Articles Posted in Wage & Hour

On May 9, 2022, Garmer & Prather and its co-counsel filed a lawsuit on behalf of Bob Evans servers in federal court in Ohio alleging violations of the federal Fair Labor Standards Act, the Kentucky Wages and Hours Act, and the Indiana Minimum Wage Law. The case covers certain Bob Evan restaurants in Kentucky, Indiana, and Tennessee.

Under both state and federal law, restaurants may pay their servers less than the $7.25 per hour minimum wage assuming the server earns sufficient tips to make up the difference. But that exemption from the minimum wage requirement applies only to work that is part of their “tipped occupation,” and does not include time spent working on tasks such as preparing or cooking food, washing dishes, running carry-out orders, working as a host/hostess, cleaning bathrooms, training other employees, etc. On the other hand, employers can take advantage of the tip credit and pay servers less than minimum wage for certain work that directly supports the tip-producing work, for activities like rolling silverware, refilling condiments, setting tables and bussing them, and cleaning floors in the service area, but only if that work takes up a limited amount of time. While there are nuances to the law, in general the employer must pay the full minimum wage even for that “directly supporting” work if that work occupies more than 20% of the server’s total time, or any stretch of more than 30 consecutive minutes.

In the case filed this week, the servers allege that (1) Bob Evans required them to do non-tipped work without paying the minimum wage of at least $7.25 per hour, (2) even when the non-tipped work was directly supporting the tipped work, it frequently took up more than the 20% of work time allowed by law or lasted more than 30 consecutive minutes, and (3) in some instances, the restaurant’s on-site manager told employees to clock in at a pay rate well above minimum wage, but long after the shift was over, Bob Evans’ management would log in to the system and retroactively and reduce their rate of pay to $2.13 per hour.

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