Law.com, PF Chang's Hit With Tipped Workers' Minimum WageSuit

full article from law.com

By Max Kutner · May 25, 2021, 2:25 PM EDT

P.F. Chang's failed to pay servers and bartenders the proper minimum wage by not following tip-credit requirements, including by making them do too much nontipped work, workers said in a proposed collective action in Arizona federal court.

In a complaint Monday, former worker Dylan Fournier said that by failing to follow tip-credit requirements, P.F. Chang's China Bistro Inc. and a related entity violated the Fair Labor Standards Act and owed servers and bartenders nontipped minimum wage.

"There are strict requirements that must be met by an employer [that] seeks to utilize the trip credit to meet their minimum-wage obligations," the complaint said. "In this case, defendants did not satisfy the strict requirements to use the tip credit."

P.F. Chang's did not give workers required notice about the tip-credit system; made them pay for their own uniforms, resulting in their making less than even the tipped minimum wage; and made workers spend too much time on nontipped work, the complaint said.

"The class members were not given proper notice of the tip-credit provisions, were subject to the same illegal deductions from their wages and tips and performed substantial work that was unrelated to their tip-producing duties," the complaint said.

Under the FLSA, an employer can pay tipped workers a lower minimum wage than the usual $7.25 an hour. But if a worker spends more than 20% of time on nontipped duties, an employer must pay at least the regular minimum wage for that time.

But the P.F. Chang's servers and bartenders did not receive regular minimum wage when they spent that much time on nontipped duties, such as setting up tables, making coffee, rolling silverware, cleaning bottles and filling condiments, the complaint said.

They also did nontipped work such as cutting fruit, making drinks, labeling bottles, setting up soups and sauces, throwing out trash and cleaning tables, windows and bar tops, according to the complaint.

"While performing these non-tip-generating duties, they did not interact with customers and could not earn tips," the complaint said.

These were often duties that back-of-the-house workers earning at least minimum wage typically did, the complaint said.

The servers and bartenders had to do some nontipped work before the restaurant opened and after it closed, "when there were no customers and no opportunity to earn tips," and the tasks could take them between 30 minutes and two hours, the complaint said.

The restaurant chain also violated tip-credit requirements by failing to provide required notice to workers about details of the system, such as how much of the cash wage they would receive, the complaint said.

Because the chain required the workers to buy uniforms consisting of shirts, pants, belts and shoes and did not reimburse them for those costs, the workers did not always make even the tipped minimum wage, the complaint said.

"Given that defendants failed to comply with the requirements to take the tip credit, defendants have lost the ability to claim the tip credit and owe plaintiffs and the class members pay at the minimum wage rate of $7.25 per hour for all hours they worked," the complaint said.

The former worker who brought the suit, Fournier, was a bartender and waiter at a P.F. Chang's in Texas from December 2018 to June 2019, according to the complaint.

Fournier is seeking to represent a collective of all current and former P.F. Chang's tipped employees who worked for at least one week during the past three years.

P.F. Chang's has more than 210 restaurants in the U.S. and more than 95 abroad, according to its website.

Anthony J. Lazzaro and Don J. Foty, who represent Fournier, said restaurants often take advantage of tipped workers by making them do nontipped work.

"P.F. Chang's required their tipped workers to perform a significant amount of side work and cleaning work before and after their shifts, and they cannot generate tips during this time," Lazzaro and Foty said in a statement to Law360 on Tuesday. "This lawsuit is brought to help tipped workers receive the fair and just pay they deserve."

A P.F. Chang's spokesperson declined to comment.

Fournier is represented by Anthony J. Lazzaro, Chastity L. Christy and Lori M. Griffin of the Lazzaro Law Firm LLC and Don J. Foty of Hodges & Foty LLP.

Counsel information for the P.F. Chang's defendants was not available.

The case is Dylan Fournier v. P.F. Chang's China Bistro Inc. et al., case number 2:21-cv-00912, in U.S. District Court for the District of Arizona.

--Editing by Neil Cohen.