United States District Court, W.D. Virginia, Lynchburg Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
Norman K. Moon Plaintiffs are servers, waiters, and
bartenders at Macado's restaurants that are owned and
operated by Defendants. Defendants are various Macado's
holding companies and the parent company's president.
Plaintiffs allege Defendants have paid them below minimum
wage in three distinct ways. First, Plaintiffs allegedly were
required to perform non-tip-producing tasks that were
unrelated to their normal work while clocked-in as tipped
employees (known as a “dual jobs” violation).
Second, they allegedly were required to spend over twenty
percent of their time on non-tip-producing tasks that were
related to their normal work (a “side work”
violation). Third, they allegedly were required to perform
unpaid work off the clock. Defendants moved to dismiss,
primarily arguing these allegations lack sufficient factual
content to be plausible. The Court will dismiss the first and
third claims without prejudice, but the second claim
survives. Macado's president will also be dismissed
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
legal sufficiency of a complaint to determine whether a
plaintiff has properly stated a claim. “To survive a
motion to dismiss, Plaintiffs' factual allegations, taken
as true, must ‘state a claim to relief that is
plausible on its face.'” Hall v. DIRECTV,
LLC, 846 F.3d 757, 765 (4th Cir. 2017) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“When ruling on a motion to dismiss, courts must accept
as true all of the factual allegations contained in the
complaint and draw all reasonable inferences in favor of the
plaintiff.” Id. However, a court need not
“accept the legal conclusions drawn from the
facts” or “accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Simmons v.
United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768
(4th Cir. 2011).
Facts as Alleged
are current and former servers, waiters, and bartenders at
Defendants' restaurants. (Dkt. 72 at ¶¶4, 20,
21). They receive both an hourly wage from Defendants and
tips. (Id. at ¶4). Defendants pay Plaintiffs as
tipped employees, providing a wage below the federal minimum
wage for untipped employees. (Id. at ¶27).
Plaintiffs allege compensation decisions and employment terms
are “made through a centralized management
team[.]” (Id. at ¶26). Macado's
leadership implemented this centralized scheme through
routine visits of new locations and preparation of new
management. (Id.). Defendants used the visits to
enforce a policy of staffing restaurants with fewer employees
than necessary. (Id. at ¶27).
policy required Plaintiffs (1) to perform unrelated
non-tip-producing tasks while clocked-in as tipped employees
(“dual jobs”), (2) to perform related
non-tip-producing tasks for This analysis requires a fact
specific inquiry, and Plaintiffs may be able to plausibly
allege that Defendant is an employer. The Court will dismiss
him without prejudice. See Goode v. Cent. Virginia Legal
Aid Soc'y, Inc., 807 F.3d 619, 626 (4th Cir. 2015)
(“[T]hese are precisely the kinds of pleading
deficiencies that amendment to the complaint could have
cured[.]”). more than twenty percent of their work time
while clocked-in as tipped employees (“side
work”), and (3) to perform work “off the
clock.” (Dkt. 72 at ¶27).
alleged “dual jobs” violation.
allege they were required to perform various forms of
non-tipped work that were unrelated to their tipped jobs as
servers, waiters, and bartenders. (Id. at
¶¶4, 57). This work included: “cleaning
bathrooms and scrubbing toilets, cleaning kitchen staff's
dishes and utensils, cleaning dishes, taking out trash, [and]
scrubbing kitchen floors.” (Id. at ¶57).
alleged “side work” violation.
allege they were required to perform various forms of
non-tipped work that was related to their tipped jobs.
(Id. at ¶65). This included: “rolling
silverware, refilling sugar caddies, salt and pepper shakers,
ice, and condiments, cleaning chairs, tables, booths, and
performing pre-closing cleaning tasks (such as vacuuming
and/or sweeping the server's assigned area and checking
dishes, napkins, and utensils, cleaning the bar, wiping down
bottles, restocking beer, cleaning taps and bar, cleaning bar
area tables, and washing bar glasses[.]”
(Id.). Plaintiffs were allegedly required to engage
in these tasks one to three hours per shift, which was
“in excess of 20% of [Plaintiffs'] work
alleged “off the clock” violation.
allege they were required to help “other tipped
employees deliver food to their customers, filling cups of
toothpicks for the cooks to use in cooking/food preparation,
washing dishes, cleaning the dining area, and
helping/assisting with food preparation.” (Id.
at ¶37). This work occurred “before
[Plaintiffs'] scheduled shifts” and was “off
the clock.” (Id.).
the complaint also contains allegations concerning the
putative class members of the collective action, but these
allegations are not relevant at this stage. (Id. at
FLSA sets the current federal minimum wage at $7.25 an hour.
29 U.S.C. § 206(a)(1)(C). However, if an employee
receives tips, their employer may pay them an hourly wage
below the minimum wage:
In determining the wage an employer is required to pay a
tipped employee, the amount paid such employee by the
employee's employer shall be an amount equal to-
(1) the cash wage paid such employee which for purposes of
such determination shall be not less than [$2.13 per hour];
and (2) an additional amount on account of the tips received
by such employee which amount is equal to the difference
between the wage specified in paragraph (1) and [$7.25 per
The additional amount on account of tips may not exceed the
value of the tips actually received by an employee.
29 U.S.C. § 203(m); Trejo v. Ryman Hosp. Properties,
Inc., 795 F.3d 442, 447 (4th Cir. 2015)
employer can thus pay tipped employees (1) a cash wage of
$2.13 plus (2) an additional amount in tips that brings the
total wage to the federal minimum wage.”). The FLSA
defines “tipped employee” to mean “any
employee engaged in an occupation in which he customarily and
regularly receives more than $30 a month in tips.”
Id. § 203(t).
Department of Labor has issued the following regulation to
interpret the phrase “more ...