Law.com, Workers Say Dave & Buster's 'Tip Credit' Shorted Their Pay

full article from law.com

By Irene Spezzamonte · Jun 30, 2021, 3:16 PM EDT

Two former Dave & Buster's Inc. waitresses filed a proposed collective action against the company in Arizona federal court, claiming the restaurant chain deprived its tipped workers minimum wage for the nontipped work they performed outside their shifts.

The two former Dave & Buster's employees said in their lawsuit Tuesday the company failed to pay its employees minimum wage for the work they performed during which they could not interact with customers and receive tips, violating the Fair Labor Standards Act and the Arizona Minimum Wage Act.

"Defendants required the plaintiffs and class members to arrive prior to the restaurants opening for business when there were no customers and no opportunity to earn tips, to perform manual labor cleaning and setup duties," the complaint said.

Natasha York and Gery Pearson, who both worked as waitresses for Dave & Buster's in Arizona and Texas respectively, said the company required them to spend up to two hours performing work such as sweeping the restaurant, refilling condiments and cleaning silverware, before and after the opening of the restaurant. Such work prevented them from interacting with customers and earning tips, they said.

The workers should have been paid for such nontipped work under a recently proposed U.S. Department of Labor rule that says workers are no longer performing tipped work if they engage in more than 30 continuous minutes doing nontipped work, the complaint said.

Dave & Buster's had the ability to differentiate between tipped and nontipped work in their timekeeping system with different job codes, but did not allow their tipped workers to clock in the full minimum wage rate for their nontipped work, the complaint said.

Instead, Dave & Buster's paid its workers for the nontipped work using a tip-credit provision under the Federal Labor Standards Act, but violated the federal law when it failed to inform its employees that it did so, according to the complaint.

Additionally, the complaint said Dave & Buster's also required tipped employees to incur work-related expenses, such as paying for their uniforms, which reduced their hourly rates of pay.

The proposed collective action would represent all current and former tipped employees who worked for Dave & Buster's for at least one week in the past three years.

The suit seeks liquidated damages, an order requiring Dave & Buster's to correct its pay practices, attorney's fees, costs and expenses. It also seeks to reimburse all tipped workers.

Anthony Lazzaro of Lazzaro Law Firm LCC, which represents York and Pearson, said Wednesday Dave & Buster's is trying to have its servers do two jobs while only paying for one.

"This is a pretty classic example of a restaurant that wants its servers to also work as cleaners for the entire restaurant," Lazzaro told Law360. "They can't have their cake and eat it too, which is what they want."

A spokesperson for Dave & Buster's declined to comment Wednesday.

Dave & Buster's has more than 130 restaurants and arcade locations throughout the U.S.

Natasha York and Gery Pearson are represented by Don J. Foty of Hodges & Foty LLP and Anthony James Lazzaro and Lori Marie Griffin of the Lazzaro Law Firm LLC.

Counsel for Dave & Buster's Inc. was not available Wednesday.

The case is York et al. v. Dave & Buster's Incorporated et al., case number 2:21-cv-01130, in the U.S. District Court for the District of Arizona.

--Editing by Vincent Sherry.