United States District Court, W.D. New York
J. Nelson Thomas, Esq., Jared Kimball Cook, Esq., Michael J. Lingle, Esq., Thomas & Solomon LLP, Rochester, NY., for Plaintiffs.
Jeffrey Howard Ruzal, Esq., Kenneth John Kelly, Esq., Epstein, Becker & Green, P.C., New York, NY., for Defendants.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This is an action asserting claims under the Fair Labor Standards Act ("FLSA") and the minimum-wage statutes of the states of New York, Maryland, Missouri, Illinois and Arizona. Now before the Court is Defendants' motion (Docket No. [#65]) to dismiss the Amended Complaint's FLSA and state-law "tip credit" claims. The application is denied.
The Court recently issued a Decision and Order [#63] containing a rather exhaustive discussion of the claims in this action, with which the reader is presumed to be familiar. Essentially, Plaintiffs, who were employed as tipped servers/hostesses/bartenders in Defendants' chain of restaurants, maintain that Defendants violated the FLSA and the pertinent state minimum-wage laws by, inter alia, paying them less than the full required minimum wage pursuant to the "tip credit, " while requiring them to spend an excessive amount of their work shifts performing non-tipped duties. In that regard, the original Complaint [#1] indicated that Defendants were violating the "tip credit" provision in at least two ways: First, by requiring Plaintiff's to perform non-tip-producing duties, that were related to their tip-producing duties, more than twenty-percent of the time; and second, by requiring them to perform non-tip-producing duties that were not related to their tip producing duties ("dual job duties").
In its prior Decision and Order [#63], the Court granted Defendant's motion to dismiss, in part, and dismissed the FLSA minimum-wage claim because, although the original Complaint alleged that Plaintiffs were paid less than the minimum wage for certain shifts, it failed to plausibly allege that they were paid less than the minimum wage for any particular week. However, the Court granted Plaintiffs leave to replead, which they did. Specifically, on July 14, 2014, Plaintiffs filed the Amended Complaint [#64].
The Amended Complaint [#64] now asserts that Plaintiffs were required to perform either unrelated non-tipped duties ("dual job" duties), or an excessive amount of related nontipped duties ( i.e., more than twenty percent of the shift), during each and every shift, and that they were therefore necessarily paid less than the minimum wage for each and every week that they worked for Defendants. Plaintiffs maintain, in that regard, that they are entitled to receive the full minimum wage for all hours spent performing either type of work. That is, they maintain that they are entitled to receive the full minimum wage for all unrelated non-tip-producing ("dual job") work, and they are entitled to receive the full minimum wage for all related non-tip producing work that was performed during more than twenty-percent of a shift. The Court understands Plaintiffs to mean that they are entitled to such payment, for such work, even if their total weekly pay, including all tips, when divided by the number of hours worked, exceeds the minimum wage, since an employer cannot rely upon the tips that an employee earns on tip-producing work to compensate for paying that employee subminimum wages for work that falls outside of the tip credit.
However, Defendants maintain that Plaintiff's failed to correct the pleading deficiencies identified in the Court's prior Decision and Order. More specifically, Defendants object to the fact that the Amended Complaint describes the various non-tip producing "opener, " "closer" and "running sidework" tasks that each Plaintiff performed each shift, along with a total of how long it would take, during each shift, to complete those combined tasks, but does not state exactly how long it took for each Plaintiff to complete each of the discrete "opener, " "closer" or "running sidework" tasks:
Plaintiff Hart's allegations illustrate the amended complaint's deficiencies. Hart generally alleges that, depending on the shift, he performed either opener duties' or closer duties, ' [and he listed those duties.]... [However, ] [t]here is not a single allegation as to how long any specific task within th[ese] group[s] took.
Def. Memo of Law [#66] at p. 7 (emphasis added). Defendants describe this as "block pleading, " and contend that it is impermissible and contrary to the Court's direction in its prior Decision and Order. On this point, Defendants admit that the Amended Complaint alleges that Plaintiffs performed either "dual job" work, or related untipped work more than 20% of the time, but they nevertheless maintain that such "block pleading" is inappropriate because it "does not differentiate between (1) tipped duties, (2) non-tipped duties related to the tipped occupation, and (3) non-tipped duties unrelated to the tipped occupation." Def. Memo of Law [#66] at p. 8. In support of their position, Defendants rely largely on Roberts v. Apple Sauce, Inc., 945 F.Supp.2d 995 (N.D.Ind. 2013) (" Roberts ") which, they maintain, requires a tip-credit claim complaint to "identify the non-tip producing duties [plaintiff] performed, state how many minutes or hours they took to perform, and place that time in the context of hours worked during the entire shift." Def. Memo of Law [#66] at p. 11.
Defendants further maintain that "[c]ertain of the duties Plaintiffs characterize... as opening and closing duties actually constitute tipped duties." Def. Memo of Law [#66] at p. 12. In that regard, Defendants contend, again relying on Roberts, as well as Pellon v. Bus. Representation Int'l, Inc., 528 F.Supp.2d 1306, 1313-14 (S.D.Fl 2007), aff'd 291 Fed.Appx. 310 (11th Cir. 2008) (" Pellon "), that some non-tip producing activities that are related to tipproducing activities "constitute tipped employment, " Id., which can, presumably, therefore be performed as often as required, while still falling under the tip credit exception. Id. at pp. 12-13. Defendants state that such duties are different than the "related non-tipped functions" that cannot be performed more than twenty percent of the time to qualify for the tip credit, but they do not explain how one differentiates between the two.
Defendants also maintain that the Amended Complaint is deficient because it is "devoid of any allegations, i.e., total compensation divided by total hours worked, to conclude that Plaintiffs' average wage for the week, including tips, fell below the minimum wage." Def. Memo of Law [#66] at p. 17. As to this argument, Defendants seem to maintaint that if the sum of the wages paid by Defendants and the tips received by a Plaintiff, divided by the number of hours worked that week, is equal to or greater than the actual minimum wage, then the Plaintiff has no ...