Sometimes employers who hire tipped employees will hire them in “dual jobs”, as in jobs where the employees perform both tipped and non-tipped work. Non-tipped work would include things like cleaning the bathrooms, taking out the trash, polishing paneling, etc.
The Illinois division of Applebee’s, AppleIllinois LLC, which operates 34 Applebee’s Neighborhood Bar and Grill restaurants, recently lost in court in a class action claim against a class of current and former tipped employees. The employees (made up of servers, bartenders, and hostesses) alleged they regularly spent up to 20% of their time performing non-tipped work for which they were not paid minimum wage.
The lawsuit also alleges that the workers had to contribute 2.5% of sales per shift to a tip pool. This often exceeded 15% of total tips actually received.
AppleIllinois responded with a motion to decertify the class, which was rejected. Now the judge has officially ruled in favor of the workers for partial summary judgment.
U.S. District Judge Geraldine Brown declared that the “evidence demonstrates that AppleIllinois employees working at tip credit rates did those duties for much longer periods of time than can be fairly characterized as occasional, incidental or insignificant.”
Judge Brown also pointed out that AppleIllinois executives recognized that some tasks are clearly outside a tipped occupation. The duties which the tipped employees were performing fell under the category which the executives themselves agreed were non-tipped duties.
AppleIllinois feared that enforcing the dual job regulation would prohibit “a team-oriented approach to serving customers.” On the contrary, Judge Brown argues, it simply means that tipped employees get paid minimum wage when they are required to perform the work of minimum wage workers.
AppleIllinois has been ordered to compensate the class members for non-tipped work which they performed. Judge Brown ruled that the plaintiffs may establish damages at a future hearing.
The attorneys at the Chicago Overtime Law Center have decades of experience litigating wage and hour claims including overtime, meal breaks, vacation pay, and tips though out Illinois and the Chicago area including in Elgin. Our offices are conveniently located in Oak Brook Terrace and Chicago, Illinois. If you think your employer may have misclassified you as exempt, contact one of our Chicago or Oakbrook attorneys today at 312-869-4095 or fill out our online form today.