In a move that could have implications for food service workers nationwide, the Supreme Court yesterday refused to stop a lawsuit by Applebee's staffers who say they weren't properly paid for side work.
Under Washington law, restaurant workers are paid minimum wage regardless of how much they make in tips. But federal law allows employers elsewhere to use tips as credit against the minimum wage, which is why servers and bartenders in many states are paid a few dollars an hour.
The plaintiffs in the case reviewed by the Supreme Court claim Applebee's paid them $2.13 an hour - the permissible tippable rate - while requiring them to spend significant portions of their shifts doing non-tippable chores, such as cutting fruit for mixed drinks, cleaning blenders, sweeping bathrooms and rolling silverware.
The Eighth Circuit Court ruled the burden is on employers to show their compensation structure complies with the Fair Labor Standards Act, which states tip credits can't be applied to employees spending more than 20 percent of their time on duties which don't directly produce tips. Applebee's appeal was supported by the National Restaurant Association.
While restaurant diners only see their servers when they're ferrying plates or chatting about Chardonnay, most restaurants require their servers to come early and stay late so they can handle prep and janitorial tasks, usually defended as a "pay to play" set-up. When I worked as a server in North Carolina, a tip credit state, our managers told us that we earned the privilege of waitressing by scrubbing toilets and washing windows. But the Supreme Court's action could upset that arrangement.
At a 2010 hospitality law conference, Applebee's attorneys recommended restaurant owners consider paying full minimum wage performed outside of operating hours.
"If I ran a restaurant in another state, I'd be thinking about job separation," says D. Jill Pugh, a Seattle employment attorney. Pugh envisions restaurant owners hiring minimum wage workers to roll silverware.
Still, Seattle attorney Marty Garfinkel says it's probably too early for servers in other states to put away their dust rags.
"It appears that nothing was decided on the merits of the case, just that it could go forward," he writes. "So, too soon to say about its impact."