Fair Labor Standards Act Lawsuit Filed Against Hickory Tavern.
Lewis & Roberts has filed a Federal Fair Labor Standards Act (FLSA) lawsuit in the Middle District of North Carolina against Hickory Tavern on behalf of all its tipped server employees. Charlotte based Hickory Tavern operates at least 23 restaurant locations in North Carolina, South Carolina, Alabama and Tennessee. Our partner Jim Roberts, represented a former server at Hickory Tavern who alleges that Hickory Tavern paid her unfair wages in violation of the FLSA. The former server brings the action against Hickory Tavern for herself and all other similarly situated employees at each of Hickory Tavern's 23 locations. The lawsuit alleges that at least 250 servers may be affected by Hickory Tavern's FLSA violations. The lawsuit was filed under the FLSA as a collective action on behalf of all tipped server employees that have worked for Hickory Tavern during the past three years. A copy of the our most recent Amended Complaint is linked below.
The lawsuit is based on the FLSA's requirement that servers cannot be forced to do an excessive amount of non-tip generating work without being paid a minimum wage of $7.25 per hour. Hickory Tavern pays its servers only $2.13 per hour. Although the FLSA allows a server to make up the difference between $2.13 and $7.25 in tips (called a "tip credit"), servers cannot be forced to perform more than 20% of their workweek doing tasks that are not tip generating work. The lawsuit alleges that Hickory Tavern routinely required its servers to do work such as cleaning, restocking, kitchen duties, emptying trash - and other tasks that do not generate tips - well in excess of 20% of their time at work. Servers call these non-tip generating duties "sidework." Federal law requires Hickory Tavern to pay its servers minimum wage when sidework exceeds 20% of the servers' total time at work. The difference between $2.13 and $7.25 per hour is a savings of $5.12 per hour - for each hour worked, by each server, at each restaurant, that is in excess of the 20% rule. The FLSA allows servers who are not properly paid minimum wage to recover unpaid wages for the past two years. The FLSA also allows a double recovery of those wages when the employer knows it pays employees in violation of Federal law. The FLSA further allows employees to recover attorney fees and expenses in bringing a lawsuit to recover unpaid wages.
Hickory Tavern Claims Supported by United States Supreme Court
In a similar case filed against Applebee's restaurants on behalf of 1000s of tipped servers, the Federal Eighth Circuit Court of Appeals held that servers must be paid minimum wage when they spend more than 20% of their time doing sidework. Although Applebee's attempted to take the matter to the United States Supreme Court, the Supreme Court refused to hear the case - and the Eighth Circuit case was upheld. The current case against Hickory Tavern is based on similar theories of wage violations for sidework as was brought against Applebee's. The Applebee's decision is Fast v. Applebee's International. A copy of the Eighth Circuit opinion is linked below.
After the Applebee's case, the US Department of Labor's Wage and Hour Division issued Fact Sheet #15 "Tipped Employees Under the Fair Labor Standards Act" which specifically states that "where a tipped employee spends a substantial amount of time (in excess of 20 percent in the workweek) performing related duties [such as the sidework alleged in the Hickory Tavern Complaint], no tip credit may be taken for the time spent in such duties." In other words, when a server at Hickory Tavern spends more than 20% of their time doing sidework, they must be paid at least minimum wage. If they are not paid minimum wage for such work, then they are being underpaid by $5.12 per hour - and may be able to recover double those lost wages for the past two years. A copy of Fact Sheet #15 is linked below.