A group of 40 Democrats said in a letter Monday that the Labor Department is violating the federal rulemaking process in its effort to rewrite the workplace rules on tipping.
The lawmakers argued that the Trump administration is not giving critics of the policy enough time to register their opposition.
Under current law, employers, such as restaurants, whose workers often receive tips can opt to pay those workers less than the minimum wage provided that the tips are pooled and distributed among the workers. The idea is that the tips compensate for the minimum wage. Tip pooling is prohibited if the workers are paid at least the minimum wage.
The Labor Department said last week that there is a “strong argument” that employers should be allowed to pool tips even if the workers do make the minimum wage. Doing this would give “employers and employees greater flexibility in determining pay policies for tipped and non-tipped workers,” the department argued. It has solicited public comments on the matter, the first step in rewriting the rules.
Critics have argued that the change potentially would allow employers to simply seize all workers’ tips. In Monday’s letter, the Democrats said that the monthlong public comment period that the administration has allowed isn’t sufficient: “To comply with comment period requirements and given the absence of a quantitative analysis, the department should extend the comment period for not less than 30 days, or at least until Feb. 3, 2018, to allow stakeholders to conduct and review a quantitative analysis and provide meaningful input on the impact of the proposed rule.”
Charging that federal rulemaking regulations were not followed would allow critics to argue in court that the department did not follow the Administrative Procedures Act, the main law covering federal rulemaking. The lawmakers, led by Rep. Bobby Scott, D-Va., the top Democrat on the House Education and the Workforce Committee, requested that the department respond to their in inquiry by the end of the week.
