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Ordinarily, the law governing how agencies create regulations the Administrative Procedure Act requires a thirty-day window between when a rule is published in the
Federal Register and becomes “final” and when the rule is formally in effect. One exception to that requirement is the “good cause” exemption.
1 This exemption was invoked frequently in a series of regulations issued late in the Trump administration. So, where does this leave the Biden administration in an effort to reverse any such regulations? And what are the ramifications for those who are regulated? Here, we discuss these questions and how at least one federal court has recently reacted to such an “immediately effective midnight rule.”
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The anticipated decision by the U.S. Court of Appeals for the Ninth Circuit in
Teamsters v. FMCSA dealing with federal preemption of California meal and rest breaks for motor carriers, highlighted in a previous Transportation Blog on Jan. 12, 2020,
1 was more imminent than was suspected. In its decision issued on Jan. 15, 2021, the Ninth Circuit rejected the Teamsters challenge to the Federal Motor Carrier Safety Administration s (FMCSA) authority and upheld the FMCSA s order that California s meal and rest break rules (MRB rules) were preempted by the FMCSA Hours of Service Rules (HOS rules) as they applied to drivers of property-carrying commercial motor vehicles. See California s Meal and Rest Break Rules for Commercial Motor Vehicle Drivers, Petition for Determination of Preemption, FMCSA Docket No. 2018-0304, 83 FR 67470 (Dec. 28, 2018).
The United States Court of Appeals for the Ninth Circuit on January 15 upheld the Federal Motor Carrier Safety Administration’s (“FMCSA”) determination that federal law preempted.
The U.S. Department of Labor (DOL) has issued its long-awaited
Final Rule addressing who may share tips under the Fair Labor Standards Act (FLSA) and the circumstances under which employers may use a tip credit.
The Final Rule will be effective 60 days after publication in the Federal Register.
Summary of Final Rule
e.g., servers in the restaurant industry) to pool tips with non-tipped workers (
e.g., cooks and dishwashers), so long as the employer does not take a “tip credit” (
i.e., paying tipped employees a direct wage below the minimum wage) and, instead, pays such workers a direct wage equal to or greater than the minimum wage. Many commenters have argued that permitting only servers to receive tips, which in many restaurants can be very lucrative, yet prohibiting the kitchen staff, who prepare the food, from receiving tips was unfair.