Law.com, Buffalo Wild Wings Can't Use Tip Credit For Wages, Suit Says

full article from law.com

By Morgan Conley · Nov 19, 2021, 6:21 PM EST ·

A former Buffalo Wild Wings waitress sued the restaurant chain in Georgia federal court alleging that it can't use a tip-credit provision under federal labor law to avoid its minimum wage obligations and that it underpays tipped workers by forcing them to do untipped work and buy their own uniforms.

Joanne DePalo launched a proposed class and collective action Thursday against Buffalo Wild Wings Inc. alleging that she and other employees nationwide weren't fairly compensated by the worldwide restaurant chain. DePalo, who worked as a waitress at a Buffalo Wild Wings in Centereach, New York, for six years, seeks to represent all persons who work or did work for any of Buffalo Wild Wings' locations nationwide as a tipped worker for at least one week over the past three years.

DePalo said Georgia is the proper venue for the lawsuit since the company conducts a significant amount of business in the state and the company is currently headquartered in Sandy Springs, Georgia.

According to the complaint, both the Fair Labor Standards Act and New York Labor Law outline strict criteria that must be met for an employer to use the tips a worker brings in to offset its minimum wage obligation to the employee, known as a tip credit.

DePalo alleges Buffalo Wild Wings utilized tip credits without notifying affected workers about the wage they should receive, how the tip credit impacts that amount and that tipped workers are entitled to hold onto all the tips they earn except for when they are expected to contribute to a "valid tip pool." The tip credit is not supposed to apply to employees who weren't notified, DePalo said.

The complaint also accuses Buffalo Wild Wings of making tipped employees perform untipped cleaning work and spend more than 20% of their time on untipped side work, such as setting up tables, rolling silverware and refilling condiments.

Such practices violated the FLSA and NYLL, DePalo said.

Buffalo Wild Wings' press team didn't immediately return a request for comment Friday.

The suit also argues that the restaurant chain requires tipped employees to pay for uniform items, including pants, belts and shoes, without reimbursement, thus reduced their hourly rates of pay below the minimum wage.

DePalo is asking the court to force Buffalo Wild Wings to pay her and other workers like her "minimum wage compensation unadulterated by the tip credit" in addition to damages. She is also seeking reimbursement for all expenses and wages wrongfully withheld, as well as statutory penalties.

Under NYLL, DePalo argues the proposed class members would be entitled to $250 per week in statutory penalties for Buffalo Wild Wings' alleged failure to provide accurate wage statements, or as much as $5,000 total plus reasonable attorneys' fees.

The suit is also seeking a court order that Buffalo Wild Wings must correct its allegedly unlawful pay practices going forward.

An attorney for DePalo, Don J. Foty of Hodges & Foty LLP, told Law360 in an email Friday the lawsuit was brought "to help tipped workers receive the fair and just pay they deserve."

"Restaurants have been taking advantage of their tipped workers for years. The tipped minimum wage under the Fair Labor Standards Act has remained stagnant at $2.13 per hour since 1991, while the non-tipped minimum wage is $7.25," Foty wrote in his email. "At such a low hourly rate, restaurants have a financial incentive to require their tipped workers to perform the job of cleaners at the rate of $2.13 per hour in many states."

DePalo worked as a waitress at a Buffalo Wild Wings on Long Island from May 2013 to December 2019, according to the suit. She says in the suit she and her fellow tipped coworkers were not properly informed of the tip credit provisions and completed a significant amount of work that was unrelated to their tip-producing duties.

The workers are represented by A. Lee Parks and John L. Mays of Parks Chesin & Walbert PC; Don J. Foty of Hodges & Foty LLP; and Anthony J. Lazzaro, Alanna Klein Fischer and Lori M. Griffin of the Lazzaro Law Firm LLC.

Counsel information for Buffalo Wild Wings wasn't immediately available Friday.

The suit is DePalo v. Buffalo Wild Wings Inc. et al., case number 1:21-cv-04779, in the U.S. District Court for the Northern District of Georgia.

--Editing by Andrew Cohen.