DOL's Authority Over Tipped Wages Faces a Big Test

Labor, Employments and Benefits attorney Timothy Taylor spoke with Law360 about the U.S. Department of Labor's new tipped credit regulation, which ensures that tipped workers are compensated the full minimum wage once they complete a substantial amount of untipped duties. It focuses on a tipped worker's tasks rather than their occupation, which restaurant groups say is an unlawfully excessive use of agency power.  Mr. Taylor discussed the major questions doctrine, which deals with questions of political and economic significance. He compared the tipped credit regulation to the 2000 U.S. Supreme Court decision in FDA v. Brown & Williamson Tobacco Corp, where the Court ruled that Congress prevented the U.S. Food and Drug Administration (FDA) from asserting jurisdiction to regulate tobacco products because it was inconsistent with the intent that Congress had expressed in the Food, Drug and Cosmetic Act. Mr. Taylor explained that the high court's willingness to apply the doctrine might change.

"If it's cropping up more recently, I think that may be in large part because agencies are more broadly and more aggressively regulating than in the past," he said.

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