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A federal spending bill passed in 2018 abolished a 2011 regulation prohibiting tip pooling; managers can now require that servers share tips with kitchen staff in states where employers do not take a tip credit. This change allows tip sharing among both customarily and non-customarily tipped employees in Oregon, including dishwashers and cooks. Managers, supervisors, and owners cannot participate in the tip sharing. A proposed rule to implement the change has been released as of October 7, 2019; comments are due by December 9, 2019.
One thing this proposed rule seeks to address is that the words “supervisor” and “manager” were not defined in the 2018 spending bill. This is especially important to our industry since many have hybrid approaches to their service positions. Supervisors and managers in some of Oregon’s smallest restaurant operations commonly serve guests and have participated in front-of-the-house tip pools as a part of a team approach to foodservice. Employers are to use the “duties test” to determine who qualifies as a supervisor or manager, and establish tip pool eligibility. Essentially, if an employee’s primary or regular duty is not management or supervising, they are still allowed to participate in a tip pool. For details on the standard of the “duties test,” read the U.S. Department of Labor (DOL) Field Assistance Bulletin. Prior to this change, the decision to participate in a tip pool was left to employees. For more context on the issue, check out Tipping the Scales (Oregon Business, April 2018). The Bureau of Labor and Industries (BOLI) FAQ may answer any additional questions regarding tips at Oregon.gov/BOLI. Restaurant Employee Compensation Tools With tip pooling being legal with back of the house employees, employers may have questions about what their options are. ORLA launched a Restaurant Compensation Solutions Workgroup to review tools being implemented in restaurant operations across the state, including mandatory service charges, tip pooling policies based on sales that assist in compensating kitchen staff, and dual tip lines notating tip options for both servers and kitchen staff. Tip pooling policies should be carefully reviewed with counsel before implementation to ensure compliance with all applicable requirements. For more on this subject, click the links below.
News/Resources:
For additional questions, contact Greg Astley, Director of Government Affairs, at 503.682.4422. [updated 10.28.19]
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Oregon’s lodging tax investments could be drastically reduced if Senate Bill 595 passes.
If successful, SB 595 would eradicate the critical lodging tax reforms of 2003 by taking 30% of our industry’s 70% of any new or increased lodging tax implemented since July 2, 2003, and allowing local governments to redirect those funds for “affordable workforce housing” projects. The result would allow only 40% of new or increased local lodging taxes to be protected for tourism promotion and tourism-related facilities. ORLA was at the table in November supporting Measure 102, giving communities across Oregon greater flexibility to create the workforce housing they need. ORLA continues to be willing and ready to engage in productive conversations about alternative solutions that can benefit communities and foster economic development without targeting one industry. The Senate Committee on Housing held a public hearing for SB 595 on February 18. We need lodging industry members to take action now! Email members of the Senate Committee on Housing and tell them how important the 70% protections are to growing Oregon’s tourism economy. Urge them to consider alternatives to workforce housing initiatives. • Senator Shemia Fagan, Chair: sen.shemiafagan@oregonlegislature.gov • Senator Dallas Heard, Vice-Chair: sen.dallasheard@oregonlegislature.gov • Senator Jeff Golden, Member: sen.jeffgolden@oregonlegislature.gov • Senator Tim Knopp, Member: sen.timknopp@oregonlegislature.gov • Senator Laurie Monnes Anderson, Member: sen.lauriemonnesanderson@oregonlegislature.gov Read more about the bills ORLA is engaged and/or tracking this session at OregonRLA.org/billtracking. If you have any questions on this bill, please reach out to me via email at JBrandt@OregonRLA.org or call me directly at 503.302.5060.
Protecting Our Industry
During this session ORLA will be tracking several bills and engaging on those particularly to the hospitality industry. Members are encouraged to stay informed and engaged on the issues by subscribing to ORLA communications. If you have any questions, contact Greg Astley, Director of Government Affairs, at Astley@OregonRLA.org.  Hospitality workers make our thriving tourism industry possible. For every dollar we invest in tourism promotion, $237 comes back to Oregon in visitor spending—in addition to $11 in local/state tax revenues for important community priorities—according to third party research by Longwoods International. However, restaurant and lodging employees from Ashland to Portland, Coos Bay to Bend, are finding it more difficult to find housing close to their place of work.
Due to rising housing costs, these hard-working Oregonians are finding it more difficult to secure housing options that meet their needs. The result is long distance and congestion-filled commutes that mean less time spent with families and more money spent on transportation. Hard-working Oregonians should be able to afford to live near their job, but a lack of affordable housing options across the state is making that more difficult. Across Oregon, there is an opportunity to lift the ban to public-private housing development partnerships that assist in solving the challenges we face. Support for Measure 102 will give local governments the opportunity to create comprehensive workforce housing proposals and present them for consideration to local voters. We believe communities deserve the right to vote on housing proposals that, if planned appropriately, can stimulate local economic growth while adding to the quality of life for hospitality workers and their families. Measure 102 is an important, bipartisan measure that will give communities across Oregon greater flexibility to create the housing they need. By allowing local governments to partner with non-profit and private housing providers, any bond dollars they raise specifically for affordable housing will be able to go further, creating more affordable homes. This measure is a small tweak that will have a big impact in the lives of Oregonians. Please join us in voting Yes for Measure 102. Oregon's Minimum Wage Continues to Rise
The 7-year minimum wage escalation plan for Oregon went into effect with the first increases on July 1, 2016. The plan includes 3 regions with different escalation methodologies over the course of those 7 years. The wage scale is as follows: STANDARD: Includes portions of Multnomah / Clackamas / Washington Counties not within the Portland Urban Growth Boundary as well as Marion, Clatsop, Polk, Josephine, Jackson, Deschutes, Lincoln, Benton, Linn, Lane, Tillamook, Yamhill, Columbia, Hood River, and Wasco Counties. • July 1, 2016: $9.75 • July 1, 2017: $10.25 • July 1, 2018: $10.75 • July 1, 2019: $11.25 • July 1, 2020: $12.00 • July 1, 2021: $12.75 • July 1, 2022: $13.50 PORTLAND METRO: The Portland Metro rate applies to employers located within the urban growth boundary (UGB) of the metropolitan service district. This includes portions of Multnomah / Clackamas / Washington Counties and cities including Portland, Gresham, Troutdale, Fairview, Hillsboro, Beaverton, Tigard, Tualatin, Sherwood, Forest Grove, Wilsonville, Lake Oswego, West Linn, Oregon City, Gladstone, Happy Valley, Milwaukie, and Damascus. Use Metro's Urban Growth Boundary lookup tool to determine if your address is within the UGB. • July 1, 2016: $9.75 • July 1, 2017: $11.25 • July 1, 2018: $12.00 • July 1, 2019: $12.50 • July 1, 2020: $13.25 • July 1, 2021: $14.00 • July 1, 2022: $14.75 The Urban Growth Boundary is expanded through the process outlined in Title 14 of the Urban Growth Management Functional Plan. The process involves a needs assessment every 6 years, and as-needed review based on local jurisdiction input on a more frequent basis. For questions about the process of UGB expansions, contact Tim O’Brien at Metro. NONURBAN: Includes Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, Wheeler counties. • July 1, 2016: $9.50 • July 1, 2017: $10.00 • July 1, 2018: $10.50 • July 1, 2019: $11.00 • July 1, 2020: $11.50 • July 1, 2021: $12.00 • July 1, 2022: $12.50 ORLA will continue to educate Oregon’s lawmakers on the value of tip credit as a solution to bring stability to the industry and solve wage inequality issues. Update: Portland Mayor Ted Wheeler’s office recently announced a plan to increase the Portland business tax from 2.2% to 2.6% to pay for an additional 58 officers in the police budget. That number was reduced to 49 new officers, however the City Council agreed to hire 55 officers by the 2019-20 budget year. The tax was something of a surprise to us but does not in any way diminish our commitment to increasing the number of police officers in Portland. The Portland Business Alliance (PBA) is supporting the increase on business taxes and agreed to step up on this tax increase in order to help address Portland’s top issue of homelessness, which impacts businesses and livability throughout the city. The additional revenue will be targeted toward measurable outcomes. Like the Portland Business Alliance, ORLA is supportive of the focused efforts on homelessness, providing community-based policing and targeting measurable outcomes. Visitors to and residents of Portland should feel safe to walk the streets, day or night, and should believe Portland to be a place welcoming their presence and patronage. Support for Portland Policy Bureau's Budget Request As the City of Portland continues to be a preferred destination for many visitors regionally, nationally and internationally, it’s important they feel safe while staying in our hotels, eating at our restaurants and enjoying all we have to offer in the hospitality industry. With the 2018-2019 budget season well underway, the Mayor’s Office is encouraging constituents with public safety concerns to give testimony in support of Portland Police Bureau’s budget request for additional officers. The Portland Police Bureau is struggling to fulfill its mission to serve and protect due to a lack of funding and resources. As both the population of Portland and the number of visitors grows, they are being asked to do more with less. There are the fewer officers in the bureau than there were a decade ago, despite a 10 percent increase in Portland’s population. Consequently, the bureau continues to face challenges in patrol staffing, which has led to declining response times. In the last five years, total 911 call volume has increased by over 22%. These calls include a 97% increase in stolen vehicle calls, 64% increase in unwanted persons calls and a 32% increase in disorder calls. Mayor Wheeler is proposing adding 93 additional sworn positions and 9 additional non-sworn positions at a cost of $12.3 million and a one-time funding request of $8.8 million which includes $2.6 million for technology replacement and $3.8 million for facilities enhancements. This budget request would increase the number of officer positions by approximately 10 percent--on par with Portland’s growth. Key Points to the Proposal The Police Bureau's budget requests for additional ongoing resources will advance the bureau’s mission and goals to provide 21st Century Policing services, to support organizational excellence and inclusion, and to rebuild their units to deliver community policing. Priorities include:
Read more on ORLA's engagement in Portland's homeless issues. Share Your Testimony We want to show the Mayor we support his priorities to increase public safety and police accountability to enhance livability. Submit your testimony online or attend a public hearing. If you send an email, please Cc: Astley@OregonRLA.org on your message to the City Budget Office so we can share our industry's collective feedback. Attend a Hearing:
Budget Committee Hearing May 10, 2018, 6:00pm - 8:30pm Council Chambers, Portland City Hall 1221 SW 4th Ave., Portland, OR 97204 Council Action to Approve City Budget May 16, 2018, 2:00pm Council Chambers, Portland City Hall 1221 SW 4th Ave., Portland, OR 97204 Related News: Hospitality Business Leaders Act on Portland’s Homeless Issues A Powerful Voice on Key Industry IssuesORLA’s government affairs team is dedicated to promoting and protecting the foodservice and lodging industries of Oregon. By advocating for public policies that sustain our industry, and by working on behalf of local businesses, we are the voice of hospitality at the local, state and national levels.
Fighting Against Additional Labor Regulations Small businesses in Oregon are still adjusting to increasing minimum wage rates, paid sick leave, and Oregon’s new scheduling law. As a result, ORLA will fight any attempts to implement Paid Family Leave during the 2018 session. Laws relating to Paid Family Leave are currently on the books in both Washington and California and Oregon’s legislative leadership have signaled an interest in implementing paid family leave legislation. Fair Payment of Lodging Taxes by Lodging Intermediaries ORLA, in partnership with the League of Oregon Cities, will be pursuing a legislative fix to make sure online travel platforms like Airbnb pay all applicable lodging taxes when they are collecting payment for the lodging stays. The legislative fix would treat online travel platforms the same way as other lodging companies collecting revenue for lodging stays including other online travel companies like Expedia and Priceline. Advocating for Oregon’s Tourism Investment Plans ORLA continues to fight for the appropriate use of lodging tax dollars at the local, county, and statewide levels as required by law. Since July 1, 2003, 70% of any new or increased portion of lodging taxes must fund tourism promotion or tourism related facilities. The remaining 30% can be spent on general fund expenses as designated by the taxing jurisdiction. ORLA believes in the full preservation of the 2003 law and will protect its integrity as one of our most crucial tools in growing and enhancing Oregon’s tourism export economy. Fighting for Tip Pooling Tip pooling has become a legal spider web, given the complicated state-by-state variations. In a move to further clarify the law, restaurant industry trade associations filed a lawsuit against the U.S. Department of Labor (DOL) asserting the DOL has overstepped its bounds in revising regulations on tip pooling. Although the DOL has announced they propose to rescind the regulations that bar tip sharing, we continue to work with the National Restaurant Association and other partners to take our case to the U.S. Supreme Court. Ensuring Fairness for Short-Term Rentals Illegal short-term rentals endanger customers’ lives, ignore existing laws and it’s unknown whether they are reporting and remitting the proper lodging taxes. The State of Oregon should pass legislation that requires short-term home rental properties to register with their local taxing authority before they are marketed through online exchange sites. Additionally, for jurisdictions that have a business-licensing program in place, operators should secure the proper licenses and report and remit their room tax collections. Music Licensing In partnership with Oregon Winegrowers, ORLA will be pursuing stronger protections for restaurant operations against predatory music licensing investigators. In order to make sure restaurants are paying appropriate fees for licensed music playing in their establishment, music licensing companies enlist the help of investigators who have been reported to harass and threaten restaurant operators. ORLA is interested in tightening up rules and regulations for how operators can be approached about their music licensing arrangements to assist in the amicable resolution of laws governing the commercial use of copyrighted music. Advocating for Comprehensive Immigration Reform Comprehensive immigration reform must include all aspects of immigration issues—border security, worker supply and employee verification—which means that Congress is the only political body which can actually solve the immigration problem. State and local governments only make a solution more complex by trying to pass their own laws. ORLA is opposed to random, individual pieces of immigration reform and supports Congress working together on a national level to enact comprehensive reform. Defending Lottery Retailers and Commission Rates ORLA is the only major trade association in the state that has defended lottery retailers since the introduction of video lottery in Oregon. ORLA defends commission rates and protects against extreme regulatory attacks, such as increased casino expansions off tribal reservations. ORLA is supportive of gaming as entertainment, adjunct to the hospitality industry. Protecting Small Businesses from Local Jurisdictional Control One of the biggest threats to independent businesses in Oregon is the desire by local governments to control private employer-employee relationships. By creating laws that mandate employee benefits within the boundaries of a city or county, businesses face a patchwork of regulations that differ from one location to another, and workplace fairness is compromised. ORLA believes that enacting a preemption that labor practices are set at the state level gives businesses stability and offers a better environment for economic growth. Strengthening Oregon’s Roads and Bridges ORLA believes in the importance of a comprehensive transportation plan that funds needed infrastructure projects throughout Oregon. The flow of people, goods, and services is crucial to the success of Oregon’s hospitality industry and the experience of Oregon’s visitors. Stay up-to-date at OregonRLA.org/GA. Over the course of the past few years, our professional staff at the Oregon Restaurant & Lodging Association has traveled around the state holding regional meetings with Oregon's small businesses operating within the hospitality industry. As a result of those experiences we know firsthand the degree to which our small businesses feel challenged by the United States Department of Labor's 2011 rule.
As costs rise within restaurant operations, Oregon's restaurants must in turn raise prices. The result of those realities is a growing disparity between Oregon's front-of-the-house workers and back-of-the-house workers. Many operators are paying back-of-the-house workers at rates of $15-17 an hour given the marketplace demand for those positions. The front-of-the-house is typically making Oregon's minimum wage plus tip income which can result in an hourly wage of $30-$50 an hour and sometimes more. We routinely receive reports that front-of-the-house workers can make as much as three times the wage as those working in the back-of-the-house. In Oregon, the minimum wage will continue to rise every year on July 1 through the year 2022. What we're hearing from our industry is that something must be done to stop the regulatory forces that are driving wages and people further away from each other within the walls of our restaurants. If something is not done our wage gap between workers who are all working together to service the customer will continue to grow and result in cultural, workforce, and small business challenges that escalate and make Oregon a more difficult place to operate a small business. We know the average small business restaurant in our great country makes 2-5% profit meaning for every $1 million in sales, the restaurant owner makes $20,000 - $50,000 in profit. Our industry operates in one of the slimmest profitability environments in the country. At the same time, restaurants in our country provide one of the best places to build skills and values in a professional setting. Many restaurant operators are proud to provide Americans with their first job or their second chance. They pave the way for career building opportunities and provide employees with the opportunity to build a strong work ethic, a keen attention to detail, and the ability to hone their interpersonal skills. Rescinding the 2011 rule would be a decision to sustain the viability of Oregon's small business full service restaurants. We know already that if this were to happen, many operators would implement a modest tip pooling arrangement as the minimum wage continues to go up for Oregon's front of the house workers who aren't making minimum wage. As the minimum wage goes up for servers (even though they aren't making anywhere close to minimum wage) operators would have the ability to modestly increase the tip pool with back of the house workers to counteract the server wage increase. Those actions can create higher wages for Oregon's very crucial back of the house workers, keep Oregon's servers at significant wages, and allow the restaurant operator to continue pursuing their goal of 2-5% profit on overall sales. There has been significant impacts on Oregon's restaurants as a result of the 2011 rule and we hope to have the opportunity to assist our small business operators in their efforts to build a culture that showcases the value of all their workers through the payment of more balanced wages. For questions, contact Jason Brandt, President & CEO, or Greg Astley, Director of Government Affairs, at 503.682.4422.
The City of Portland’s challenge with the homeless crisis is not new, but it’s a growing issue demanding more attention from the City, especially in light of recent outcries from downtown businesses. The issue was a hot topic at ORLA’s Portland Lodging Alliance meeting this week, where several area lodging operators discussed recent talks with city leaders and next steps businesses can take. Hoteliers have seen an increase in antisocial, threatening and criminal behavior among homeless individuals outside (and in some cases inside) their hotels and are looking for real solutions from city leaders.
Earlier in November, ORLA President and CEO, Jason Brandt, and Government Affairs Director, Greg Astley, along with a few restaurant owners and hoteliers, met with Mayor Ted Wheeler and Commissioner Nick Fish to discuss the industry’s concerns and how the city plans to address homelessness. While the Mayor conveyed, they are taking steps including increasing community policing, he’s asking for help from the business community. Greater enforcement and new ordinances regulating homeless behavior on city streets need to be considered, and industry members are encouraged to keep pressing city leaders to find solutions. At an invitation-only meeting on November 21, city leaders gave several business owners the opportunity to voice their concerns about the growing homeless problems in downtown Portland. Mayor Ted Wheeler, Portland Police Chief Danielle Outlaw and Multnomah County Sheriff Mike Reese participated in the town hall. In addition to more officers on the streets, some parts of downtown labeled "high pedestrian zones" may soon ban overnight camping, including on sidewalks and doorways. The homeless issue is not isolated to downtown Portland, it’s everywhere, and lodging properties near the Portland Airport are also speaking up and taking action. ORLA is working with the PDX Airport Lodging Group in conjunction with Travel Portland’s Community Action Committee to address some of the issues such as car break-ins, vandalism, aggressive panhandling, and drug use. Lodging operators were provided forms to use in reporting incidents that include the potential loss of revenue and/or cost of the incident to their property. With the information gathered, ORLA will continue to push the City of Portland to prioritize and take action in those areas where businesses are being affected by these incidents. If you’d like to get involved or have questions regarding the issue, contact ORLA’s Director of Government Affairs, Greg Astley at 971.224.1502 or email Astley@OregonRLA.org. Related News: Support Portland Police Bureau's Budget Request After a district court overturned the Obama-era overtime regulation in August and the Department of Labor (DOL) decided not to contest the ruling, the Fifth Circuit Court of Appeals made the final ruling last week by closing the pending case that first put a temporary hold on the rule last November. As the National Restaurant Association’s Restaurant Law Center was part of the management team that oversaw the legal strategy, we're pleased the controversial rule is behind us, as it could have done significant damage to both employers and employees. The NRA has put together comments for the DOL in response to their request for information (RFI). ORLA will keep you informed when updates are available.
Related: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/judge-strikes-down-obama-dol%27s-overtime-rule.aspx https://www.law360.com/articles/959770/obama-dol-s-overtime-rule-struck-down ORLA Advocacy: Seeking Smarter Approaches
The debate over minimum wage has been front and center in the media this past year, both nationally and in Oregon. In March of 2016, Governor Kate Brown signed into law a new 7-year minimum wage escalation plan for Oregon with the first of seven minimum wage increases effective July 1, 2016. The plan includes 3 regions with different escalation methodologies over the course of those seven years. For more information, see Oregon's Minimum Wage Escalation Plan. Oregon is above the national average in unemployment rates, and for minor-aged workers, it’s even higher. While the rhetoric swirls on all sides of the minimum wage discussion, raising the minimum wage actually gives little buying power. Rather, it creates a reduction in available hours among lower skilled workers, and the goods and services they use increase in cost. Research shows that raising the minimum wage hurts the least-skilled and least-experienced jobseekers the most. Read more about how raising the minimum wage hurts the least-skilled and least-experienced jobseekers the most. Additionally, watch The Real Faces of the 'Fight for $15' on YouTube. Boosting Employment Opportunities for Younger Workers Oregon added tens of thousands of new jobs while recovering from the Great Recession of the 21st Century, but recent job growth completely overlooked younger workers. There were actually fewer workers from the age group 14 to 21 years in 2012 than in 2010, according to a study done by the Oregon Employment Division entitled “Endangered: Youth in the Labor Force.” Yet studies have consistently shown that when teenagers enter the job market earlier in life, their earning potential increases over their lifespan. Additional increases in the minimum wage, over and above current indexing, will create employee management concerns and potential pricing increases in the very industries that have long been training grounds for employees newly entering the workforce. Compromise and Economic Strength is the Answer If backers of higher minimum wages want to help those living solely on minimum wage, they should address the issue through the legislative process and work towards meaningful compromise. There are provisions in the Federal Fair Labor Standards Act, and in more than 40 states currently, that would help businesses manage their hours through the consideration of tipped employees and minor-aged workers. Most people listed as minimum wage workers in Oregon are either tipped employees making and reporting over $20 per hour in combined income, or are minors who live with their parents and are gaining much-needed work experience. If the legislature worked in concert with Oregon’s business community to grow the economy, all citizens would benefit. The focus needs to be on income growth and job creation through a prosperous economy; that’s how government benefits too through increased revenues and lower unemployment. ORLA’s Policy on Minimum Wage The Oregon Restaurant & Lodging Association (ORLA) supports efforts to remove the annual indexing, or at the least add language that considers economic factors like unemployment rates. ORLA is opposed to any increases in the minimum wage that do not take into account the factors of entry level workers or tipped employees. For more information, see Oregon's Minimum Wage Escalation Plan. View a map of 2018 minimum wage rates across the country. ORLA Advocacy: Promoting and Advocating for Tourism Investment Plans
ORLA helped protect lodging tax revenues by opposing legislative bills that would have allowed cities to use these revenues for purposes other than intended. Read more on the 2017 Legislative Session update. Background HB 2267, from Oregon’s 2003 Legislative Session, was designed to raise revenue for the promotion of tourism in Oregon. First, the bill instituted a 1 percent statewide lodging tax on all lodging properties in Oregon. This money was dedicated to the promotion of tourism through Travel Oregon, acting as Oregon’s tourism department. Second, the bill required any local governments with a lodging tax in place to determine what percentage was currently being used for tourism promotion and maintain at least that level in the future. The percentage is not allowed to decrease. The bill also required any local government that institutes a local lodging tax in the future to use at least 70 percent of the new revenue for tourism promotion. No more than 30 percent of the new revenue can be used for general funds or other non-tourism functions. The Oregon Restaurant & Lodging Association worked with Local governments to clarify collection laws around Online Travel Companies. This should bring in millions of dollars more annually for tourism promotion. ORLA is also involved in efforts to attract events to Oregon that bring visitors and promote the state. Some examples in recent history were helping to pass legislation that added money to improve college athletic programs and allowing for NCAA March Madness games to be played in Oregon, and protecting tax credit programs that bring film and video production to Oregon. Issue ORLA must ensure that these state statutes remain in place. Any lodging taxes, state or local, need to bring travelers and businesses to Oregon. All retail businesses profit from increased travel; additionally, local government must be encouraged to keep promotional dollars directed to these efforts. Finally, there are always opportunities to attract more events like feature films, major sporting events, concert venues, and wine tours that benefit the industry as a whole. ORLA will work to enhance these efforts, which bring people to Oregon and encourage Oregonians to travel more in and around the state. Position Oregon Restaurant & Lodging Association supports current laws that protect lodging tax dollars going to tourism promotion and tax credits that encourage film and video attraction to Oregon. ORLA believes in protecting the dedicated tourism funds to ensure they continue to be allocated to tourism promotion at the state and local levels. This effort will benefit all retail businesses and local economies throughout our state. UPDATE September 20, 2017: ORLA and members of other business groups worked together to negotiate substantial, positive changes to SB 828, the restrictive scheduling bill, before it was finally passed and signed by the Governor. Here's what you need to know about Oregon's scheduling law.
ORLA Advocacy: Fighting for Tip Pooling
ORLA joins other industry associations in legal action against the Department of Labor on a recent rule prohibiting tip pooling for back-of-house workers. Read the latest update and options for restaurateurs to consider. Background Tip Pooling has become a legal spider web, given the complicated state-by-state variations. Many jurisdictions have seen court battles with companies defending their tip pooling arrangements, and also have seen the courts sorting out the intricate details of what is and what is not considered a tip pool. In a recent move to further clarify the law, restaurant industry trade associations have filed a lawsuit against the U.S. Department of Labor (DOL) on behalf of restaurants and restaurant employees who share in tips and participate in tip pools. The lawsuit was brought by the Oregon Restaurant and Lodging Association, the Washington Restaurant Association, the Alaska CHARR and the National Restaurant Association, along with a Portland, Oregon restaurant and an employee of that restaurant. Issue The lawsuit, filed in the United States District Court in Portland, asks the court to declare recent DOL regulations prohibiting back-of-the-house (kitchen) workers from sharing in tips left by customers unlawful and not applicable to restaurants that pay employees who share the tips at least federal or the applicable (if higher) state minimum wage with no tip credit. The District court agreed with the restaurant side’s arguments, again. The case is now on appeal in the U.S. Ninth Circuit Court. This lawsuit arose after ORLA’s victory in Cumbie v. Woody Woo, Inc. in 2010, allowing tip pooling in the Ninth Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The Department of Labor published a conflicting “Final Rule” in the Federal Register (76 Federal Register 18832). This conflicting rule amends and implements new tip pooling regulations that conflict in certain areas with the law in some states included in the Ninth Circuit. DOL’s conflicting regulations state in pertinent part: Tips are the property of the employee whether or not the employer has taken a tip credit under section 3(m) of the FLSA. The employer is prohibited from using an employee’s tips, whether or not it has taken a tip credit, for any reason other than that which is statutorily permitted in section 3(m): As a credit against its minimum wage obligations to the employee, or in furtherance of a valid tip pool. The DOL defended its new regulation issued May 5, 2011 on the basis of three points: (1) that the Woody Woo case preceded the 2011 DOL regulation, and therefore was not under consideration or supposedly covered by the ruling; (2) the Woody Woo case was an unpublished decision and thus has no “precedential value;” and (3) that a court’s construction of the statute trumps an agency construction only if the prior court decision follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. ORLA is working closely with the National Restaurant Association (NRA) to seek declaratory judgment that will resolve the conflict between the Woody Woo decision and the DOL’s later published regulations. Such a judgment is a court decision in a civil case that declares the rights, duties, or obligations of one or more parties in a dispute. Such a judgment will resolve indeterminacy in the law or in its application to facts. A declaratory judgment is legally binding, but does not order any action by a party. Oregon is not the only state fighting over tip pooling in the Ninth Circuit. In Nevada, the District Court in Las Vegas found the Wynn’s policy requiring dealers to split their tips with floor supervisors and pit bosses unlawful under Nevada. The Wynn originally enacted this policy five years ago to raise the salaries of its pit bosses and supervisors to the level of pay received by dealers. In order to pay their supervisors and pit bosses more, the Wynn (and its sister property the Encore) gave supervisors and pit bosses a $5,000 annual raise and a share of the dealers’ tips. The case will be appealed to the Nevada Supreme Court and any effects will be on hold until that case is decided. ORLA Position ORLA believes that the Department of Labor has overstepped its bounds in revising regulations on tip pooling without regard to the previous 2010 court case Woody Woo. If the Ninth Circuit issues a declaratory judgment in our favor, upholding its previous Woody Woo decision, it could resolve the tip pooling issue for states in the Ninth Circuit for good. ORLA Advocacy:
Strengthening Oregon’s Roads and Bridges ORLA believes in the importance of a comprehensive transportation plan that funds needed infrastructure projects throughout Oregon. The flow of people, goods, and services is crucial to the success of Oregon’s hospitality industry and the experience of Oregon’s visitors. ORLA is closely watching the 2017 Oregon Legislature in discussions of potential transportation plan proposals. |
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