A proposed collective and class action alleges Dave & Buster’s has underpaid tipped employees as the result of taking an improper tip credit against their hourly wages.
The 21-page case alleges D&B and its management arm have failed to fulfill the strict requirements an employer must satisfy to be legally allowed to take advantage of the Fair Labor Standards Act’s tip credit provision, whereby tipped workers, such as servers and bartenders, are paid below the hourly minimum wage. The suit also contends Dave & Buster’s ran afoul of Arizona law by failing to comply with the state’s minimum wage requirements.
According to the complaint, the tip credit claimed by Dave & Buster’s was unlawful in that the restaurant chain failed to provide tipped workers with statutory notice concerning the amount of the cash wage they would receive, the amount by which their wages would be increased on account of the tip credit, that they would be entitled to retain all tips they receive except for those contributed to a valid tip pool, and that the tip credit would not apply to any employee who did not receive the notice.
The suit, filed by two former servers, further alleges D&B maintained a policy and practice whereby tipped employees were required to perform non-tipped side work, including cleaning the restaurant, refilling condiments, operating the dishwasher, and cleaning and rolling silverware, while a tip credit was claimed against their wages. According to the lawsuit, an employer cannot pay tipped workers below the minimum wage and require them to carry out non-tipped work that is unrelated to their tipped occupation or performed in excess of 20 percent of their weekly hours worked.
Per the case, some side work was required to be performed before the restaurant opened and after it closed, times during which the employees had no opportunity to earn tips. Despite being able to do so, Dave & Buster’s did not track or record the amount of time tipped employees spent performing non-tip-producing work, the lawsuit says, claiming the tasks took anywhere from 30 minutes to two hours. The case contends Dave & Buster’s servers were not paid the full hourly minimum wage for these duties, many of which are customarily assigned to back-of-the-house employees who typically receive at least the full hourly minimum wage.
Lastly, Dave & Buster’s is accused in the lawsuit of requiring tipped employees to buy certain work-related clothing, which also contributed to the reduction of their wages below the hourly minimum. The suit says the cost of work-related apparel was not reimbursed by the defendants.
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