Texas Attorney General Ken Paxton has joined an Ohio-led amicus brief urging the Fifth Circuit to oppose a Department of Labor (“DOL”) rule that attempts to re-interpret the definition of a “tipped employee” under the Fair Labor Standards Act (“FLSA”) and unconstitutionally deprives states of their sovereign power over economic activity within their own borders.

While DOL claims the rule is necessary to address ambiguity in Congress’s definition of a tipped employee, the existing definition under FLSA is clear and supported by the plain meaning of the language used in the Act. In fact, this is the first time that the agency has attempted to re-interpret the tipping rule by which some employers may pay employees less than the minimum wage if their compensation includes a certain amount per month in tips. The rule also exceeds federal authority. An agency cannot independently impose new minimum wage requirements.

The brief urges the Fifth Circuit to reverse a district court ruling and set aside the DOL rule as the agency has attempted to reinterpret a term that Congress already defined, the agency has sought to reduce State power over employment relations without Congressional approval, and the rule directly threatens small business viability for employers such as restaurants, nail salons, and more.

The brief states: “Agencies cannot replace Congress’ expressed intent with their own preferred policy by claiming newfound ambiguity in a statute that has been functioning for decades. Instead, it takes a clear statement from Congress to authorize federal law that would redraw lines of State and federal sovereignty.”

To read the amicus brief, click here.