McLamb v. Hospitality
197 F. Supp. 3d 656
D. Del.2016Background
- Plaintiff Wendy McLamb worked ~18 months as a server/bartender for High 5 Hospitality and was paid a $2.25/hour tip-credit cash wage.
- She alleges she regularly performed non‑tipped tasks both unrelated to tipped duties (e.g., sweeping parking lot, dusting TVs, rolling silverware, opening/closing) and related but untipped tasks.
- McLamb alleges (1) a "dual jobs" claim (tasks so removed they constitute a separate non‑tipped occupation), (2) a "substantial work" claim (performed related untipped work >20% of a workweek), and (3) a Failure‑to‑Inform claim (employer did not notify employees of FLSA tip‑credit requirements).
- High 5 moved to dismiss under Rule 12(b)(6), arguing McLamb failed to plead under a week‑by‑week minimum‑wage analysis, failed to plausibly allege dual jobs, and that the >20% FOH standard is nonbinding.
- The court denied dismissal as to the dual‑jobs and substantial‑work claims (found pleadings plausible and FOH interpretation entitled to deference) but granted dismissal of the Failure‑to‑Inform claim after the employer produced a signed notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Viability of dual‑jobs claim | McLamb alleges tasks were so removed they constituted a separate non‑tipped occupation | High 5: tasks are "side work" related to server job; insufficient to plead separate occupation | Dual‑jobs claim plausible at pleading stage; may proceed |
| Viability of >20% "substantial work" claim | McLamb alleges she spent 25–40% of time on related untipped work, so tip credit is inapplicable for that time | High 5: the FOH 20% threshold is nonbinding and inconsistently applied; claim fails | Claim plausible; court defers to FOH interpretation and allows claim to proceed |
| Whether plaintiff must plead an overall weekly minimum‑wage shortfall (workweek analysis) | McLamb: need not plead week‑by‑week shortfall at pleading stage; fact questions belong at summary judgment | High 5: plaintiff must allege she was underpaid on a workweek basis (total pay/hours) | Court rejects strict workweek‑only pleading requirement; not required at pleading stage |
| Failure‑to‑Inform claim | McLamb: employer failed to notify employees of tip‑credit rules | High 5: produced signed notice showing compliance | Claim dismissed because McLamb does not dispute the signed notice |
Key Cases Cited
- Phillips v. County of Allegheny, 615 F.3d 224 (3d Cir.) (standard for pleading and construing complaint)
- Seheuer v. Rhodes, 416 U.S. 232 (U.S.) (plaintiff entitled to offer evidence; not final merits decision at pleading stage)
- Bistrian v. Levi, 696 F.3d 352 (3d Cir.) (plausibility standard discussion)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S.) (pleading must be plausible)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S.) (context‑specific plausibility standard)
- Driver v. AppleIllinois, 739 F.3d 1073 (7th Cir.) (denying summary judgment on dual‑jobs claim; tasks may be separate occupation)
- Fast v. Applebee's Int'l, Inc., 638 F.3d 872 (8th Cir.) (found §531.56(e) ambiguous and upheld DOL FOH 20% interpretation)
- Christensen v. Harris Cty., 529 U.S. 576 (U.S.) (statutory interpretation limits)
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (U.S.) (deference principles to agency interpretations discussed)
- AT&T Corp. v. Core Communications, Inc., 806 F.3d 715 (3d Cir.) (agency interpretation/deference framework)