Helping Protect The Viability Of Oregon's Restaurant Industry

2017 is upon us and with it comes another significant legislative session chalk full of debates around the budget, labor laws, and transportation funding. If you haven't made plans on February 28, please set aside the date for our industry. We have an opportunity to connect you with your legislators that day in Salem's Capitol building.

We know there are real issues on the horizon in Salem and we will not be able to be effective without your engagement and commitment to stay educated as priorities emerge. Front and center will be paid family leave legislation and restrictive scheduling laws that create even more pressures on Oregon's small businesses in the wake of new minimum wage laws and paid sick leave. We must be involved in these conversations to protect the viability of Oregon's restaurant industry.

As you may have heard, we have our own proactive priorities we hope will be considered including more balance in compensation between kitchen staff and wait staff as well as a comprehensive transportation package to improve mobility and access to Oregon's restaurant scene. In addition, you probably know we are in the middle of filing appropriate paperwork to the United States Supreme Court to fight for the rights of our members to implement a tip pooling policy between wait staff and kitchen staff here in Oregon.

The 91 people in Oregon's Capitol building over the next six months have their hands full and they'll need our help to make wise and thoughtful decisions that benefit Oregonians. The biggest issue continues to be balancing Oregon's budget and making sure spending is reined in based on resources available. Our state budget continues to grow (over eight percent growth) but spending is growing at a more rapid pace. In order to be effective, Oregon's legislators will first be challenged by the give and take of Oregon's budget balancing process.

We expect the upcoming legislative session to be one of the most challenging in recent memory. The politics at the national level could create a more abrasive environment at the state level. Those dynamics will make your business story and your willingness to show up in Salem more important than ever.

Take us up on our February 28 invitation. Make a difference in 2017 for Oregon's hospitality industry and as always, thank you for making the decision to be in business and employ your fellow Oregonians.

For more information on ORLA's Day at the Capitol, email Greg Astley, director of government affairs at Astley@oregonrla.org. RSVP at OregonRLA.org/CapitolDay. | Jason Brandt, President & CEO, 
Oregon Restaurant & Lodging Association

The Big Wheels Keep on Turning for Oregon Tip Pooling

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