Two more local restaurants joined a crowded table of defendants facing allegations of improper wage payments, as a Birmingham law firm continues filing lawsuits against some of the Mobile-area’s best-known restaurants alleging employees were improperly compensated. The two latest suits were on behalf of current and former employees at both Butch Cassidy’s and Wintzell’s Oyster House.
The first, filed by plaintiffs Melissa Kennedy, Sylvia Pipkin and Tracy Cochran on March 4, targets the popular “almost famous” burger joint on Florida Street and its owner, Roy Seewer.
Represented by attorney Daniel Arciniegas, the plaintiffs seek wages and overtime payments impacted by an alleged “invalid tip pool” and side work that took up “more than 20 percent of a shift.”
Seewer, a familiar face at the eatery and on its television commercials, declined to comment at this time.
According to the suit, Kennedy started at Butch Cassidy’s in 2006 and still works there as a server and bartender. Cochran worked there for more than three years and Pipkin was employed for more than a year and a half.
The plaintiffs were paid $3 per hour, according to the suit. The minimum wage for tipped employees is $2.13 per hour. The complaint states the restaurant required the plaintiffs to participate in a tip pool that was invalid because it included “employees who do not customarily receive tips,” like dishwashers.
“Dishwashers (given the inaccurate title of “busboys”) are non-tipped employees, as they are not employed to engage with customer, but to wash dishes in the kitchen, away from customers,” the suit reads. “The dishwashers do not customarily and do not regularly receive more than $30 in tips a month directly from customers; nor do they provide ‘service’ to customers in a way that warrants a share of the gratuity left by customers.”
The suit also alleges the restaurant owner would fill in as bartender and would receive “a portion of the tip out.”
Because the tip pool was “invalid,” the suit argues, the defendant improperly claimed the Fair Labor Standards Act tip credit, which allows Butch Cassidy’s and other restaurants to pay servers less than minimum wage for non-tipped positions.
According to a U.S. Department of Labor’s Wage and Hour Division fact sheet, a tipped employee is any worker who “regularly receives more than $30 per month in tips.” The tips are the property of the employee, according to the WHD, but that doesn’t preclude a tip pool, as long as it’s a valid tip pool.
A valid tip pool, according to the WHD, includes servers, bellhops, counter attendants, who work with customers; bussers and service bartenders. A valid tip pool may not include employees who do not regularly receive tips, such as dishwashers, cooks, or chefs, according to the law.
An employer must also ensure the minimum wage they pay to tipped employees and the tips received by an employee equals the $7.25-per-hour federal minimum wage amount, according to the WHD. If the tips and wage doesn’t equal the minimum, the employer must make up the difference.
A similar suit was also filed against the downtown Mobile location of Wintzell’s Oyster House. In that complaint, filed Friday, March 6, plaintiffs Raven Williams and D’Andre Wilkerson claim they were only paid the $2.13 per hour wage, despite coming in a half hour before Wintzell’s opened and doing non-tip-producing activities. Neither Williams nor Wilkerson currently work at Wintzell’s, according to the complaint.
The suit also alleges the plaintiffs performed non-tip producing activities at the end of their shifts before being released, or “cut” for the day.
“Plaintiffs and other similarly situated employees spent a substantial amount of time — in excess of 20 percent of their working time — performing these non-tip-producing activities,” the complaint reads.
The suit alleges Wintzell’s required servers to participate in a tip pool as well that had them tip out 1 percent of their total net sales each day to the dishwasher. The complaint argues the inclusion of the dishwashers into the tip pool invalidates it.
Wintzell’s owner Bob Omainsky could not be reached for comment, but in an April 9, 2014 Lagniappe story about an earlier lawsuit against The Original Oyster House, Omainsky said servers at his restaurant were paid $2.25 an hour.
The most recent lawsuits come on the heels of similar complaints filed by the same team of Birmingham attorneys against four other Mobile-area restaurants to date. Earlier this year, the Original Oyster House settled its case with 68 employees for a total of $770,000 and payment of attorneys’ fees.
Mikee’s Seafood and The Shrimp Basket in Gulf Shores were named in a similar suit last month, but denied any wrongdoing. Lambert’s Cafe in Foley was also sued under the same circumstances.
Elizabeth Darby Rehm, a local attorney representing Missouri-based Lambert’s, said restaurant management denies all of the allegations.
In an answer filed Feb. 20, Lambert’s posed 14 affirmative defenses, including that the request for damages in the case is barred because the defendant was “at all times acting in good faith and had reasonable grounds for believing that its actions were not in violation of the Fair Labor Standards Act.”
Additionally, Lambert claimed “the relief sought in the complaint is not appropriate because, even if any unlawful practices occurred, which defendant expressly denies, such practices were prohibited by corporate policy and not committed, approved or ratified by upper management.”
Neither Wintzell’s nor Butch Cassidy’s legal teams have responded to the complaints at this time.
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