A lawsuit against Wheatfield’s Eatery and Bakery, a restaurant with three locations in Omaha, Nebraska, has been given the go-ahead to move forward as a collective action under the Fair Labor Standards Act (“FLSA”).
Magistrate Judge Thomas Thalken’s Findings and Recommendation noted that the Complaint contended that the restaurant utilized a compensation scheme that regularly required employees to work without compensation, that the waitstaff was not compensated for work they performed during their break period due to the restaurant’s shaving of hours, and that the restaurant’s policy required waitstaff to share their gratuities with employees who are not customarily tipped and to pay administrative costs out of their earnings.
The Court found that evidence was presented which established a colorable basis that the putative collective action members are the victims of a single decision, policy, or plan:
Based on the pleadings and evidence before the court, there appears to be a common policy or practice existing at all three locations with regard to the compensation of waitstaff. The policies or practices in issue may require the waitstaff employees to perform uncompensated work when they do not take a break. There exist meaningful identifiable facts and a legal nexus binding the claims of the proposed collective action members. The proposed members are subject to a common payment system, work at one of three locations owned by the same company, and are required to share gratuities and pay administrative costs out of their earnings in the same ways.
Judge Thalken’s Findings and Recommendations were approved by United States District Judge John M. Gerrard on February 16, 2012. In accordance with the court’s decision, Notices of Lawsuit will be mailed to all waiters employed by Wheatfields from August 2, 2008 to present.
Louis Pechman, founder of waiterpay.com, is co-counsel for the workers in this case, along with Kelly Brandon, an attorney with Dyer Law in Omaha, Nebraska.