NFIB Weekly News

NEW ORLEANS, La. (May 17, 2022) – NFIB filed an amicus brief in the case Restaurant Law Center, et al. v. United States Department of Labor at the United States Court of Appeals for the Fifth Circuit. The case challenges DOL’s 2021 final rule on the Fair Labor Standards Act (FLSA) tip credit provision.

“The current rule from the Department of Labor creates many administrative burdens for small employers with tipped workers,” said Karen Harned, Executive Director of NFIB’s Small Business Legal Center. “The department is exceeding its rulemaking authority on this issue and ultimately creating onerous and unworkable regulations for small business owners.”

NFIB’s amicus brief argues that the rule, which attempts to limit when employers can use the sub-minimum wage, or tip credit, conflicts with the FLSA and makes compliance nearly impossible for small business owners. The rule offers conflicting guidance on how employers should categorize tip-producing work and imposes significant time-keeping issues. NFIB asks the Fifth Circuit to reverse the district court’s decision and remand to the district court with instructions to enter a preliminary injunction enjoining the Department from enforcing the final rule pending final judgment in the case.

NFIB filed the amicus brief with the National Retail Federation, American Hotel and Lodging Association, and American Gaming Association.