301 F.R.D. 368
E.D. Mo.2014Background
- Named Plaintiffs Thelma White and Nicole Can-oil were servers and bartenders for Hotshots.
- Plaintiffs filed suit on March 14, 2012 alleging FLSA, Missouri, and Illinois wage law violations based on tip-sharing with untipped employees.
- Fourth Amended Complaint (March 2013) asserted tip-pooling policy violated FLSA, MMWL, and IMWL by improper tip credits and misallocation of tips.
- Court conditionally certified a 57-member FLSA collective; parties moved for decertification and class certification of state-law claims; multiple motions were pending.
- Court’s discussion focused on whether a single uniform policy existed and whether plaintiffs were similarly situated for collective/class treatment.
- Final disposition decertified the FLSA collective and declined to certify Missouri/Illinois state-law class; named plaintiffs’ claims remain pending.
- Court also addressed whether Volmerts were “employers” under the FLSA and related statutes, granting plaintiffs’ liability summary judgment as to Julie Volmert and denying judgment as to Daniel Volmert
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the FLSA collective decertifiable for not showing similarly situated claims? | White/Can-oil contended a unified, unlawful tip-sharing policy affected all members. | Defendants argued policies varied by store and manager; no overarching policy. | Decertified the FLSA collective; no single uniform policy and no uniformly situated class. |
| Should Missouri and Illinois state-law wage claims be certified as a Rule 23 class? | Plaintiffs argued common questions predominate and a superior method for adjudication. | Policies varied widely; commonality and predominance not met. | Not certified; Rule 23 class action not appropriate given lack of commonality/predominance. |
| Are Julie and Daniel Volmert employers under the FLSA/MMWL/IMWL? | Volmerts, as founders/owners, exercised control over day-to-day ops and pay practices. | Argued limited involvement; not sufficiently controlling. | Both Julie and Daniel Volmert deemed employers; Julie granted summary judgment for liability; Daniel denied. |
| Does the record support the jury-triable issue of voluntariness of tip pooling? | Tip-sharing was mandatory, evidenced by handbook language, logs, and manager control. | Involves factual dispute; whether participation was voluntary is trial issue. | Issue of voluntariness of tip pooling survives to be determined by jury. |
Key Cases Cited
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (U.S. 1997) (predominance and superiority framework for class actions)
- Wirtz v. Pure Ice Co., 322 F.2d 259 (5th Cir. 1963) (economic realities test for employer status under FLSA)
- Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294 (6th Cir. 1998) (tip pool exemptions and voluntary nature under 29 C.F.R. 531.54)
- Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150 (11th Cir. 2008) (economic realities and employer liability under FLSA)