274 F. Supp. 3d 706
N.D. Ohio2017Background
- Plaintiffs Lindsey Harrison and Angela Zabor worked as servers at a Rockne’s restaurant and brought a collective FLSA action alleging improper tip-credit practices.
- Count One: Rockne’s failed to notify them it would take a tip credit under 29 U.S.C. § 203(m), so plaintiffs seek full minimum wage for their employment periods.
- Count Two: Plaintiffs allege Rockne’s required them to perform substantial non-tipped work — both unrelated duties (e.g., trash, mopping, restroom cleaning) and related preparatory/closing duties (e.g., setting/wiping tables, brewing coffee) — exceeding 20% of work time.
- Defendants moved to dismiss, arguing plaintiffs failed to allege they earned less than minimum wage in any particular workweek and failed to plead dual-job or >20% non-tipped duty claims sufficiently.
- The magistrate judge considered FLSA statutory/regulatory text, DOL opinion letters and the Field Operations Handbook (FOH), circuit decisions on the FOH’s 20% guidance, and the pleading standards from Twombly and Iqbal.
- Court denied the motion to dismiss, finding plaintiffs pleaded plausible FLSA claims for both failure-to-notify tip-credit and for dual-job/20% violations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether complaint must allege a particular workweek in which wages fell below minimum | Harrison/Zabor contend they need only plead they were not properly compensated due to lack of tip-credit notice | Rockne’s contends plaintiffs must identify a particular workweek showing wages below minimum | Court: Not required at pleading stage; plaintiffs stated a plausible FLSA claim without alleging a specific underpaid workweek. |
| 2. Whether employer’s failure to notify of tip credit invalidates tip-credit defense | Plaintiffs say lack of notice under §203(m) entitles them to full minimum wage | Rockne’s contends notice requirement not adequately pleaded or proven at this stage | Court: Complaint sufficiently alleges failure to inform and survives dismissal. |
| 3. Whether plaintiffs pleaded dual jobs (unrelated non‑tipped duties) | Plaintiffs allege they performed unrelated maintenance tasks (trash, mopping, cleaning restrooms) — i.e., separate non‑tipped occupations | Rockne’s says allegations are insufficient to show distinct non‑tipped occupation or de minimis duties | Court: Allegations describe duties outside immediate tipped tasks and are sufficient to plausibly allege dual jobs. |
| 4. Whether plaintiffs pleaded that related non‑tipped duties exceeded the FOH 20% threshold | Plaintiffs allege related preparatory/closing duties collectively exceeded 20% of weekly hours | Rockne’s says FOH’s 20% rule is not controlling and plaintiffs failed to plead time allocations | Court: On the pleadings, allegations that related duties exceeded 20% are plausible; claim survives dismissal. |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must state plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for complaints)
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretation of its own regulations)
- Myers v. Copper Cellar Corp., 192 F.3d 546 (6th Cir.) (plaintiff must prove by preponderance they performed uncompensated work under FLSA)
- Fast v. Applebee’s Int’l, Inc., 638 F.3d 872 (8th Cir.) (discusses FOH 20% guidance re: related duties)
- Schaefer v. Walker Bros. Enters., Inc., 829 F.3d 551 (7th Cir.) (applies FOH 20% standard)
- Romero v. Top-Tier Colo. LLC, 849 F.3d 1281 (10th Cir.) (discusses DOL guidance and remands)
- Pellón v. Bus. Representation Int’l, Inc., [citation="291 F. App'x 310"] (11th Cir.) (declines to apply 20% rule where allocation of time among tasks infeasible)
- Roberts v. Apple Sauce, Inc., 945 F. Supp. 2d 995 (N.D. Ind.) (dismissal where plaintiff failed to plead >20% unrelated/non‑tipped duties)