A proposed collective action alleges the operators of Coconut Joe’s in Isle of Palms, South Carolina have paid workers less than minimum wage as the result of illegal tip pooling and unlawfully fired a server who left work after experiencing COVID-19 symptoms.
The plaintiff in the case says he worked at Coconut Joe’s in various positions, but primarily as a server, between July 2016 and May 2020. At the end of each shift, servers were required under restaurant policy to contribute three percent of their tips into a mandatory tip pool to be split between bartenders, hosts and expeditors (“expos”), who would each receive one percent of food and beverage sales, according to the suit.
The complaint alleges, however, that expos did not “customarily and regularly” receive tips given they worked entirely in the kitchen and had no regular contact with customers. Therefore, under the Fair Labor Standards Act (FLSA), the defendants’ requirement that servers share their tips with customarily non-tipped workers disqualified Coconut Joe’s from being permitted to apply to servers’ wages a tip credit that would reduce their pay below the minimum hourly rate, the plaintiff argues.
“Defendants were not entitled to reduce the minimum wage by applying the tip credit allowance that is available under 29 U.S.C § 203 (m) because Defendants enforced an illegal tip pool,” the complaint claims.
According to the suit, Coconut Joe’s was forced to temporarily close on March 18, 2020 due to South Carolina Governor Henry McMaster’s executive order requiring all restaurants to cease dine-in services in response to the COVID-19 pandemic.
On April 23, the case says, the plaintiff received a text from the restaurant’s manager, who is named as a defendant in the suit, inviting him to work 10 hours of maintenance per week for $18.00 per hour. Per the suit, it was stressed to the plaintiff that if he refused to accept the “offer,” Coconut Joe’s could not guarantee he would be brought back when the restaurant reopened.
The case says the plaintiff “needed his job so he returned to work,” performing maintenance tasks such as scrubbing garbage cans and deep cleaning the restaurant. According to the lawsuit, the plaintiff was never provided with a paycheck for the week of May 4, 2020 despite the defendants’ insistence that it had been mailed to him.
Coconut Joe’s reopened on May 4, 2020, the lawsuit says, with the plaintiff being asked to work as a fry cook despite spending almost all of his time prior as server. The plaintiff says that during his shift on May 12, he “started to have difficulty breathing” and informed his manager that he wasn’t feeling well. The manager allegedly told the plaintiff to speak with the defendant manager, the restaurant owner’s daughter, who instructed the plaintiff to “get back in the kitchen or he could find another job.”
Fearing for his health and that of his coworkers, the plaintiff returned to his manager, stating, “I feel like I can't catch my breath and I need to see my doctor.” When asked if he thought his symptoms could be related to COVID-19, he answered affirmatively and again requested to visit his doctor, the suit says. After the manager instructed him to “[j]ust be sure you get a note,” the plaintiff clarified that he was not quitting his job and did not have “any intentions of quitting,” per the complaint.
The case claims that after the plaintiff left, the defendant manager sent him a text message stating, “Since you left without permission, we will take that as you quitting your job here at Coconut Joe’s.”
According to the suit, the plaintiff was diagnosed with a panic attack and sent a picture of the doctor’s note to the restaurant owner, who is also named as a defendant in the complaint. The plaintiff says he sent several text messages insisting to both individual defendants that he only left to seek medical treatment. Although the restaurant owner informed the plaintiff that he “would discuss it with him tomorrow,” the plaintiff says he never heard from the defendants after over a month of attempting to get his job back.
Per the complaint, Coconut Joe’s was sold in June 2020, with the former owner’s daughter continuing to hold a managerial position.
The lawsuit alleges that by terminating the plaintiff, the defendants violated the Families First Coronavirus Response Act, which guarantees paid sick time to employees who are unable to work due to COVID-19 symptoms and seek a medical diagnosis, as well as the FLSA’s anti-retaliation rule, which prohibits employers from retaliating against employees who engage in protected activities.
“The Defendants engaged in retaliatory conduct by terminating Plaintiff, even in the face of a perceived risk to the public health,” the suit alleges.
The plaintiff looks to represent all current and former servers who worked for the defendants “during the statutory period,” were not paid the federal minimum wage of $7.25 per hour, and were required to contribute a portion of their tips into a mandatory tip pool.
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