Applebee's Loses Bid to Decertify Wage Class

     CHICAGO (CN) - A franchise of Applebee's restaurants cannot decertify a class of servers who claim they did not earn the minimum wage despite performing tip-free duties, a federal judge ruled.
     AppleIllinois LLC, which operates 34 Applebee's Neighborhood Bar & Grill restaurants in Illinois, faces a federal class action over the wages earned by servers and bartenders. Though the franchise pays these workers a reduced salary that accounts for tips, it regularly assigns them to perform non-tipped work, like dishwashing, cleaning, and kitchen operations, according to the complaint.
     The workers also claimed that they had to contribute 2.5 percent of sales per shift to a tip pool, which often exceeded 15 percent of total tips actually received. But the tip-pool money allegedly went toward cash-register shortfalls and other purposes.
     U.S. District Judge Geraldine Brown certified the class in March 2010, but AppleIllinois moved to decertify a class of "dual-job" employees in the wake of Wal-Mart Stores v. Dukes . In June 2011, the U.S. Supreme Court found that 1.5 million female employees lacked sufficient commonality to collectively pursue discrimination claims against Wal-Mart.
     The dual-jobs servers worked as tipped employees who also performed duties unrelated to their tipped occupation.
     Brown found last week that Wal-Mart did not change her original decision because the servers did not allege employment discrimination based on race or sex, under Title VII of the Civil Rights Act. Unlike a discrimination claim, the plaintiffs do not need to probe "the motive or intent on the part of any defendant," Brown said. "The answer to 'why,' which is critical to a Title VII case, is irrelevant here."
     "AppleIllinois argues on its current motion, as it did in resisting certification, that the dual jobs claim will require 'detailed examinations of evidence unique to each class member,'" the nine-page decision states. "But that is not so if, as appears to be the case, plaintiffs can demonstrate a practice - whether official or unofficial - of using tipped employees in unrelated tasks without separately recording the time and compensating them as required by the IMWL [Illinois Minimum Wage Law]."
     Brown also rejected AppleIllinois' argument that "the assessment of damages is not amenable to class-wide proof, citing the Supreme Court's rejection of 'Trial by Formula' in Wal-Mart."
     "The undisputed evidence on the certification motion showed that all financial and sales records for AppleIllinois restaurants were required to be maintained in a uniform electronic recordkeeping 'POS' system," she wrote. "Accordingly, there is a centralized source of information about the time and wage records for the class members."
     "In sum, plaintiffs here have submitted substantial evidence of exactly what the Supreme Court found to be missing in Wal-Mart: standardized conduct that could render AppleIllinois liable to the class members for the claims alleged," the decision states. "Plaintiffs have submitted proof that AppleIllinois systematically used employees compensated at the tip credit wage rate to perform untipped work.
     "What remains is a determination as to whether this company-wide practice violated the statutory rights of Plaintiffs and the class that they represent," the court concluded. "In other words, the next step is to answer the common question identified by this court on March 2, 2010; namely, whether these untipped duties were unrelated to the tipped occupations such that they were required to be compensated at a wage rate without a tip credit."