The Original Oyster House in Gulf Shores has agreed to pay $770,490 to 68 current and former employees to settle a lawsuit related to back pay under the Fair Labor Standards Act. The restaurant will also pay about $110,000 in total court costs and attorneys fees as a part of the settlement.
The settlement puts an end to a series of claims against the restaurant, but similar cases against other area restaurants have already been filed. All of the suits are being handled by the same Birmingham law firm.
The suit, which was originally filed on behalf of two former servers in January 2014, claimed the servers, who were paid $2.13 per hour, were owed wages related to a system known as a “tip pool” operated by the restaurant, which forced them to share tips with employees who didn’t directly interact with customers. The suit argued the tip pool was invalid because it included oyster shuckers and kitchen staff, who didn’t interact with customers on a regular basis yet received higher wages.
The suit also alleged 20 percent of the servers’ shift was used for side work, or work where they didn’t interact with customers.
In an eight-page answer to the suit filed last February, the Original Oyster House denied any wrongdoing. But after reaching individual settlements throughout the year, U.S. District Magistrate Judge William E. Cassady issued a judgment earlier this month settling the case for the 37 remaining plaintiffs.
“This judgment provides a total resolution and complete satisfaction of any and all claims and allegations by the settling plaintiffs against the defendant that are or could have been asserted in this action,” Cassady wrote. “In addition, the terms of the settlement recognized herein represent a fair and reasonable resolution of this bona fide FLSA dispute.”
Cassady wrote that the settlement did not constitute an admission of guilt or liability on the part of the defendant.
The 37 plaintiffs named in the judgment received between $21,045 and $150 each. The sum was based on each plaintiffs’ tip credit amount and “liquidated damages,” Cassady wrote.
The Original Oyster House will also have to pay legal fees for the 37 plaintiffs totaling $68,000 to the firm of plaintiffs’ attorney Daniel Arciniegas. The settlement amounts and legal fees must be paid within 15 business days of the date of the judgment, according to the order.
Oyster House attorney R. Scott Hetrick had no comment on the final judgment and directed Lagniappe to call Superb Foods/Oyster House President and CEO Joe Roszkowski directly. Roszkowski did not return a phone call requesting comment, as of Monday afternoon.
Arciniegas declined to comment as well, stating that he didn’t want to comment about the judgment until settlement payments had been received by his clients.
Meanwhile, Arciniegas filed a similar suit Oct. 8 against the owners of the Shrimp Basket, who operate sister restaurants called Mikee’s Seafood and The Steamer in Gulf Shores. The suit names all three restaurants as defendants, based upon plaintiff Jessica Miller’s alleged experiences with an “invalid” tip pool as a server and bartender at Mikee’s.
Miller claims she was forced to contribute a portion of her tips to food expeditors and dishwashers, who do not normally interact with customers and typically receive a higher wage.
“At the end of each shift, defendants total servers’ tips and require servers to pay 2 percent of food sales into a cup to be divided up to non-tipped employees, including dishwashers,” the suit reads. “Servers were also required to contribute $2 per shift to the food expeditor who plated trays in the kitchen. Defendants including dishwashers (non-tipped employees) in the tip pool invalidates the tip pool and requiring employees to contribute a portion of their tips to food expeditors (non-tipped employees), resulted in the misapplication of the tip credit, as well as the misappropriation of server’s tip-earnings.”
The suit also claims servers were required to perform pre-shift and post-shift work that took up more than 20 percent of their work day, and alleges the plaintiff was not paid for this time.
“During the ‘pre-shift’ time plaintiff and, on information and belief, all similarly situated Servers were required to report to work approximately one hour before defendants opened (sic) its doors and begins serving customers and were prohibited from clocking in,” the suit stated. “During this ‘post-shift’ time they were performing non-serving duties, they were asked to clock out if not waiting on a table and were not compensated for this time.”
The complaint requests a jury trial and asks for damages in the amount of unpaid compensation and benefits. The suit also demands the defendants pay for related attorneys fees and court costs.
Tammy L. Baker, an attorney representing Mikee’s Seafood, denied any wrongdoing on behalf of the restaurant in response to the complaint. She also listed affirmative defenses to the claims.
In the response, Baker wrote that the defendants “were at all times acting in good faith and had reasonable grounds for believing that their actions were not in violation of the Fair Labor Standards Act.”
Baker argued upper management and corporate guidelines wouldn’t have allowed the actions complained about to take place.
“The relief sought in the complaint is not appropriate because, even if any unlawful practices occurred, which defendants expressly deny, such practices were prohibited by corporate policy and not committed, approved or ratified by upper management,” Baker wrote.
She also argued that any tip pool by the servers was a valid tip pool.
In a statement issued through Baker, Mikee’s ownership denies the suit’s allegations.
“As set forth in our answer to her claims, we categorically deny the allegations asserted by former employee Jessica Miller, who worked for us several different times,” the statement reads. “We value all of our employees and pay them fairly in accordance with the laws. Nevertheless, we have policies against litigating claims through the press. We are confident that we will be vindicated through the legal process.”
A third FSLA suit was also brought last month against Lambert’s Cafe in Foley by former employee Ramona Brown. That suit asks for unpaid wages and overtime, alleging the plaintiff and “other similarly situated servers” would arrive, perform 20 minutes of pre-shift work and then be asked to clock out until customers were seated in their sections.
The suit, also filed by Arciniegas, claims Brown would wait unpaid up to ”three hours” for tables to be seated.
No attorney for Lambert’s Cafe was listed in court documents and attempts to reach the restaurant’s corporate office were unsuccessful. Lambert’s has yet to file an answer to the complaint.
This page is available to subscribers. Click here to sign in or get access.
It looks like you are opening this page from the Facebook App. This article needs to be opened in the browser.
iOS: Tap the three dots in the top right, then tap on "Open in Safari".
Android: Tap the Settings icon (it looks like three horizontal lines), then tap App Settings, then toggle the "Open links externally" setting to On (it should turn from gray to blue).