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Tired of Doffing Her Pay, Server Gets Her Plaintiff On

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Hixson, TNAn Unpaid Wages lawsuit filed just yesterday (March 30, 2016) takes a well-known restaurant chain to task for allegedly forcing, or allowing, employees to work off the clock, and in so doing, paying them less than the standard minimum wage.

The Chattanooga Times Free Press (3/31/16) reports the defendant in the case is Ruby Tuesday, a franchise with no fewer than 658 locations in 44 states. The unpaid wages claim, brought by a waitress employed by Ruby Tuesday on Highway 153 in Hixson, is proposed as a class action. Lead plaintiff Charlene Craig, who remains employed by the chain, alleges that her employer maintains a culture that encourages servers and bartenders to perform “sidework” such as slicing lemons, filling ice bins and rolling silverware, among other functions.

Not only are these tasks performed as off-the-clock work - for which the employee is not getting paid at all - but there’s another issue pertaining to the mandated limitations on the amount of non-tipped work an employee earning a server’s wage of $2.13 per hour can perform.

To that end, a server is paid the lower wage - well below minimum - with the understanding that shortfalls are made up through tips. Federal law allows tipped staff to perform non-tipped sidework up to 20 percent of the time while continuing to be paid at the server’s wage of $2.13 per hour. Any side work over that 20 percent limit is mandated under federal law to be paid at an hourly rate of at least $7.25.

The plaintiff’s unpaid wages attorney asserts that Craig and other tipped employees at the Ruby Tuesday chain are doing much more non-tipped sidework, exceeding the 20 percent threshold. While the employees are allegedly performing sidework, they are not available to earn tips and, thus, are underpaid.

The same holds true for an employee working off the clock.

The proposed class-action lawsuit would seek to represent any similarly situated employees across the 44 states in which Ruby Tuesday conducts commerce, including the state of California. That would allow servers and bartenders at Ruby Tuesday locations in the state to seek California unpaid wages.

Craig’s unpaid wages attorney notes that class members could be eligible for a compensation rate of $10.24 per hour, which is double the difference between the $2.13 tipped rate and the $7.25 minimum wage rate, for sidework performed beyond 20 percent of their day or week.

In recent years there has been an escalation of litigation surrounding off-the-clock work, sometimes referred to as donning and doffing lawsuits, based on a host of functions often mandated by an employer without proper payment of wages. This includes, but is not limited to, having to climb into and then climb out of protective gear and clothing prior to and following a work shift; waiting in line for mandated bag checks; or being made to perform various tasks at the behest of management while off the clock - and, thus, being denied payment for such tasks.

The position of many an unpaid wages claim is based upon the premise that any work or task assigned by management - or the requirement to wear protective clothing and gear that takes time to don and doff - should be duly paid.

A precedent-setting off-the-clock work lawsuit in 2012 was heard by the US Supreme Court, which upheld a lower court ruling that Applebee’s International is required to pay full minimum wage to tipped staff performing general maintenance and preparation work more than 20 percent of the time.

That Unpaid Wages lawsuit was worth $9.1 million to 5,680 current or former employees of Applebee’s.

Ruby Tuesday, according to various reports, settled an off-the-clock work lawsuit in 2014. This latest case relates primarily to non-tipped sidework above 20 percent of a tipped employee’s responsibilities, which is in violation of the Fair Labor Standards Act.

No case information was available at press time.

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