Food Servers Fighting Back, Undeterred By Court | Supreme Court ruling favors restaurants, but waiters ready for another legal round
Connecticut’s wait staff are fighting back — and banding together — to get paid for performing extra chores that divert them away from tipping patrons, a vital component of their income.
The fight is now a legal one, and a recent court ruling is making it an even tougher battle.
A case filed by a group of Friendly’s waiters hit a major hurdle when the Supreme Court ruled that the group could not appeal a lower court’s denial for class action status while their case winds through the court system.
The ruling may reach outside the restaurant industry because it makes it harder for employees to establish class-action certification.
Reduced Pay
The dispute between the food servers and restaurants hinges on the differences in the hourly wages paid to waiters and other non-wait staff. Restaurants are allowed to pay waiters below minimum wage levels, reducing wait staff pay by a 29.4 percent “tip credit,” which is based on the assumption that waiters are expected to earn much of their income from tips.
Food servers claim that their wallets take a hit when employers assign them tasks that don’t include waiting tables, such as brewing coffee, rolling napkins or cleaning restrooms.
For that reason, servers employed by T. G. I. Friday’s and Friendly’s want to be paid for the extra tasks they perform while on the job, so they have been working together to form class-action groups to fight restaurants.
But the recent Supreme Court decision hurts their efforts while helping businesses block employees from gaining the vitally important class-action position, said Daniel A. Schwartz, an attorney with the Pullman & Comley law firm in Hartford.
Another Chance
That doesn’t mean the waiters can’t ask again. They can, but only after their current trial is over, he said.
The impact of the Supreme Court ruling will make it much tougher — and more expensive — for employees to establish class-action status, Schwartz said, which means that employers are in a stronger position when it comes to deflecting class-action lawsuits in Connecticut courts.
“The decision makes it clear that class certification will be the battle in state court cases,” he said.
The advantage of class-action certification is very significant because it almost always forces the employer to settle, Schwartz explained.
Fighting a class-action lawsuit is simply too onerous for most companies to bear: “Cases are won or lost on the class-certification level.”
With no class-action status, the waiters have lost important clout, and although they can conduct the case as individuals, it would be very expensive in contrast to the expenses shared by multiple plaintiffs, Schwartz said.
Wide Reach
William Saturley of Boston’s Nelson, Kinder, Mosseau and Saturley, defense counsel for Friendly’s, said this case will likely have an impact on the other restaurant lawsuits.
“We’re the first case that actually moved through this appeal stage,” he said. “There is some significance in this in that it’s already poised to influence [other lawsuits].”
This case touches on an essential issue for restaurants, Saturley said: “Any restaurant that has elected to pay its servers the discounted tip credit rate probably has this question hanging over it.”
Employers like Friendly’s argue that it’s fair to expect waiters to brew the occasional pot of coffee or bus a table here and there, Saturley said, as it’s all aimed toward making service better, and probably increasing tips from customers.
Outside of court, the group is taking its case to the state Department of Labor to clarify state regulations on how wait staff wages are determined.
Clarify Rules
Simon Flynn, president of the Connecticut Restaurant Group, an industry-advocacy organization, said that the restaurant group is talking with the DOL about clarifying the rules concerning what servers’ duties are.
Restaurants are trying to make their operations as efficient as possible, but they also want to follow the letter of the law, Flynn said.
Full Pay Requested
Daniel Blinn of the Consumer Law Group in Rocky Hill and attorney for the Friendly’s waiters, said Connecticut statute requires restaurants to strictly separate table-serving work from all other duties.
According to court documents, the wait staff at Friendly’s was required to “clean restrooms, wash dishes, pick up cigarette butts from the parking lot, go to the bank, and perform additional miscellaneous cleaning duties,” in addition to other chores.
Sometimes the waiters were paid minimum wage for this kind of work, but Blinn says that it didn’t always happen.
The waiters are arguing that because they were required to do other kinds of work, they should get full minimum wage for all the hours they put in.
Restaurants are required to segregate that work, Blinn said, “If they can’t, or won’t, they shouldn’t take the tip credit.”
WBJ Web Partners
Most Recent
Most Recent
0 Comments