Bowe v. HHJJ, LLC

Filing 17

ORDER denying 10 motion to dismiss; adopting 15 Report and Recommendations. Signed by Judge Roy B. Dalton, Jr. on 1/4/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
YUVONNIA BOWE,
Plaintiff,
v.

Case No. 6:16-cv-1844-Orl-37KRS

HHJJ, LLC,
Defendant.
ORDER
This cause is before the Court on the following:
1.

Defendant’s Motion to Dismiss and Incorporated Memorandum of Law
(Doc. 10), filed October 31, 2016; and

2.

U.S. Magistrate Judge Karla R. Spaulding’s Report and Recommendation
(Doc. 15), filed December 13, 2016.
BACKGROUND

On September 27, 2016, Plaintiff initiated this state court action against Defendant
for, inter alia: (1) failing to pay her a minimum wage in violation of the Florida Minimum
Wage Act (“FMWA”) (Counts I and II); and (2) failing to pay her overtime wages in
violation of the Fair Labor Standards Act (“FLSA”) and the Florida Constitution (Counts
IV and V). (Doc. 2.) Defendant removed the action to this Court (Doc. 1), and moved for
dismissal of Counts I, II, and V (Doc. 10 (“MTD”)). After Plaintiff responded (Doc. 13), the
MTD was referred to U.S. Magistrate Judge Karla R. Spaulding, who issued a detailed
Report recommending that the Court deny the MTD. (Doc. 15 (“R&R”).) No objections
were filed and the time for doing so has now passed.

DISCUSSION
The parties’ dispute centers on whether Defendant properly applied a provision of
the FLSA known as the “tip credit.” (Doc. 15, p. 5.) Generally, employees receive a
minimum wage under the FLSA, see 29 U.S.C. § 206(a)(1)(c); however, an exception
exists for “tipped employees,” 29 U.S.C. § 203(m) (“Tipped Employee Exception”). The
Tipped Employee Exception permits an employer to pay a tipped employee 1 a lower wage
than the full minimum wage in certain circumstances. See 29 U.S.C. § 203(m). Whether
Defendant is entitled to reduce Plaintiff’s wages, depends on whether Defendant may
apply the Tipped Employee Exception to Plaintiff. 2
To implement the Tipped Employee Exception, the Department of Labor (“DOL”)
has issued regulations, recognizing that employees may be engaged in dual jobs for the
same employer—that is, an employee may perform both tipped and non-tipped activities
(“Regulation”). See 29 C.F.R. § 531.56(e). Further, the DOL prohibits employers from
applying the Tipped Employee Exception where a tipped employee spends more than
20% of his time performing general preparation work or maintenance (“20% Rule”). Dep’t
of Labor, Records, Minimum Wage, and Payment of Wages, FIELD OPERATIONS
HANDBOOK, ch. 30, § 30dd00(e) (2016), https://www.dol.gov/whd/FOH/FOH_Ch30.pdf.
I.

Counts I and V
With this background, the R&R recommends that the Court apply the 20% Rule to

determine whether Plaintiff’s allegations in Counts I and V are sufficient because: (1) the
1

A “tipped employee” is one who is engaged in an occupation in which he
customarily and regularly received more than $30 per month in tips. 29 U.S.C. § 203(t).
2 The Florida Constitution incorporate the FLSA’s Tipped Employee Exception.
See. Fla. Const. art. X, § 24(c). The FMWA implements Article X, § 24(c) of the Florida
Constitution. See Fla. Stat. 448.110(2).

2

Regulation is ambiguous on its face; and (2) as a result of the ambiguity, the DOL’s
20% Rule is a reasonable interpretation of the Regulation and is, therefore, controlling.
(Doc. 15, pp. 8–14 (citing Auer v. Robbins, 519 U.S. 452 (1997)).) In so finding, the R&R
recommends that the Court deny the MTD as to Counts I and V because Plaintiff has
adequately alleged that she spent more than 20% of her time engaged in non-tipped
activities, which is all that is required at this stage. (Id. at 14.)
II.

Count II
As to Count II, the crux of the parties’ dispute is whether Plaintiff’s non-tipped

activities, such as janitorial services, were “related” to her job as a server. (Id.) This
relationship is pivotal in determining whether Defendant was entitled to apply the Tipped
Employee Exception to Plaintiff’s non-tipped activities. (Id.) The R&R concludes that the
relatedness determination is “fact-sensitive and case-specific” and is, therefore,
inappropriate at the motion to dismiss stage. (Id. at 15.) Hence the R&R recommends
that the Court deny the MTD as to Count II. (Id.)
CONCLUSION
Absent objections, the Court has independently reviewed the R&R and agrees with
Magistrate Judge Spaulding. See 28 U.S.C. § 636(b)(1) (suggesting that a de novo review
is only required when a party objects to the proposed findings and recommendations). As
such, the Court finds that the R&R is due to be adopted in its entirety and that Defendant’s
MTD is due to denied.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

U.S. Magistrate Judge Karla R. Spaulding’s Report and Recommendation
(Doc. 15) is ADOPTED, CONFIRMED, and made a part of this Order.

3

2.

Defendant’s Motion to Dismiss and Incorporated Memorandum of Law
(Doc. 10) is DENIED.

DONE AND ORDERED in Chambers in Orlando, Florida, on January 4, 2017.

Copies:
Counsel of Record

4