Categories: Tipped Employees

By Doug Weiner

In a recently reported case, Applebee’s’ servers alleged they spent a “substantial” amount of time performing non-tipped work, such as cleaning and maintenance, and should be paid the minimum wage 29 U.S.C § 206(A)(1)(c) of $7.25 rather than the direct wage 29 U.S.C. § 203(m) of $2.13 the FLSA 29 U.S.C. § 203(t) allows 29 C.F.R. § 516.28 tipped employees. Fast v. Applebee's International, Inc.

Applebee’s contends there is no “dual job”, 29 C.F.R. § 531.56(e) as the server’s primary duty is customer satisfaction, and cleaning and maintenance duties are related to the servers primary duty. The court held it was a question of law which duties were included in the definition of a “tipped occupation”, and questions of fact which duties employees actually performed, and the time spent performing them.

The court denied the restaurant’s motion for summary judgment, rejecting the argument that the duties of, for example, cleaning bathrooms are related to the duties of serving food. However, the court emphasized it was the servers’ burden to prove they had worked more than 20% of their time performing non tipped work. Myers v. Copper Cellar Corp., 192 F.3d 546 (6th Cir. 1999)

Certified for appeal to the Eighth Circuit is the district court's holding that Section 30d00(e) of the Department of Labor's Field Operations Handbook is persuasive authority for the holding that, where more than 20% of a tipped employee's time is spent on non tipped work, the employer cannot take the tip credit for that time, and must pay the full minimum wage committed to non-tipped work.

As an example of how fact specific each case must be analyzed, EBG wage & hour litigator Mark Beutler, in a case involving skycaps, successfully persuaded a court that incidental duties, such as bringing the bags to security were related to the tipped duty of serving the customer. In that case, the court found that all of the skycaps’ duties constituted tipped work, so there was no application of the 20% rule. Pellon v. Business Representation Int'l, Inc., 528 F. Supp. 2d 1306 (S.D. Fla. 2007). The court also held that to segregate the various tasks performed by skycaps, for purposes of assessing whether they were germane or not to the job of skycap, would be infeasible and require constant surveillance. The Pellon decision was later affirmed by the Eleventh Circuit.

Dual jobs may exist in many varieties. There may be servers who are asked to perform duties as ice sculpturs, or pastry decorators, or floral arrangers. There may be bussers who make salads or wash dishes between lunch and dinner. Employers are well advised to keep good records of the time employees spend performing each duty in a dual job circumstance. See 29 C.F.R. § 785.13 The court emphasized it was an employer’s duty to record the time spent in tipped and non-tipped work.  29 C.F.R. § 516.28

Douglas Weiner formerly served the U.S. Department of Labor as Senior Trial Attorney for the New York Regional Solicitor’s office for many years. He now exclusively represents management in wage hour and other employment matters.

Reply to this blog post for a discount to EBG’s CLE Hospitality Client Briefing

Back to Wage and Hour Defense Blog Blog

Search This Blog

Blog Editors

Related Services



Jump to Page


Sign up to receive an email notification when new Wage and Hour Defense Blog posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.