Two former servers at Red Robin Restaurants in Wilkes-Barre and Dickson City, Pennsylvania, can proceed with their Fair Labor Standards Act () class action against franchisee, Lehigh Valley Restaurant Group, Inc. The suit alleges Lehigh’s tip pooling scheme violates the FLSA because it includes workers who only have a de minimus interaction with customers.
Lehigh requires servers to contribute 3% of their sales to a tip pool that is distributed to bartenders, expediters and busboys. Expediters are staff who resolve customer disputes and help cook during busy times. The suit alleges expediters are not employees who “customarily and regularly” receive tips as the FLSA requires for workers to receive tips from a pool. A U.S. District Judge refused to dismiss the case so it will go to trial.
Note: The U.S. Department of Labor has targeted tip pools for enforcement actions in recent years. Employers should consult with counsel to determine whether their tip pool complies with the FLSA.