Congress must cut restaurant red tape for tipped workers

Waiter Tips Ruling
FILE – In this Dec. 7, 2011, a waiter reaches for plates at a restaurant in San Francisco. Restaurants must pay waiters and bartenders minimum wage when they are engaged in tasks such as cleaning toilets that are unrelated to their main jobs and do not offer tips, a divided U.S. appeals court ruled Tuesday, Sept. 18, 2018. At issue in the decision by an 11-judge panel of the 9th U.S. Circuit Court of Appeals was a federal law that allows an employer to pay workers who receive tips as little as $2.13 an hour as long as their tips earn them minimum wage. (AP Photo/Eric Risberg, File) Eric Risberg/AP

Congress must cut restaurant red tape for tipped workers

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Economic uncertainties are driving job losses in many industries, but the restaurant and hospitality industry continues to add jobs at a steady clip.

The opportunity to earn tips has driven many workers, myself included, into the restaurant industry. We don’t need to be stuck in a cubicle from 9 to 5 to earn well above the minimum wage. 


This system has worked well for decades. According to a study by the nonpartisan Employment Policies Institute, tipped workers in states that use the federal minimum wage report averaging more than $15 per hour — well above the full federal minimum wage of $7.25. Top tip earners have hourly take-home pay of up to $84 per hour, according to a survey from Upserve.

Indeed, the system is so successful that tipped workers have rallied to save it from attacks in over a dozen markets. Most recently, in my hometown of Portland, Maine, we defeated such a proposal on the ballot by 20 points. 

Despite its robust employee support, some in the Biden administration have made their distaste for the tipped wage known. Because legislative attempts to eliminate the tipped wage have met with bipartisan resistance, the president’s Labor Department used the rule-making process to cover the system with red tape. 

The Labor Department meddled with what counts as tipped work by splitting restaurant work into different categories. Employers can take a tip credit for “tip-producing work” but are subject to time-tracking requirements for related “directly supporting” work, such as servers setting tables and refilling condiments. If prep work takes more than 30 consecutive minutes or more than 20% of the shift, the tip credit can’t be used on any additional time spent doing prep work.

Any mistake, however unintentional, could result in a costly lawsuit. Some restaurants may choose to avoid using the tipped wage altogether. The Biden administration seems to view that as a feature rather than a failure of the rule. At the end of the day, tipped workers will end up with fewer hours and less money in our pockets. 

Congress can help clean up this mess. The Tipped Employee Protection Act of 2022, a bill sponsored by Sen. Mike Braun (R-IN) and Rep. Steve Womack (R-AR), would return simplicity to the tip credit. Rather than spend pages upon pages defining what a tipped employee is, the bill uses common sense: A tipped employee is someone who earns at least the full minimum wage between their base wage and tips.

Admittedly, my politics differ greatly from that of the sponsors, but I’m thankful for any legislation that provides certainty for tipped workers and restaurants. This will protect workers by cutting away the incentive to restrict hours or make harmful changes to payment systems. And it will protect restaurant owners from lawsuits that will inevitably follow when unintentional mistakes are made under this convoluted rule.

The 5th U.S. Circuit Court of Appeals is considering a request for a preliminary injunction to block this convoluted rule. But there’s no need for Congress to wait for the courts to decide whether these confusing and costly regulations should stay.


Joshua Chaisson is a server at the Porthole in Portland, Maine.

© 2022 Washington Examiner

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