Baroni’s Pizza violated federal labor laws by paying its delivery drivers less than minimum wage for time spent washing dishes, mopping floors and cleaning out drains, a lawsuit recently filed in district court claims.
Under the Fair Labor Standards Act, it’s legal for employers to require servers and other tipped employees to perform non-tipped tasks, such as making iced tea, setting tables or taking out trash. But if those duties account for more than 20 percent of the workweek, the employer is barred from taking a tip credit for the additional time. In practice, that means South Carolina restaurant workers must receive $7.25 an hour for time spent on excessive chores instead of the tipped minimum wage.
“This is especially important in South Carolina, where tipped workers are only paid $2.13,” says attorney Marybeth Mullaney, who’s representing the three former Baroni’s employees who brought suit. “You’ve got people scrubbing floors and cleaning bathrooms for $2.13 an hour.”
According to the lawsuit, delivery drivers were paid $4 an hour when they were out on delivery runs, and $6 an hour when they were in the restaurant, cleaning and prepping food. The complaint alleges the non-tipped duties occupied more than 20 percent of their time at work.
When contacted for comment, a manager at the Mount Pleasant location said he was unaware of the lawsuit and declined to provide contact information for the restaurant’s owners or attorney. “I’m not sure who you should talk to,” he said.
Mullaney is optimistic that the court will side with her clients, partly because U.S. District Judge Richard Gergel in May upheld the Department of Labor standard in a case involving Wild Dunes. A former Sea Island Grill server sued the resort, claiming he and his co-workers were forced to dust chandeliers, stock coolers and clean patios before, during and after their shifts, exceeding the 20 percent threshold established by the federal government.
In its response to the complaint, Wild Dunes argued that enforcement of the 20 percent provision had been “dizzingly inconsistent.”
Gergel ruled that the guideline was consistent and appropriate, and denied the defense’s partial motion to dismiss. According to Mullaney, the case marked the first time the Fourth Circuit has addressed the rule, which Gergel described in his opinion as “widely accepted by other courts.”
“It’s pretty significant that a judge is holding employers’ feet to the fire,” Mullaney says.
One month after Gergel issued his decision, S.C. District Court Judge J. Michelle Childs conditionally certified collective action against the operator of HomeTown Buffet and Ryan’s, based on servers’ claims that they were underpaid for side work. The lawsuit was progressing at press time.