DOL had been applying for several decades, prior to the previous administration’s attempt to rescind its longstanding position, and further noted that several federal courts of appeal have upheld the validity of that previous guidance. The court also held that the RLC had failed to produce concrete evidence of the damages employers would suffer as a result of the Final Rule, proof of such damages being a necessary component to a motion for preliminary injunction. The RLC is contemplating whether it will file an appeal of the district court’s order. Such an appeal would be heard by the U.S. Court of Appeals for the Fifth Circuit.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 55
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About this Author

Jeffrey Brecher, Jackson Lewis, Management Arbitration Lawyer, Labor Litigation Attorney
Principal

Jeffrey W. Brecher is a Principal in the Long Island, New York, office of Jackson Lewis, and is Practice Group Leader of the firm's Wage and Hour practice. He has litigated hundreds of cases, defending management at arbitration, before state and federal administrative agencies and at trial.

Mr. Brecher regularly advises clients on compliance with various state and federal laws affecting the workplace, including discrimination and related claims arising under Title VII, Family and Medical Leave Act, Americans with...

631-247-4652
Justin R. Barnes, Jackson Lewis, Federal Employment Lawyer, Discrimination Allegations Attorney
Principal

Justin R. Barnes is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He represents employers in federal and state courts and before administrative agencies on a variety of labor and employment related issues, including collective and class action wage and hour disputes, labor arbitrations, allegations of discrimination, and employment-related contract disputes.

Mr. Barnes’ practice is focused primarily on defending complex wage and hour class and collective actions in state and federal courts across the...

404-586-1809
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