Court Allows FLSA Dual Jobs Claim to Proceed

Kimberly Knox and Kayla Bratcher worked as bartenders and servers at a Buffalo Wild Wings restaurant in Avon, Indiana. As is commonly the case with restaurant service employees, Ms. Knox and Ms. Bratcher were paid via a tip credit that resulted in them receiving $2.13/hour from their employer with the remainder of their wages coming via earned tips.

Under the Fair Labor Standards Act, in order for the aforementioned tip credit arrangement to be lawful, the employee must: (1) be engaged in an occupation in which she customarily and regularly receives more than $30.00 a month in tips; (2) be informed of the tip credit wage provisions; (3) receive an additional amount on account of the tips equal to any difference between the tip-credit wage and the mandatory minimum wage; and (4) retain all the tips she receives as a tipped employee. Furthermore, the United States Department of Labor has stated, “where the facts indicate that specific employees are routinely assigned to maintenance, or that tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.” Such situations are commonly referred to as “dual jobs.”

In the case of Ms. Knox and Ms. Bratcher, they alleged that they spent hours before, during, and after their shifts performing non-tipped work, including: being required to arrive at the restaurant approximately an hour before it opened to perform opening duties, which included placing chairs at tables, making tea, filling ice bins, preparing “sani” buckets, screwing nozzles into soda machines, and portioning ranch and blue cheese dressing. After their morning shifts ended, they claimed they were required to perform “out tasks,” including: restocking the ice bins, rolling silverware, washing food platters, restocking table caddies, sweeping the floors, portioning more ranch and blue cheese dressings, cleaning trash cans, and sifting through trash bins to locate any silverware which may have been thrown away during the prior shift. When they worked the evening shifts, they were required to stay at the restaurant to perform closing duties such as: wiping down tables, removing nozzles from soda machines, placing chairs on top of tables, sweeping, vacuuming, mopping and deck scrubbing the floors, cleaning the tea urns, washing food platters, bowls, and silverware, rolling the clean silverware, dumping the trash, cleaning trash cans, and checking for accidentally disposed of silverware. During their shifts, they were required to perform additional work between the times they were serving customers, including: washing dirty silverware and food platters, refilling “sani” buckets, brewing iced tea, emptying the trash, dusting restaurant ledges, cleaning windows, booths, soda machines, ice bins, table caddies, table and chair legs, the wall separating the dining room from the bar area, and the televisions. Ms. Knox and Ms. Bratcher claim that they spent 50% of their time as servers, and 35–40% of their time as bartenders, performing this non-tipped work.

After Buffalo Wild Wings filed a motion to dismiss the claims, the District Court in Indianapolis ruled the employees’ allegations were sufficient to state a claim under the FLSA. In so doing, the Court rejected the restaurant’s claims that separately tracking the hours spent performing tipped work versus non-tipped work would create an unworkable system that would place a “monstrous” burden on the restaurant industry.

Ms. Knox and Ms. Bratcher also claimed they were required to reimburse the restaurant out of their tips for register shortages when working as bartenders and for bills that went unpaid when customers left the restaurant without paying for their meals. As noted above, in order for a tip credit arrangement to be lawful, the employee must be allowed to retain all tips received as a tipped employee. The Court rejected Buffalo Wild Wings’ argument that the employees’ claims should be dismissed because they did not identify the specific date(s) of the alleged deductions from their tips, finding instead that Ms. Knox and Ms. Bratcher had provided sufficient detail in their complaint to allow those claims to proceed.