Sarah M. Block
Tue, 09/19/2023
Brendan Harrington, a former bartender at District Winery in Washington, DC, filed suit on behalf of himself and similarly situated servers and bartenders against the restaurant, as well as its two founders and owners, for violations of the Fair Labor Standards Act (FLSA) and the District of Columbia Minimum Wage Act (DCMWA). Harrington alleges that Defendants failed to properly compensate workers by unlawfully taking at tip credit, meaning the Winery unlawfully paid bartenders and servers at the lower tipped hourly wage rate, because Defendants failed to comply with the legal requirements for taking a tip credit.
Specifically, Harrington alleges that Defendants violated the law by: (1) failing to provide appropriate notice and posting of their tip-sharing policies or other provisions of the DCMWA; (2) requiring tipped employees to contribute tips to a tip pool that included ineligible workers, such as winery tour guides and glass polishers; (3) requiring tipped employees to pay for credit card processing fees above the permitted deduction amount; and (4) requiring tipped employees to perform significant non-tipped duties, such as cleaning and setting tables and to perform work while the restaurant was closed to customers, for wages at the lower tipped rate even though these duties exceeded 20% of their workweek and were performed for continuous periods of more than 30 minutes.
Defendants sought to dismiss the complaint, arguing that Harrington failed to allege sufficient facts to set forth a cause of action under the FLSA or DCMWA. However, on August 29, 2023, the Court issued an Order denying the motion in part and granting the motion in part. In general, the Court held that although Harrington’s factual allegations were threadbare, they were sufficient to survive the motion and to demonstrate plausible claims for tip credit violations. With respect to the claims for which Harrington had not set forth sufficient facts—namely, whether the Court has jurisdiction over the individual founders/owners and whether Defendants unlawfully deducted credit card fees—the Court permitted Harrington leave to file an amended complaint within 45 days to add additional facts and clarify his claims. The Court also invited Harrington to file a renewed Motion for Conditional Certification of a Collective Action, which would allow notice of the lawsuit and opportunity to join to be sent to eligible servers and bartenders, following the filing of his amended complaint.
Unfortunately, tipped wage violations like those alleged by Harrington are all too common in the restaurant and service industries. Click here to read more about these widespread issues faced by tipped workers. And, if you are a tipped employee and have been required to share your tips with non-tipped workers (including supervisors or managers) or have otherwise not been paid in accordance with the law, contact MSE today through our website to schedule a free consultation with an experienced labor and employment attorney.
