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.
The lawsuit covers all Bob Evans restaurants in Kentucky, Indiana, and Tennessee that were part of Bob Evans’ Region 2, Area 6. This includes the stores in Lexington, Louisville, Elizabethtown, Nicholasville, and Somerset, Kentucky, Clarksville and New Albany, Indiana, and Nashville, Tennessee. Depending on the specific claim and state where it occurred, the claims may go back between two and five years before the lawsuit was filed.
If the employees prove their allegations, the Court can award damages which may include the difference between the wages owed under the law and what was actually paid, enhanced damages of a multiple of the actual wages owed, and attorneys’ fees.
The lawsuit is filed as both a collective action under federal law and a class action under Kentucky and Indiana law. While the Court must ultimately decide whether to certify the claims as a collective or class action, in order to participate in an FLSA collective action, each employee must opt-in to the lawsuit by signing and filing a consent form.
If you worked at Bob Evans in the last five years, you may call us at 859-254-9351 or contact us via our website here for a free, confidential consultation about whether you are eligible to join this lawsuit.
The lawsuit was filed in the Southern District of Ohio, because that is where Bob Evans Restaurants, LLC is headquartered. A copy of the complaint is available here. The lawsuit is Mitchell, et al. v. Bob Evans Restaurants, LLC, Civil Action No. 2:22-cv-2123 (U.S. District Court for the Southern District of Ohio).
Garmer & Prather, PLLC, practices in the areas of serious personal injury, wrongful death, medical malpractice, products liability, and employee rights, including wage and hour litigation. We are trial lawyers. We are always happy to talk to employees of other restaurants or businesses who believe they have been mistreated to determine whether they may have a claim against their own employer.