Servers at Smokey Bones Bar & Fire Grill claim that the restaurant chain has engaged in tip credit violations and wage theft, according to a lawsuit filed in South Carolina federal court.
The lawsuit alleges that Smokey Bones, while taking advantage of the FLSA’s tip credit provision, required waitstaff to perform non-tipped side work that was not related to their tipped occupations as servers and bartenders, as well as required them to spend more than twenty percent of their shifts performing non-tipped side work that was related to their tipped occupations. The servers allege that they were required to pay the restaurants out of their tips when a customer walked out, were required to purchase additional Smokey Bones t-shirts with their tips, and were never notified that Smokey Bones was paying them less than minimum wage pursuant to the FLSA’s tip-credit provision. The waitstaff also allege that all three of those requirements violate the tip-credit provision.
In a May 31 decision, a South Carolina federal court ruled that conditional certification of a nationwide class of servers and bartenders was warranted. The court held that the waitstaff produced evidence of nationwide Smokey Bones job descriptions for servers and bartenders that on their face require side work. While the court ruled, there is no doubt that requiring side work does not necessarily violate the FLSA, the waitstaff made a sufficient showing that Smokey Bones’ nationwide side work policy potentially caused FLSA violations for all Smokey Bones servers and bartenders. The waitstaff and the other opt-ins’ declarations stated that at least three Smokey Bones locations in three different states all implemented the side work discussed in the server and bartender descriptions in such a way as to require violations of the dual-jobs regulation and/or the FOH’s twenty-percent rule.
Smokey Bones has 67 locations along the East in 16 states including Pennsylvania, New York, North Carolina, South Carolina, Florida, Massachusetts, Rhode Island, Maryland, Illinois, Kentucky, Indiana, Tennessee, Michigan, Georgia, Ohio, and Virginia.
Ruby Tuesday’s Times Square location was sued for wage theft by a former bartender, Amanda Zarfos, who alleges that the restaurant failed to pay tipped employees for all hours worked and violated the so called 80/20 rule.
The lawsuit, filed in New York federal court, claims that during her employment at Ruby Tuesdays, servers and bartenders at Ruby Tuesday were improperly paid at the tipped minimum wage rate for all hours worked even though they spent more than 20 percent of her shifts performing work that involved no customer interaction and did not generate tips. For example, Zarfos was required to brew beverages, cut lemons, bake bread, help pack to-go orders, and wipe wood. According to the Department of Labor’s Field Operations Handbook,
The FLSA permits the employer to take a tip credit for time spent in duties related to the tipped occupation of an employee, even though such duties, are not by themselves directed toward producing tips, provided such related duties are incidental to the regular duties of the tipped employees and are generally assigned to the tipped employee. For example, duties related to the tipped occupation may include a server who does preparatory or closing activities, rolls silverware and fills salt and pepper shakers while the restaurant is open, cleans and sets tables, makes coffee, and occasionally washes dishes or glasses. However, where the facts indicate that tipped employees spend a substantial amount of time (in excess of 20 percent of the hours worked in the tipped occupation in the workweek) performing such related duties, no tip credit may be taken for the time spent in those duties. All related duties count toward the 20 percent tolerance.
Similarly, the New York Labor law has an analogous prohibition covering non-tipped work exceeding 20 percent of a shift.
Attorneys for the restaurant workers also claim that tipped employees were required to work off-the-clock without pay. The lawsuit claims that employees were not allowed to clock in despite the restaurant knowing and expecting them to start working. Willful refusal to pay employees wages for off-the-clock work is a violation of the Fair Labor Standards Act and the New York Labor Law.
A manager at the highest grossing 7-Eleven store in the United States won $199,500 in a wage theft lawsuit against 7-Eleven. Muhammad Anwar, the manager at the 7-Eleven in Montauk, New York, alleged 7-Eleven cheated him out of minimum wages, overtime pay, and spread-of-hours pay.
Anwar alleged that 7-Eleven steadily increased his hours and required him to work seven days a week for 18 months straight. Although the start and end time for Anwar’s shifts varied on a week-by-week basis, he claimed that throughout those 18 months, he always worked at least 80 hours per week without an uninterrupted break each day. 7-Eleven adjusted Anwar’s hours worked at the end of each week, paying him for far fewer hours than he actually worked. In one example of time shaving, Anwar claimed that 7-Eleven paid him for six hours’ worth of work, despite working 80 hours during that week.
In late June of 2013, the FBI raided fourteen 7-Elevens across Long Island and Virginia for requiring their employees to work more than 100 hours per week and only paying them for a fraction of that time. Anwar claims that after these raids, the Montauk 7-Eleven reduced his hourly wages from $25.00 to $16.00, started paying him overtime, and substantially reduced his weekly hours.
7-Eleven has been hit with several wage theft lawsuits recently, alleging that their stores fail to pay workers overtime pay.
Eleven restaurant workers at Kum Gang San restaurant in Flushing who were cheated out of their overtime, minimum wage and spread of hours pay, obtained a Decision from a New York federal court judge that they are owed $2.67 million.
The wage theft lawsuit by eight waiters, two bussers, and one kitchen worker claimed that workers were not paid required overtime and minimum wage under the Fair Labor Standards Act and the New York Labor Law, they were denied spread of hours compensation, and that the restaurant unlawfully shared in their tips and required front of the house workers to share their tips with kitchen workers. The decision by Magistrate Judge Michael Dolinger noted that the restaurant paid employees “grossly substandard wages” and diverted their tip income and “made sure to deny the workers any information that would disclose the violation of their rights.”