The restaurant industry is taking its cue from the U.S. Chamber of Commerce , which has been a remarkably successful behind-the-scenes lobbyist in the federal court system for years.
The National Restaurant Association has launched a Restaurant Law Center to “protect and advance” the restaurant industry.
In its first action, the Restaurant Law Center has asked the U.S. Supreme Court to overturn a 2016 ruling by the U.S. Court of Appeals for the Ninth Circuit in Oregon Restaurant and Lodging et al v. Perez, et al that prohibits employers from forcing tipped employees to share gratuities with non-tipped staff. The Restaurant Law Center wants to void a 2011 rule by the U.S. Department of Labor that was upheld by the 9th Circuit.
The Oregon decision conflicts with an earlier decision by the U.S. Court of Appeals for the Fourth Circuit and creates a split in the federal circuits that can only be resolved by the nation’s high court.
The Restaurant Law Center says it is now “managing” the Oregon restaurant case.
Federal courts have never acknowledged they are subject to intense and expensive lobbying by business group; They have not promulgated rules to address lobbying, such as requiring transparency or full disclosure in court documents. The impact of lobbying on the federal courts is particularly significant in an era where there is rarely any equivalent group representing workers rights due to the decline of organized labor.
Over the years, the U.S. Chamber Litigation Center of the U.S. Chamber of Commerce has had remarkable success influencing the outcome of federal court decisions that have stripped away worker rights. The Chamber played a role in a federal court decision earlier this year limiting the scope of the Age Discrimination in Employment Act of 1967. The U.S. Court of Appeals for the 11th Circuit ruled that employers can policies that discriminate against older workers in hiring because job applicants are not protected under the Age Discrimination in Employment Act. The Chamber argued that systemic age discrimination in hiring represents sound policy and is reasonable.
In recent months, the Chamber Center’s role has come under scrutiny. However, the Chamber does not admit to “managing” cases; only to filing “friend of the court” briefs in lawsuits of importance to free enterprise.
In a related matter, the Trump Administration has proposed a new DOL rule to supplant the 2011 rule and allow restaurants to set up tip pools where front-of-the-house staff share tips with back-of-the-house staff. If all of the restaurant workers make minimum wage, the restaurant owners could use the tips to make “capital improvements” to their restaurants. To comment on the proposed DOL rule, go to regulations.gov by Feb. 5. The Economic Policy Institute argues that as much as $5.8 billion could be taken by employers each year. The EPI adds the proposed DOL rule would disproportionately hurt women, who comprise the vast majority of tipped workers are women.