Tipped restaurant employees, such as waitresses and servers, are commonly subject to violations of the FLSA as a result of being required to perform non-tipped work. The below is a case description of a recent case, not handled by this firm, granting conditional certification of tipped employees who were required to perform non-tipped work.
Illinois Tipped Restaurant Servers Granted Conditional Certification
Curless v. Great Am. Real Food Fast, Inc., 280 F.R.D. 429 (S.D. Ill. 2012) is a case decided by the United States District Court for the Southern District of Illinois, located in East St. Louis, Illinois. In Curless, tipped employees brought action against a restaurant group alleging violations of Fair Labor Standards Act (FLSA) and Illinois Minimum Wage Law (IMWL). The employees sought conditional class certification under the FLSA of a collective class action of similarly situated tipped employees who worked for the group's restaurants over the past three years.
Plaintiffs and those similarly situated worked as tipped employee and servers for a group of restaurants. Plaintiffs alleged that Great American (the employer) violated the FLSA by paying Curless tipped-employee minimum wage without complying with the requirements of the FLSA by having the employees perform non-tipped work without proper compensation. 29 U.S.C. § 203(m).
Plaintiffs' basis for collective certification was based upon the common job duties and the common pay practices of the employer in violation of the FLSA. The affidavits from opt-in Plaintiffs from each Illinois restaurant and one Ohio restaurant indicated the same pay practices related to non-tipped work duties. The employer argued that there was not sufficient evidence of a uniform pay practice that violated the FLSA.
The court noted that the plaintiffs at the conditional certification states only need to show that there are "similarly situated employees who are potential claimants." Smallwood, 710 F.Supp.2d at 750. The court reviewed the declarations and determined that there was substantial similarity in the extra work that was required to be performed that was non-tipped work. The court certified a collective action of Illinois restaurant employees of the employer.
Wage and Hour Lawyers
The Law Offices of Kevin J. Dolley represents restaurant employees nationwide in unpaid wage, minimum wage and overtime claims under the FLSA and state wage and hour laws. Mr. Dolley can be reached directly at (314)645-4100 or by email at firstname.lastname@example.org.