Despite a federal appeals court's recent ruling that restaurants aren’t necessarily breaking federal labor law by requiring tipped servers to perform tasks other than waiting tables, a Chicago federal judge has decided to allow servers at several suburban Buffalo Wild Wings franchise locations to sue their employers for that same reason.

On Sept. 8, U.S. District Judge Robert M. Dow Jr. refused to dismiss the class action lawsuit brought by plaintiff Katrina Soto against the owner of the Buffalo Wild Wings restaurants in Romeoville, Plainfield, Bolingbrook and Elmhurst, which are each operated under the corporate name “Wings R Us.”

According to court documents, Soto had worked from 2011-2015 at the Romeoville restaurant as a server. During that time, she alleged the restaurant’s owners required her and other servers to perform “duties outside the scope of their tipped occupation,” which she alleged violated state and federal wage and hour laws.

While the servers were paid only the minimum wage for tipped servers at all times, Soto said they were required to perform non-tipped tasks, including “cleaning bathrooms, dishwashing, general restaurant cleaning and trash removal.” Soto’s complaint argued the restaurant owners should have paid the servers the “full minimum wage” for the time they spent performing “non-tipped duties.”

Soto estimated more than 200 other workers should be included in her lawsuit.

The restaurant owners then asked the judge to dismiss the complaint, saying the non-tipped duties were closely enough related to the core duties of a server to allow them to not pay more than the tipped employee minimum wage rate.

Dow said courts have wrestled with this question in several cases. And he acknowledged in recent decisions from the U.S. Seventh Circuit Court of Appeals, judges there sided with employers on the question of related tipped and non-tipped duties.

Most recently, this summer, the Seventh Circuit found a chain of northwest suburban pancake house restaurants had not improperly required its servers to perform “dual jobs,” by requiring them to among other duties, slice and chop strawberries, mushrooms and lemons; mix jams, jellies, compote, applesauce and salsas; stock bread bins; brew tea and coffee; replenish other beverages and condiments; fill ice buckets; and perform some cleaning duties, including dusting and wiping down of burners.

Court documents indicated the servers would dedicate about 10-45 minutes per day to those side tasks.

However, at this stage in the case, Dow said such “high level of nuance … i.e., what types of tasks are and are not related to the occupation of restaurant server” is not required.  Instead, he said, “at the motion to dismiss stage, the Court’s only concern is whether Plaintiff has stated a plausible claim for relief.”

Further, he said, there remains a dispute over the relation of the side tasks to the servers’ actual jobs.

“In short, there is no controlling authority stating that, as a matter of law, cleaning bathrooms, dishwashing, general restaurant cleaning, and trash removal are non-tipped duties related to the occupation of a restaurant server,” Dow wrote. “While, with the help of discovery, Defendants might succeed in proving that some or all of the alleged tasks actually were related to Plaintiff’s tipped occupation or were otherwise negligible in comparison to Plaintiff’s tipped duties, Defendants’ arguments are insufficient to allow the Court to reach that conclusion at the motion to dismiss stage.”  

Soto is represented in the action by attorneys with the firm of Werman Salas P.C., and the Law Office of Jamie Golden Sypulski, each of Chicago.

Wings R Us is represented by the firm of Jackson Lewis P.C., of Chicago.

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Jackson Lewis P.C. Werman Salas

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