Hard Rock Cafe servers and bartenders sue for minimum wage

January 21, 2011 by

Two Hard Rock Cafe (“Hard Rock”) employees, who worked in the Hard Rock Cafe at Universal Studios in Orlando, filed a class action lawsuit against Hard Rock for the company’s alleged failure to pay minimum wages that were required under Florida law.  The Orlando Hard Rock Cafe is the largest Hard Rock Cafe in the world.  The case was brought under the minimum wage provisions of Florida’s Constitution, which was passed by citizen’s initiative and became effective as of May 2, 2005.

The putative class action was filed in Circuit Court in Orange County, Florida.  The complaint alleges that Hard Rock’s servers and bartenders were paid less than minimum wage during the period January 14, 2006 until approximately July 2009.  The complaint asserts that Hard Rock attempted to pay the servers and bartenders  less than minimum wages while taking a tip credit allowable under Florida and federal law only when the servers and bartenders are allowed to retain all of their tips or where a legal tip pooling arrangement is instituted among employees “who customarily and regularly receive tips.”  The complaint alleges that servers and bartenders improperly shared their tips with individuals who were employed as expediters.  The complaint asserts that the expediters at the Orlando Hard Rock Cafe are not customarily and regularly tipped employees; instead, they are kitchen employees who are responsible for ensuring food is prepared and garnished properly.  The Complaint alleges that Hard Rock was not entitled to the tip credit because servers and bartenders did not retain all their tips and paid a portion of their tips to expediters.

The Florida Constitution, Article X, Section 24(a) (“FMWA”) provides that “[a]ll working Floridians are entitled to be paid a minimum wage that is sufficient to provide a decent and healthy life for them and their families.”  In doing so, FMWA permits employers to pay less than the Florida minimum wage to employees who receive tips only if the eligibility requirements for the tip credit under the Federal Fair Labor Standards Act (“FLSA”) are met.  Id. at section 24(c).  If an employer satisfies the tip credit requirements, it may apply a portion of the employee’s tips (up to a maximum of $3.02 per hour) to satisfy its own minimum wage obligation.

To utilize the tip credit under the FLSA, and therewith the FMWA, the employer must allow its tipped employees to retain all the tips they receive, except when there is a valid arrangement for “pooling of tips among employees who customarily and regularly receive tips.”  29 U.S.C. section 203(m).  If an employer fails to satisfy this requirement, it may not take advantage of the tip credit and must directly pay its tipped employees the full minimum wage.

Florida’s minimum wage provision has recently been in the news because the Florida Agency for Workforce Innovation was sued for allegedly improperly calculating the minimum wage under Florida law.

Steve Larson
An experienced trial lawyer who handles both hourly and contingent fee cases, Steve has expertise in class actions, consumer cases, antitrust litigation, securities litigation, corporate disputes, intellectual property disputes, unfair competition claims, employment matters, and disputes involving family wealth. Steve regularly represents individuals and businesses in federal and state court and has obtained class-wide recovery in multiple class actions. A veteran practitioner, Steve's clients value his creative approach to resolving complex litigation matters.

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