Applebee’s Servers Win Round Over ‘Dual Jobs’

CHICAGO (CN) - An Applebee's franchise must compensate servers and bartenders for services like dishwashing that they had to perform outside of their normal tipped work, a federal judge ruled.

AppleIllinois LLC operates 34 Applebee's Neighborhood Bar & Grill restaurants in Illinois.

It faces a federal class action from servers, bartenders and hostesses who claim that they often had to perform non-tipped work, such as dishwashing and cleaning. Those these activities sometimes accounted for 20 percent of a shift, AppleIllinois did not pay the workers minimum wage for the time spent on these duties.

The workers also claimed 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.

U.S. District Judge Geraldine Brown certified the class in March 2010, and reaffirmedcertification after the Supreme Court's decision in Wal-Mart Stores v. Dukes, finding that the class met the new standard for commonality.

Brown sided with the Applebee's workers again Monday in a ruling for partial summary judgment.

"The evidence demonstrates that AppleIllinois employees working at tip credit rates did those duties for much longer periods of time than can be fairly characterized as occasional, incidental or insignificant," the 50-page decision states. "Rather, employees working at tip credit rates were regularly used instead of minimum wage workers to do those tasks."

"AppleIllinois' executives themselves recognize that some tasks are plainly outside a tipped occupation," Brown added. "For example, both [Curtis] Smith, the president of AppleIllinois, and [Scott] Cortner, its vice-president of human relations, stated that tipped employees should 'never' mop floors or clean bathrooms."

However, "it is striking how often the current employees (in declarations that were submitted by AppleIllinois) describe their regular duties as including the very things that the executives state should not be done by tipped employees: cleaning bathrooms including toilets, sinks, mirrors and urinals; wiping down walls; polishing paneling with Pledge or lemon oil; mopping or scrubbing floors; and loading the dishwasher," the decision states.

"In addition, they report doing other tasks that are so far removed from a tipped occupation that they cannot be reasonably regarded as 'related' duties as that term is used in the dual jobs regulation, for example: washing windows; cleaning chandeliers; picking up trash in the parking lot; taking out garbage; restocking bathrooms; and dumping and refilling the 'sani' bucket," Brown wrote (parentheses in original).

"The court concludes that plaintiffs have demonstrated that, as a regular practice, AppleIllinois employed its tipped workers in 'dual jobs,' that is, in both tipped and non-tipped occupations," she added.

"Contrary to AppleIllinois' fears, enforcing the dual jobs regulation does not prohibit 'a team-oriented approach to serving customers.' It simply requires that when tipped employees are also required to perform the work of minimum wage workers, they get paid the minimum wage."

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