Today, July 15, 2022, Democracy Forward — on behalf of the Restaurant Opportunities Centers (ROC) United, Economic Policy Institute (EPI), National Women’s Law Center, Main Street Alliance and the American Sustainable Business Network — filed an amicus curiae brief in the case of Restaurant Law Center et al v. United States Department of Labor et aI, in the Fifth Circuit Court of Appeals, to protect restaurant workers from wage theft and abusive labor practices. 

In support of the Department of Labor’s  final rule limiting the amount of time tipped employees can spend performing non-tip-producing work while still receiving cash wages as low as $2.13 per hour, the amicus brief urges the Fifth Circuit to affirm a Texas district court’s decision to allow the rule to remain in effect. The rule, finalized in December 2021, is based on agency guidance dating back to the Reagan administration.

“At my old job, the manager would have the closing server stay on to sweep and mop floors, clean the kitchen, and wash any remaining dishes from the end of the night. This usually meant an additional 2 to 3 hours of work per night. He would even make servers clean out the grease trap,” said Matt-Fred Lapka, who worked as a server in Pittsburgh, PA. “That manager later admitted to me that he was instructed by the owner to send the cooks and dishwashers home at close and make servers do the hours of cleaning because he wanted to pay the tipped minimum wage ($2.83/hour) for a couple hours, instead of paying dishwashers and cooks $10 to $15/hour to do the work.”

“The National Restaurant Association keeps seeking ways to avoid paying workers a wage. Their challenge to this rule seeks to allow employers to pay $2.13 an hour regardless of their duties, and does a great disservice to the millions of workers who risked their lives to keep the industry afloat the last two years. This attitude helps explain why the majority of restaurant workers are looking for work outside of the industry,” said Teófilo Reyes, Chief Program Officer at ROC United. “By prioritizing the welfare and livelihood of hardworking restaurant workers and their families, the DOL rule is a crucial step forward. Not only do these side-work protections uphold equitable opportunities in the workplace, but they also help boost our economy and make sure the restaurant industry can hire employees and thrive.”

In December 2021, restaurant industry groups sued in the Western District of Texas to block the Department of Labor’s final rule and reverse these wage protections. The court “considered the briefing, the arguments made at the hearing, the evidence, and the relevant law” and denied the motion to block these protections. The Restaurant Law Center and Texas Restaurant Association appealed to the Fifth Circuit.   

Attorneys General from UT, SC, OK, MT, MS, LA, AR, AL, and TX have sided with special interests in their effort to reverse critical protections for minimum-wage restaurant workers.

“The Department of Labor formalized long-standing guidance to help protect workers from wage theft and abuse. The rule is legal and will help protect millions of minimum wage restaurant workers,” said Jeffrey Dubner, Deputy Legal Director at Democracy Forward. “We urge the court to uphold the Department’s rule.”

“The tipped minimum wage has been frozen in time at $2.13 per hour for over 30 years,” said Ben Zipperer, an economist at the Economic Policy Institute. “It is particularly egregious that employers would pay an outdated subminimum wage for non-tipped work.”

The amicus brief explains that the final rule should be upheld, because the administrative record in the case shows that the Department of Labor acted reasonably to protect workers from wage theft and abusive labor practice.  The Department had an ample record showing the importance of a clear rule for protecting workers and providing guidance to employers, and it even incorporated a number of industry comments into its final rule.

“Low pay typically means high employee turnover. With lower turnover, businesses see reduced hiring and training costs, less product waste,and lower error and accident rates. Businesses benefit from increased productivity, product quality and customer satisfaction. Employees often make the difference between repeat customers and lost customers,” said Chanda Causer, Executive Director of Main Street Alliance. “We stand behind the rights of all workers and fully endorse the amicus brief, filed by Democracy Forward.”

“Women—disproportionately women of color—represent more than two-thirds of tipped workers nationwide. In states that allow employers to pay just $2.13 per hour to tipped employees, women face especially wide gender wage gaps and women tipped workers experience exceptionally high poverty rates,” said Julie Vogtman, Director of Job Quality & Senior Counsel at the National Women’s Law Center. “The Department of Labor’s rule codifies and clarifies a longstanding, commonsense policy that prevents employers from abusing the tipped wage for non-tipped work and ensures that tipped workers are paid what they are owed. The Fifth Circuit must uphold it.” 

Employees that are fairly paid are more likely to perform better, a benefit for those businesses,” said David Levine, President and Co-founder of the American Sustainable Business Network. “Fair and livable wages also enable more people to participate in our economy, a benefit for all. The DOL rule is key to addressing the needs of the modern American workforce and will help mitigate the human and economic impact of abusive labor practices.”