18th Annual Workplace Class Action Report - 2022 Edition

302 Annual Workplace Class Action Litigation Report: 2022 Edition and the portion of their tips paid out through the tip pool that was included in their paychecks. Id. at *9. The Court pointed out that paystubs and other documents that merely provide an employee with notice of their compensation – i.e. , their specific hourly wage "plus tips" – cannot satisfy § 203(m)’s notice requirement as a matter of law. As to the overtime claim, Defendant conceded that the overtime wages were incorrectly calculated. In sum, because there was no dispute of material fact regarding the failure to pay minimum wages or overtime, the Court held that partial summary judgment as to liability was warranted on both counts. Furthermore, because Defendant failed to satisfy its burden of putting forward any evidence that could persuade the Court that the failure to obey the statute was both in good faith and predicated upon such reasonable grounds that it would be unfair to impose upon it more than a compensatory verdict, the Court also granted Plaintiffs’ request for liquidated damages. Rafferty, et al. v. Denny ’ s Inc., 2021 U.S. App. LEXIS 27680 (11th Cir. Sept. 15, 2021). Plaintiff, a restaurant worker, brought an action alleging that Defendant violated the FLSA’s dual-job prohibition by requiring her to spend much of her time performing untipped duties related to her tipped work and untipped duties that had nothing to do with her tipped work. As a result, Plaintiff asserted that Defendant paid her the sub-minimum hourly wage for time she worked on non-tip-producing tasks as well as in her tipped occupation. Plaintiff also claimed that Defendant violated the FLSA by failing to provide the FLSA-required notification to her of the tip rules. The District Court granted Defendant summary judgment on all counts. On Plaintiff’s appeal, the Eleventh Circuit affirmed in part and reversed in part the District Court’s judgment. First, the Eleventh Circuit agreed with Plaintiff that the U.S. Department of Labor’s interpretation of the FLSA dual-jobs regulation in its 2018 Opinion Letter was not entitled to deference because: (i) the dual-jobs regulation was genuinely ambiguous concerning the amount of time a "tipped employee" can spend doing untipped, but related duties and concerning what tasks constitute related duties; and (ii) the 2018 Opinion Letter was not a reasonable interpretation of the dual-jobs regulation. Id . Because the Eleventh Circuit concluded that the 2018 Opinion Letter was not entitled to deference, it considered the meaning of the dual-jobs regulation as it related to the non-tipped time and related- duties issues. In examining this issue, the Eleventh Circuit concluded that that the dividing line between related and unrelated duties falls where untipped duties no longer directly support tipped duties. Applying this reasoning to Plaintiff’s claim, the Eleventh Circuit held that the District Court erred in granting summary judgment in favor of Defendant on Plaintiff’s dual-job claims because there were genuine issues of material fact concerning Plaintiff’s non-tipped labor claims. Specifically, the Eleventh Circuit found that material issues of fact existed about whether Plaintiff engaged in work that did not directly support her tipped occupation while being paid as a tipped employee. For instance, among these tasks were wiping down microwave and stoves; washing and scrubbing walls; cleaning and scrubbing refrigerators, sinks, trays, and bins; and cleaning of the expediter line. The Eleventh Circuit determined that these duties plainly did not qualify as work that directly supported Plaintiff’s tip-producing work as a server. Hence, to the extent that a jury might find that she engaged in these tasks while Defendant took the tip credit for her hours, the Eleventh Circuit held that Plaintiff had identified a material issue of fact that precluded summary judgment. Additionally the Eleventh Circuit found that there was also a genuine issue of fact as to whether the she spent more than 20% of her time performing non-tipped, related duties while she was paid as a tipped employee. The Eleventh Circuit, however, agreed with the District Court that Defendant was entitled to summary judgment on Plaintiff’s FLSA notice claims pursuant to § 203(m)(2)(A) of the FLSA because the evidence established that Defendant told Plaintiff that the tip credit would not apply to any tipped employees unless the employee had been informed of the tip credit provisions. For these reasons, the Eleventh Circuit affirmed in part and reversed in part the judgment of the District Court. Rosell, et al. v. VSMB, 2021 U.S. Dist. LEXIS 116663 (S.D. Fla. June 22, 2021). Plaintiffs, a group of current and former restaurant employees, filed a class and collective action alleging that Defendant violated the minimum wage and overtime compensation requirements of the FLSA and the Florida Minimum Wage Act ("FMWA"). Following discovery, the parties filed cross-motions for summary judgment and the Court granted in part and denied in part Defendant’s motion and denied Plaintiffs’ motion. Defendant paid both hourly wages and shared portions of the automatic fee that was applied to all customers’ total sales price for food and beverages. Plaintiffs argued that their hourly wage of $5.65 per hour was below the minimum wage requirements under the FLSA and the FMWA and that the automatic fee they received should be construed as a tip and not considered toward any of Defendant’s wage obligations. Defendant contended that based on pay records, it demonstrated that Plaintiffs received a salary of approximately $12.98 per hour when the direct wage was combined with the