Iowa Attorney General Tom Miller challenges a Trump administration rule change that could take tips away from servers

Iowa Attorney General Tom Miller (right). — illustration by Jordan Sellergren

For the 37th time in just over a year, Iowa Attorney General Tom Miller is taking on the Trump administration. On Monday, Miller joined with 16 other state attorneys general in sending a letter to the U.S. Department of Labor (DOL) objecting to plans to overturn an Obama era regulation that protects the tips of restaurant and bar workers.

The 2011 regulation declared tips to be the property of the workers who collected them, preventing managers from forcing employees to pool their tips. Prior to the introduction of this regulation, servers who received tips were commonly required to turn in those tips at the end of a shift, so some of that money could be given to staff members who don’t receive tips. By reducing what the tipped staff was taking home, restaurant managers were able to increase the take-home pay of workers like dish washers, without actually increasing their salaries.

“The proposed rule rescinds those portions of the 2011 regulations that restrict those portions of the 2011 regulations that restrict employer use of customer tips when the employer pays at least the full Federal minimum wage,” according to the DOL. As critics of proposed change point out, there is nothing in the proposal to prevent managers and owners from keeping the tips for themselves.

Responding to emailed questions from Little Village, Geoff Greenwood, communications director for the Iowa Attorney General’s Office, said, “Attorney General Miller is concerned that this proposed rule change will result in Iowa workers losing significant earnings, because employers would be allowed to pocket tips earned by employees who are paid the federal minimum wage.”

The letter from the 17 state attorneys general didn’t just object to killing the tip regulation as a policy matter, it also warned Secretary of Labor Alexander Acosta that the DOL could face a lawsuit for failing to following proper procedures in the rule-making process, if it moves forward with the change.

On Feb. 1, Bloomberg Law reported, “Labor Department leadership scrubbed an unfavorable internal analysis from a new tip pooling proposal, shielding the public from estimates that showed employees could lose out on billions of dollars in gratuities.”

On Monday, the DOL Inspector General’s office announced it was opening an investigation into how the DOL was handling the tip regulation. The letter from the attorneys general warned that by withholding the analysis of the economic impact of the proposed change, the DOL may be violating the Administrative Procedure Act.

The DOL told Bloomberg Law that it withheld the economic analysis, because “officials disagreed with assumptions in the analysis that employers would retain their employees’ gratuities, rather than redistribute the money to other hourly workers.”

This letter marks the 37th time Miller has taken an official action to oppose a policy of the Trump administration. His first action came in Feb. 2017, when Miller joined a friend of the court brief in a lawsuit challenging the so-called Muslim travel ban.

Asked about the frequency with which Miller has challenged the Trump administration, Greenwood said, “As to various actions, which could include multistate letters, multistate amicus (friend of the court) briefs or multistate lawsuits, Attorney General Miller evaluates the merits of each action on a case-by-case basis.”

Miller, a Democrat, was first elected to his office in 1979. He is running for reelection this year, and is currently unopposed.

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