Restaurant Employees Obtain Conditional Class Certification in Tip Pooling Case

In a tip pooling lawsuit filed against a restaurant called Mo's Steakhouse in Houston, Texas, the Honorable Lee H, Rosenthal (Judge in the United States District Court for the Southern District of Texas, Houston Division) granting the motion of the plaintiff restaurant employees for conditional certification pursuant to the Fair Labor Standards Act. Pursuant to the Judge's Order, the restaurant must disclose to the servers' attorneys the names, contact information, and dates of employment of all current and former servers at the restaurant from April 6, 2008 to the present by June 22, 2012. Also under the order, the parties must submit a proposed notice to be sent to all of the potential class members in this suit.

This lawsuit, initially brought by three servers employed at the restaurant, alleges that the restaurant required servers to participate in mandatory tip pool that included employees that do not regularly and customarily receive tips. This type of tip pooling arrangement is unlawful and invalidates any tip credit taken by the employer. Put differently, any tips paid by customers to the servers are disregarded for purposes of determining whether the servers were paid minimum wage. If the servers can prove their allegations, the restaurant would have to pay the servers the difference between the guaranteed cash wage they were paid and the federal minimum wage. In addition, the servers could possibly recover liquidated damages (which doubles the amount of unpaid wages), attorneys' fees, and court costs.

The plaintiff-servers also allege that the restaurant failed pay servers for all hours actually worked, failed to pay servers overtime for hours worked in excess of 40 hours per week, and required servers to use tips to pay for broken glasses and "walked tabs." Now that conditional class certification has been granted, current and former servers at the restaurant will have 90 days from the Court's approval of the notice form to opt-in and join the class.

If you are a tipped employee of a restaurant or other type of service establishment, and you are required to share tips with other employees who do not regularly and customarily receive tips (such as back of the house employees or managers), you may be entitled to additional pay under the law. If you wish to assert a claim or want to better understand your rights to fair pay, you should contact a Missouri wage and hour lawyer.