The Oregon Restaurant & Lodging Association owes a debt
of gratitude to our partners at the National Restaurant Association and our
friends at Jackson Lewis law firm for working together to cover all costs for a
petition of the United States Supreme Court in our case, Oregon Restaurant
& Lodging Association v. Perez. If the Supreme Court takes the case,
both parties have also agreed to cover all costs associated with necessary
deliberation of our position. So, fingers crossed that the U.S. Supreme Court
does in fact take the case and grant our petition for rehearing.
If you’re just now getting up to speed, we continue to fight
for the rights of our restaurant members to implement mandatory tip pooling
policies amongst staff working within the line of service as they see fit. We feel
tip pooling amongst staff (not management) to be a right of employers when they
are already meeting the full requirements of minimum wage law for all staff
they employ.
There are seven states in our country (including Oregon)
that do not have a tip credit, meaning all employers in these states are
meeting all minimum wage obligations of all staff regardless of tip income
being received by employees from customers. In a controversial decision on
February 23, 2016 the Ninth Circuit, to the surprise of many, disregarded its
own precedent in a previous case ORLA was involved with in Cumbie v. Woodie
Woo to hold that the United States Department of Labor (DOL) had lawfully
promulgated a rule under Section 203(m) of the Fair Labor Standards Act (FSLA)
that restricts employers from implementing “tip pooling” arrangements that
require employees that are customarily and regularly tipped (such as restaurant
servers) to share such tips with their fellow employees who are not customarily
or regularly tipped (such as kitchen staff).
On September 6, 2016 our case was denied a rehearing which
upheld the February 23 decision. We were however granted a stay of the Ninth
Circuit, meaning the government will not enforce the February 23 decision until
either the Supreme Court denies our petition for certiorari or the Supreme
Court reaches a final resolution on the merits of our case (if it takes the
case).
Our lawsuit, Oregon Restaurant & Lodging Association
v. Perez, is based on our belief that principles established in previous
court cases that established the rights of our members to create tip pools
between front of the house and back of the house staff were intentionally
supplanted by a federal bureaucracy that didn’t like the decision judges made
in our case.
If we look back at where we started on this issue and where
we are to date, it has been quite the journey full of crucial questions that
must be addressed about what separation of powers look like in the United
States of America. Should the U.S. Department of Labor have the right to create
a new rule that applies to employers operating in states that are already
paying the full obligations of minimum wage outside of tip income and tell
those employers how tips can and cannot be dispersed amongst employees within their
private business? Should the U.S. Department of Labor be able to circumnavigate
clear judicial direction given to us in our district court case allowing tip
pooling in our state through a stroke of their rulemaking pen?
We certainly don’t think so. And we hope the U.S. Supreme
Court agrees that a closer look at our case is deserving as they make tough
decisions about what cases to accept with their limited time. Keep your fingers
crossed – it is possible your statewide association in the northwest corner of
the country will have its day in court amongst the most highly regarded court
in the land.
In the meantime, please review your available tip pooling
options here as we await more clarity on tip pooling through the
judicial process. | Jason Brandt, President & CEO
