United States District Court, W.D. Virginia, Lynchburg Division
K. MOON JUDGE
matter is before the Court upon Defendant Macado's,
Inc.'s partial motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6). (Dkt. 107). This case is a collective action
brought under the Fair Labor Standards Act (FSLA) by current
and former Macado's servers and bartenders who allege
that Macado's has paid them below minimum wage in three
distinct ways. First, Macado's allegedly required
Plaintiffs to perform non-tip-producing tasks that were
unrelated to their normal work while clocked in as tipped
employees (a “dual jobs” claim). Second,
Macado's allegedly required Plaintiffs to spend over
twenty percent of their time on non-tip-producing tasks that
were related to their normal work (a “side work”
claim). Third, Macado's allegedly required Plaintiffs to
perform unpaid work off the clock before their scheduled
seeks to dismiss Plaintiffs' “dual jobs” and
“side work” claims on the basis of a recent
Department of Labor (DOL) opinion letter and Handbook update.
The Court finds that these materials are not entitled to
Auer or Skidmore deference, and the Court
will therefore deny Macado's motion to dismiss.
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; it “does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992). The Court must take all facts and
reasonable inferences in favor of the plaintiff, disregard
any legal conclusions, and not credit any formulaic
recitations of the elements. See Iqbal v. Ashcroft,
556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 557 (2007).
Factual & Legal Background
originally filed this action on January 10, 2018. (Dkt. 1).
On August 1, 2018, the Court granted Macado's first
motion to dismiss in part, dismissing without prejudice
Plaintiffs' “dual jobs” and
“off-the-clock” claims, primarily because
Plaintiffs had not provided sufficient factual specificity
about how much time was spent on unrelated non-tip producing
tasks and how frequently Plaintiffs were required to perform
“off-the-clock” work. (Dkts. 88; 89).
Plaintiffs' “side work” claim survived.
(Id.). Plaintiffs' subsequently amended the
complaint, bringing all three claims again. (Dkt. 105
Jeffrey Spencer, Cheyenne Williams, and Travis Hostetter are
current and former employees of Macado's Lynchburg
location. (Id. ¶¶ 1, 6-8). They receive
both an hourly wage and tips. (Id. ¶¶
6-8). Macado's pays / paid Plaintiffs as tipped
employees, providing a wage below the federal minimum wage
for untipped employees. (Id. ¶ 52). Plaintiffs
allege that Macado's maintained a policy of staffing
restaurants with fewer employees than necessary.
(Id. ¶ 13). In turn, this policy of
understaffing 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 more than twenty
percent of their work time while clocked in as tipped
employees (“side work”), and (3) to perform work
“off the clock” before their scheduled shifts.
(Id. ¶ 13).
Count One (Plaintiffs' “dual jobs” claim),
Plaintiffs allege Macado's required them to perform
various forms of non-tipped work unrelated to their tipped
jobs as servers and bartenders. (Id. ¶ 53).
Such unrelated work included “cleaning bathrooms and
scrubbing toilets, cleaning kitchen staff's dishes,
cleaning dishes, taking out trash, [and] scrubbing kitchen
floors.” (Id.). Plaintiffs allege that they
“and putative class members routinely spend one (1) to
three (3) hours of each shift performing tasks entirely
unrelated to their tip-producing duties.” (Id.
Count Two (Plaintiffs' “side work” claim),
Plaintiffs also allege they were required to perform various
forms of non-tipped work that was related to their tipped
jobs. (Id. ¶ 61). Such related work included
“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 for one to three hours per shift, “in
excess of 20% of [Plaintiffs'] work time.”
(Id. ¶¶ 35, 61, 63).
Count Three (Plaintiffs' “off-the-clock”
claim), Plaintiffs allege they were required to perform
“off the clock” work such as “helping 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 . . . with food preparation.” (Id. at
¶ 68). This work occurred “before and/or after
[Plaintiffs'] regularly scheduled shifts, ”
“at least one (1) to two (2) hours per week.”
(Id. ¶ 34).
present motion to dismiss, Macado's seeks to dismiss only
Counts One and Two under Rule 12(b)(6).
Relevant FLSA Provisions and DOL Regulations
Court first provides an overview of FLSA's minimum wage
provisions and the various regulatory sources of
Plaintiffs' “dual jobs” and “side
work” claims. 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 ...