Frequently restaurant servers are required to spend a large percentage of their time performing side work instead of waiting on customers. Examples of side work tasks include: rolling silverware; washing dishes, cooking and preparing food, taking used dishes from the dining room to the back of the restaurant, bringing clean dishes from the back of the restaurant to the dining room, cutting fruit, restocking condiments, and cleaning the restaurant.
Federal courts have regularly held that when a server spends more than 20% of his/her time performing these tasks, they should be paid the full minimum wage of $7.25/hr. for this time and not the “tipped minimum wage” of $2.13/hr. (or $2.83/hr. in Pennsylvania). Often restaurants will argue that even if a server spends more than 20% of their time performing impermissible side work, their unpaid wages are limited to the tip credit (or the difference between $7.25/hr. and the tipped minimum wage) for those hours above the 20% threshold. However, three Pennsylvania district courts have recently held otherwise and indicated that a server must be paid the full minimum wage for all time that they spend performing such side work:
Belt v. P.F. Chang’s China Bistro, Inc., 401 F. Supp. 3d 512, 538 (E.D. Pa. 2019) (“When, however, that employee spends more than twenty percent of his or her time performing untipped related work, they are no longer a tipped employee during any of the time they spend performing untipped related work. In essence, they become a dual jobs employee, and the employer is no longer permitted to take the tip credit for any of the hours the employee spends performing untipped related work.”) (emphasis supplied);
Reynolds v. Chesapeake & Del. Brewing Holdings, LLC, 2020 U.S. Dist. LEXIS 83633, at *9 (E.D. Pa. May 12, 2020) (“Therefore, to the extent that [Plaintiff] spent more than 20% of her time performing untipped side work in a workweek, Defendants were not entitled to take a tip credit for any of the hours [Plaintiff] spent performing side work.”) (emphasis supplied);
Williams v. Bob Evans Rests., LLC, 2020 U.S. Dist. LEXIS 145852, at *33-34 (W.D. Pa. Aug. 13, 2020) (“In analyzing the temporal language in the Dual Jobs Regulation and noting that the DOL uses a 20% threshold in other similar FLSA contexts, the Court concludes, in concurrence with its sister courts, that an employee who spends more than twenty percent of their hours performing non-tipped, related work, can be found to have ceased to be a tipped employee and become a dual-jobs employee such that they must be paid full minimum wage for hours spent performing those duties.”) (emphasis supplied).
If you, a friend, or a family member have worked as a server and would like a free and confidential consultation, give us a call at 215-866-1551. One of our attorneys would be happy to speak with you.