More Supreme Court fallout

[BootmanLA]

As we've discussed here repeatedly, the Supreme Court's right-wing supermajority has, over the last few years, issued major opinion after major opinion overturning long-standing precedent in favor of obtaining a conservative outcome. The pre-eminent example, of course, is the Dobbs decision overturning Roe v. Wade, but I also mentioned, back in June, the case of Loper Bright Enterprises v. Raimondo, which overturned a key decision we know as Chevron v. NRDC.

The Chevron case held that if a federal law passed by Congress was ambiguous - that is, it could be interpreted in more than one way - then if a federal agency wrote regulations interpreting that law, its interpretation was binding as long as the interpretation was reasonable. Importantly, that means in a lawsuit over the regulation, the regulation would be upheld even if the court felt it had a better interpretation of the ambiguous law. In other words, defer to the experts.

Loper Bright threw that out and held that courts had to independently determine the best interpretation of the law in question. Given that you have judges across the ideological spectrum, that means who the judge is can largely determine what the law says.

Couple that with the way certain federal judicial districts assign cases. Each state has one or more federal district courts. And in each district, there are one or more (usually more) judges. In turn, depending on the geographic size of the district, there will be one or more federal courthouses for those judges. Here in Louisiana, for instance, we have three districts (Eastern, Western, and Middle). There is only one courthouse in the Middle District (in Baton Rouge) where all the MD judges sit; but the sprawling Western District, which covers all of the state outside the Baton Rouge and New Orleans areas, has no less than five separate "divisions", each with its own courthouse and one or more judges assigned to hear cases in that division.

In most cases, when a case is filed in a particular federal court (ie Western Louisiana), it is randomly assigned to one of the judges in that court, regardless of which physical courthouse/division the suit was filed in. But in a few federal judicial districts, most infamously in the Northern District of Texas, a case is assigned to a (or the) judge who sits in the specific division or courthouse where the case was filed. And in several of those divisions, a single judge sits, so you're guaranteed to get that judge.

Not surprisingly, those single-judge divisions are held by some of the farthest-right of the right-wing judges appointed by then-President Trump. And since all federal cases in Texas get appealed to the ultra-conservative US Fifth Circuit Court of Appeals, on which hard-right conservatives dominate 12 to 5, you have a perfect vehicle for challenging any federal regulation you don't like:

1. Create an entity based, on paper if nothing else, in Amarillo, Texas.

2. File suit in the federal courthouse in Amarillo. Your case gets assigned to a Trump-appointed judge, Matthew Kacsmaryk, who never met a federal regulation he supported.

3. Get Kacsmaryk to issue a nationwide injunction against the regulation, which he's always ecstatic to do.

4. Get the Fifth Circuit to uphold the injunction while the case proceeds.

5. Ultimately, get Kacsmaryk to rule against the regulation, and the Fifth Circuit upholds him.

6. Only in the most egregious of cases will the Supreme Court step in to stop them. 

For an example of what this means in real life, read on.

[BootmanLA]

Under the Fair Labor Standards Act (FLSA), employers pay a minimum wage of $7.25, but can pay certain workers a tipped wage of $2.13 as long as the employee, in his occupation, customarily receives at least $30 a month in tips. The key phrase is "in his occupation". 

In most restaurants, for instance, servers make tips. Employees who don't deal directly with customers usually do not. But sometimes there are tipped employees who also do work that non-tipped employees usually do. Are those non-tipped work duties part of the same occupation as the tipped work duties? If so, then all that employee's work may be paid at $2.13 as long as the wages plus total tips, divided by the total hours worked, is $7.25/hour. But if not, then the worker is due at least minimum wage for the "other" work, and the tips only supplement $2.13/hour for the time spent doing tip-producing work.

Moreover, what about cases where the tipped server is called on to help (regularly or not, briefly or not) with a non-tipped task? Obviously it would be problematic to have the server constantly switching between a tipped and a non-tipped wage throughout a shift.

So the Labor Department promulgated a rule, more than 3 decades ago, that basically drew an 80/20 line: if 80% or more of an employee's time was spent doing tipped work, then she could be paid as a tipped worker all the time. But if less than 80% of her time was spent doing tipped work, then the work had to be divided into tipped and non-tipped sections. In practice, this meant that a server who had to spend 30 minutes before each 5 hour shift rolling silverware into napkins could be paid as a tipped employee, because the tip work constituted more than 80% of her hours. But a person who worked as a non-tipped hostess for half the time in a shift and half the time as a server would be paid for half the hours at the non-tipped rate (which had to be $7.25 at a minimum, but might be much more depending on local laws and labor demand), and the tips would only count towards supplementing the $2.13 tipped wage for those hours.

Sensible. But, said the 5th Circuit, we don't think that's the right way to look at "in his occupation". If the restaurant wants to include hostessing, cleaning tables, sweeping, rolling silverware, repairing the walk-in cooler, changing the light bulbs, or painting the building (along with waiting tables) as "the occupation", and "the occupation" generates at least $30 a month in tips - maybe because only one shift per month is spent actually waiting tables - then the entire "occupation" may be paid at $2.13/hour; if that plus tips don't equal $7.25/hour, then they just have to make up the difference, regardless of what the going rate for the other "parts" of "the occupation" might be.

So the 80/20 rule is now vacated, unless the Supreme Court steps in to reinstate it. And that applies nationwide, because vacating a rule means it's no longer valid anywhere at all. 

Watch for a thousand such examples to pop up now that Chevron deference is gone.