NFIB Urges Fifth Circuit to Simplify DOL Tip Credit Rule in Amicus Brief

May 17, 2022 Last Edit: June 5, 2025

Restaurant Law Center v. Department of Labor concerns FLSA tip credit provision

NFIB Urges Fifth Circuit to Simplify DOL Tip Credit Rule in Amicus Brief

NFIB filed an amicus brief in the case Restaurant Law Center and Texas Restaurant Association v. United States Department of Labor at the United States Court of Appeals for the Fifth Circuit in New Orleans. 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. The NFIB Small Business Legal Center protects the rights of small business owners in the nation’s courts. NFIB is currently active in more than 40 cases in federal and state courts across the country and in the U.S. Supreme Court.

Topics:

Regulations

State:

Texas

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