Bohrer Brady, LLC

A Colorado federal judge ruled that Perry’s Steakhouse & Grille violated federal and state wage laws by including morning-shift employees in a servers’ tip pool even though the restaurant was closed to guests during much of their work time. The court found those employees were not “customarily and regularly tipped” because their customer interaction was minimal.

The court partially granted summary judgment to the servers, rejecting Perry’s arguments that morning staff had sufficient customer contact through private events, early arrivals, or overlapping shifts. He noted private lunches occurred only about 4% of the time and did not amount to meaningful interaction, and said the company relied too heavily on job titles and “front-of-house” status rather than actual duties.

The court left open for trial whether the parent company is an employer for workers outside Colorado, as well as issues of liability and damages.

Under the Fair Labor Standards Act, tips belong to the employees who earn them. Employers can require tip sharing only if specific rules are followed, and those rules depend on whether the employer takes a tip credit.

If the employer pays tipped employees less than the full minimum wage and uses tips to make up the difference: (1) only employees who are “customarily and regularly tipped” may be included in the tip pool (e.g., servers, bartenders); (2) managers and supervisors may never receive tips, directly or through a pool; (3) non-tipped employees (e.g., cooks, dishwashers, janitors, or workers with only minimal customer interaction) cannot share in the tips; and (4) employees must have meaningful, regular customer interaction—job titles alone don’t qualify.

However, if the employer pays all employees at least the full minimum wage in cash: (1) tip pools may include both tipped and non-tipped employees (such as cooks or dishwashers); (2) managers and supervisors are still prohibited from receiving tips.

Bottom line: tip sharing is legal under the FLSA, but who can be included depends on whether the employer takes a tip credit and whether the employees truly perform tipped work. Misclassifying employees in a tip pool is a common and costly violation.

Call the attorneys at Bohrer Brady if you believe you are the victim of improper tip pooling, or other wage theft. Bohrer Brady, LLC, 8712 Jefferson Hwy., Ste. B, Baton Rouge, LA 70810; (800) 876-3911; email: [email protected]; website:

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Bohrer Brady, LLC is Pleased to Announce $5,035,000 Wage and Hour Settlement

Bohrer Brady, LLC partnered with Getman, Sweeney & Dunn to represent home healthcare workers in a wage and hour collective/class action lawsuit against Avondale Care Group, LLC. Severino v. Avondale Care Group, LLC, No. 1:21-cv-10720 (S.D.N.Y.). The workers filed suit individually and on behalf of similarly situated home healthcare workers who worked 24-hour shifts. The workers claimed Avondale violated the Fair Labor Standards Act (“FLSA”) and New Your state laws by failing to pay wages, including overtime, for all hours worked. Avondale allegedly deducted time for sleep and meals when many home healthcare workers were unable to take breaks for sleep or meals due to the nature of the services provided and the care needs and demands of their patients. The workers further alleged that Avondale committed wage statement violations by not properly listing their actual hours worked on their paystubs. The workers sought unpaid wages, liquidated damages, statutory penalties, attorneys’ and costs.
After intense litigation, the parties reached a $5,035,000 settlement. Over 700 home healthcare workers participated in the litigation and settlement amounts averaged $4,400. The largest award to a single worker was more than $37,000.

Magistrate Judge Stewart D. Aaron granted final approval of the settlement on January 31, 2024. The settlement will become final thirty days thereafter. Settlement checks are expected to be mailed in mid-March.

Bohrer Brady, LLC represents workers who have been denied earned wages including overtime pay. If you feel you have not been paid all your earned wages or overtime, call the attorneys at Bohrer Brady, LLC for a free initial consult. You may be entitled to unpaid wages, liquidated damages, statutory penalties, attorneys’ fees and costs. Bohrer Brady, LLC, 8712 Jefferson Highway, Suite B, Baton Rouge, Louisiana 70809; Office: (225) 925-5297; Toll Free: (800) 876-3911; Text: (225) 247-4021; Email: [email protected]; Website: www.bohrerbrady.com.