790 F. Supp. 2d 803
N.D. Ill.2011Background
- Dominguez and Holdren, former servers at Quigley’s Irish Pub, allege FLSA, Portal-to-Portal Act, and IMWL violations for unpaid minimum wages and overtime.
- Pub time records were routinely altered by managers to reflect scheduled times rather than actual hours worked; Dominguez’s records were changed 163 times prior to April 2008.
- Servers were paid by the minute and time data were derived from a POS system; both plaintiffs clocked in/out and asserted they worked when clocked in, despite altered records.
- A walk-out reimbursement policy required servers to reimburse the pub for customer walk-outs; plaintiffs claim this policy affected tip retention and minimum wage calculations.
- Owners Quigley and Michael controlled day-to-day operations, including payroll and time records, and were found to have supervisory authority; plaintiffs seek individual liability in addition to the entity.
- The court grants partial summary judgment for plaintiffs on uncontested overtime for two pay periods and for individual liability of the owners, but denies other claims and several notice-related issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Owed overtime for two periods | Dominguez entitled to 4.16 overtime hours for two periods | Errors were inadvertent bookkeeping mistakes; no FLSA violation | Plaintiffs prevail on uncontested overtime for two periods |
| Off-the-clock work and record manipulation | Altered records hid unpaid hours; damages due | Not all hours worked were unpaid; records show payments | Genuine issues of material fact remain; summary judgment denied on this theory |
| Tip credit entitlement | Pub may have violated notice and retention requirements; no valid tip credit | Tip credit valid if proper notice and tip retention exist | Issue for notice denied; disputes remain; tip credit not established as a matter of law |
| Walk-out reimbursement and tip retention | Walk-out policy undermines tip retention and tip credit | Policy did not require tip reduction; evidence uncertain | Genuine disputes as to whether servers retained all tips; not resolved on summary judgment |
| Defendants' and owners' individual FLSA liability | Owners exercised control and can be liable personally | Not separately liable beyond Pub | Owners Quigley and Michael personally liable; summary judgment granted for individual liability |
Key Cases Cited
- Mt. Clemens Pottery Co. v. United States, 328 U.S. 680 (Supreme Court, 1946) (inaccurate records permit approximate damages with shifting burden to employer)
- Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987) (supervisory liability under the FLSA for those with control over employees)
- Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294 (6th Cir. 1998) (notice and retention prerequisites for tip credit under § 203(m))
- Withrow v. Larkin, 421 U.S. 35 (Supreme Court, 1975) (circumstantial evidence can support trialworthy issues; civil rights but cited for evidentiary principle)
- Barcellona v. Tiffany English Pub, Inc., 597 F.2d 464 (5th Cir. 1979) (tip credit prerequisites involve notice and tip retention by employee)
- O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567 (6th Cir. 2009) (employee proof of hours worked can be based on employee recollection)