Barnhart v. Chesapeake Bay Seafood House Associates, L.L.C.

Filing 29

MEMORANDUM. Signed by Judge J. Frederick Motz on 3/31/2017. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BARNHART

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v.
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CHESAPEAKE BAY SEAFOOD HOUSE
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ASSOCIATES, L.L.C.
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Civil No. JFM-16-01277

MEMORANDUM
Plaintiff Morgan Barnhart (“Barnhart”), on behalf of herself and all other persons
similarly situated, brings this class and collective action lawsuit against Chesapeake Bay Seafood
House Associates, L.L.C. (“Chesapeake”) seeking overdue wages and money damages incurred
while plaintiff was employed as a server and bartender at defendant’s restaurants. Plaintiff
brings claims under the Federal Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.; the
Maryland Wage and Hour Law (“MWHL”), MD. CODE ANN. § 3-401, et seq.; and the Maryland
Wage Payment and Collection Law (“MWPCL”), MD. CODE ANN. § 3-501, et seq., for
defendant’s alleged failure to pay Barnhart and other employees the appropriate minimum wage.
(ECF No. 1). Pending is defendant’s motion to dismiss all claims or, in the alternative, for
summary judgment. (ECF No. 16). The motion is fully briefed, and no oral argument is
necessary. See Local Rule 105.6. For the reasons set forth below, defendant’s motion is denied.
BACKGROUND
Defendant Chesapeake operates approximately thirty-one franchised Chili’s restaurants in
Maryland and Virginia. (ECF No. 1 ¶ 2). Chili’s is a nationwide chain, and although its
locations are generally franchised to local owners, the restaurants offer a fairly uniform dining
experience. (Id. ¶ 41). During the relevant time period, for example, Chesapeake’s Chili’s
1

locations shared managers and allowed servers and bartenders to work at multiple restaurants.
(Id. ¶ 43–44). Across locations, Chesapeake pays its “tipped employees” - employees receiving
more than the statutory minimum amount in tips per month - less than the hourly minimum
wage, as permitted by the tip credit provisions of FLSA and MWHL. (Id. ¶ 3). Defendant
considers servers and bartenders tipped employees for the purposes of FLSA’s and MWHL’s tip
credit provisions. (Id.). Plaintiff Barnhart estimates that Chesapeake employed roughly 1,000
tipped employees in the state of Maryland throughout the limitations period. (Id. ¶ 21).
Chesapeake employed Barnhart as a tipped employee for over two years. (See id. ¶ 32).
Barnhart began her employment with Chesapeake in June 2013 as a server in defendant’s
Linthicum, Maryland location. (Id.). For a short portion of her employment, Barnhart also
worked a closing shift at Chesapeake’s restaurant in Arundel Mills. (Id.). Approximately one
year after beginning her employment with Chesapeake, Barnhart began working as a bartender as
well as a server. (Id. ¶ 34). Barnhart also worked periodically as a “QA,” an expeditor position
responsible for the final stages of food preparation. (Id. ¶ 35). As a tipped employee, Barnhart
was paid less than minimum wage at a rate of approximately $3.63 per hour when performing
her role as a server or bartender. (Id. ¶ 36).
Though Chesapeake paid Barnhart and other servers and bartenders according to the tip
credit provisions of FLSA and MWHL, Barnhart contends that she spent between thirty and fifty
percent of her shift time performing duties in which she did not interact with customers and did
not have the opportunity to earn tips. (Id. ¶ 39). According to Barnhart, she and other
individuals classified as “tipped employees” were required to spend a substantial portion of their
shifts attending to tasks such as setting up, stocking, and/or breaking down the soda, chip, and
soup machines, cleaning floors and restaurant surfaces, removing cigarette butts from the bushes

2

outside of the restaurant, preparing the restaurant for pest exterminators, and taking out the trash.
(Id. ¶ 40). Some of these non-tipped duties were specified in a checklist posted at Chesapeake’s
restaurant locations, and completion of the checklist by servers and bartenders was verified by
the managers. (Id. ¶¶ 46–47). Additionally, Barnhart alleges that servers and bartenders were
often required to arrive at the restaurants thirty minutes to an hour early and perform non-tipped
work before the restaurants were open to customers. (Id. ¶ 49). Servers and bartenders were also
required to perform non-tipped work after the restaurants were closed to customers. (Id. ¶ 50).
To Barnhart’s knowledge, Chesapeake did not have any sort of institutionalized internal
policy prohibiting tipped employees from performing certain types of non-tipped work unrelated
to their role or from performing excessive amounts of non-tipped work. (Id. ¶ 51). Furthermore,
Chesapeake did not track or record the amount of time servers and bartenders spent performing
tipped versus non-tipped work during their shifts. (Id. ¶ 52). According to Barnhart,
Chesapeake did not allow employees to clock-in at the full minimum wage rate when performing
non-tipped work, even though their point-of-sale time management system would have allowed
the defendant to easily record tipped and non-tipped time and adjust the wage accordingly. (Id.
¶¶ 53, 56–57).
Barnhart filed a class and collective action complaint in this court on April 28, 2016. The
complaint asserts three claims against Chesapeake: violation of Section 201, et seq. of the FLSA
(Count I), violation of Section 3-401, et seq. of the MWHL (Count II), and violation of Section
3-501, et seq. of the MWPCL (Count III). (Id. ¶ 1). 1 Chesapeake filed a motion to dismiss all

1

I do not, at this stage, render an opinion regarding the collective action issue under the FLSA or
plaintiff’s request for Rule 23 class certification under the MWHL and the MWPCL, as these
issues have not yet been fully briefed by the parties.
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claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for
summary judgment under Rule 56 on June 23, 2016. (ECF No. 16).
STANDARD
Chesapeake has filed a motion to dismiss Bales’ first amended complaint under Rule
12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil
Procedure 56(c). I consider this motion as a motion to dismiss under Rule 12(b)(6). 2

In

reviewing a motion to dismiss under Rule 12(b)(6) for failure to state a claim, the court “must
accept as true all of the factual allegations contained in the complaint” and “draw all reasonable
inferences in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011). The complaint must allege facts sufficient to “state a claim to
relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and
allow the court to “draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). The court is not, however, required to
accept the legal conclusions derived from the facts, and “[a] complaint that provides no more
than labels and conclusions or a formulaic recitation of the elements of a cause of action” is
insufficient to meet the pleading standard. Twombly, 550 U.S. at 555; see also Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (stating that the “mere recital of elements of a
2

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), a court may not generally consider
extrinsic evidence. Where, however, “a defendant attaches a document to its motion to dismiss,
‘a court may consider it in determining whether to dismiss the complaint [if] it was integral to
and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.’”
Am. Chiropractic Ass'n, Inc. v. Trigon Healthcare Inc., 367 F.3d 212, 234 (4th Cir. 2004) (citing
Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999)). An integral document is a
document that by its “very existence, and not the mere information it contains, gives rise to the
legal rights asserted.” Walker v. S.W.I.F.T. SCRL, 517 F.Supp.2d 801, 806 (E.D. Va. 2007)
(emphasis added). In addition to integral and authentic exhibits, on a 12(b)(6) motion the court
“may properly take judicial notice of matters of public record.” Philips v. Pitt Cnty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
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cause of action, supported only by conclusory statements, is not sufficient to survive a motion
made pursuant to Rule 12(b)(6)”). Generally, a motion to dismiss for failure to state a claim
“does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999); see also Tobey v.
James, 706 F.3d 379, 387 (4th Cir. 2013).
ANALYSIS
Barnhart uses the same alleged facts to support both her federal claim and her state law
claims. I will analyze plaintiff’s claim under the FLSA before turning to her parallel state claims
under the MWHL and the MWPCL.
I.

Barnhart’s claim under the FLSA
Plaintiff Barnhart asserts two alternative bases for relief under FLSA. 3 First,

Barnhart contends that she and other tipped employees were required to spend a significant
amount of time performing work that was unrelated to their roles as servers or bartenders, and
were thus working “dual jobs” as defined by FLSA regulations. (See ECF No. 1 ¶¶ 6, 70).
Because Barnhart was employed in a “dual job,” she is entitled to the full minimum wage for the
hours spent performing the unrelated duties. Second, Barnhart argues that even if the non-tipped
duties she performed can be construed as “related” to her occupation as a server or bartender, the
time spent performing these duties exceeded 20% of her weekly hours. (See id. ¶¶ 7, 71).
Accordingly, Barnhart claims, Chesapeake was not entitled to take advantage of the tip credit
provisions of FLSA for the time she spent performing non-tipped duties.
3

Plaintiff Barnhart originally alleged in her complaint that Chesapeake violated FLSA by failing
to inform her of its intention to utilize the tip credit provision. (ECF No. 1 ¶ 72). Defendant has
provided a copy of Barnhart’s employee tax form, which she signed acknowledging
Chesapeake’s tip credit policy. (ECF No. 16, Ex. A). Plaintiff has since stated that she does not
oppose dismissal of her failure to inform claim. (See ECF No. 19, p. 21). Accordingly, the
notice portion of Barnhart’s FLSA claim is dismissed.
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Defendant Chesapeake contends that Barnhart has not stated a “dual jobs” claim under
FLSA because Chesapeake only utilized the tip credit provision for her work as a tipped
employee and because any non-tipped duties she performed were directly related to her server
and bartender occupations. (See ECF No. 16, p. 3). Moreover, Chesapeake argues, Barnhart’s
“20% theory” regarding the quantitative limit on a tipped employees related non-tipped duties is
not a cognizable ground for relief under FLSA or relevant DOL regulations. (Id.). Chesapeake
claims that the 20% limitation is derived from a piece of DOL interpretive material that is
entitled to no deference by the courts and that such a limitation would be impracticable for
employers. (Id. at pp. 3, 19, 29).
a. Statutory framework
Section 206 of FLSA requires covered employers to pay all employees a minimum wage
for hours worked, unless the employee qualifies for a statutory exemption. See 29 U.S.C. §
206(a). Employers may, however, pay employees less than the federal minimum wage if the
employee is engaged in an occupation which regularly receives tips. See 29 U.S.C. § 203(m).
Section 203(t) defines a “tipped employee” as “any employee engaged in an occupation in which
he customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t). As
this court has explained, “[t]ipped employees . . . are required to receive at least the minimum
wage, but their employers are permitted to pay a direct wage of $2.13 per hour and then take a
‘tip credit’ to meet the $7.25 per hour minimum wage requirement.” Gionfriddo v. Jason Zink,
LLC, 769 F.Supp.2d 880, 893 (D. Md. 2011). In essence, FLSA’s requirements are satisfied
when the difference between the $2.13 paid to the employee and the $7.25 minimum wage is
made up for by the tips received by the employee. See id.; see also Dorsey v. TGT Consulting,
LLC, 888 F. Supp. 2d 670, 680 (D. Md. 2012). In order to utilize the tip credit loophole under

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the statute, “during the relevant time frame the employer [is] required to (1) inform the employee
that the tip credit was being claimed; and (2) allow the employee to retain all tips he or she
received . . . .” Dorsey, 888 F. Supp. 2d at 681 (quoting Arencibia v. 2401 Rest. Corp., 831 F.
Supp. 2d 164, 175 (D.D.C. 2011). The requirements for claiming the tip credit under the statute
are “strictly construed.” Id. (citing Copantitla v. Fiskardo Estiatorio, Inc., 788 F.Supp.2d 253,
287 (S.D.N.Y. 2011).
The Department of Labor (DOL) has issued a number of regulations clarifying the tip
credit requirements under FLSA. First, the DOL reiterates that an individual only qualifies as a
“tipped employee” within the meaning of the statute “when, in the occupation in which he is
engaged, the amounts he receives as tips customarily and regularly total more than $30 a month.”
29 C.F.R. § 531.56(a). “‘[C]ustomarily and regularly’ signifies a frequency which must be
greater than occasional, but which may be less than constant.” 29 C.F.R. § 531.57. Employers
may only take advantage of the tip credit for hours during which a given employee is engaged in
a tipped occupation. See 29 C.F.R. §531.59(b). Importantly, the DOL regulations also
distinguish between a situation in which a tipped employee spends part of his time performing
ancillary duties that are not themselves tip-producing but are directly related to his tipped
occupation, and one in which an employee is employed in a “dual job.” See 29 C.F.R. §
531.56(e). An employee is engaged in “dual jobs” if he essentially performs the duties of two
distinct occupations. See id. 4 If an employee is employed in a “dual job,” an employer may only
take the tip credit for the hours in which the employee is engaged in the tipped occupation. See

4

If, for example, an individual is employed as both a maintenance man as well as a waiter in a
hotel, he is performing “dual jobs” for a single employer. See 29 C.F.R. § 531.56. A
“counterman,” on the other hand, who is preparing his own short orders in addition to interacting
with and serving customers, is not engaged in a “dual job,” and is instead performing related
non-tip-producing duties in a single tipped occupation. Id.
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id. If, however, an individual is employed in a tipped occupation in which he spends part of his
time performing related duties that are not tip-producing, the performance of these ancillary
duties will not alter the individual’s overall status as a tipped employee, and an employer may
still utilize the tip credit provision. See id.
The DOL’s Field Operations Handbook provides further guidance on the “dual jobs”
provision. See U.S. Dept. of Labor Field Operations Handbook, § 30d00(f) (available at
https://www.dol.gov/whd/FOH/FOH_Ch30.pdf) (last updated 1/13/17). First, the Field
Operations Handbook (FOH) confirms that employers may take the tip credit for tipped
employees who spend some time performing related duties that are not themselves tip-producing.
Id. at § 30d00(f)(2). The guidance goes on, however, to place a clear quantitative limit on the
amount of related duties an employer is allowed to require. Id. at § 30d00(f)(3). The FOH
provides that “where the facts indicate that tipped employees spend a substantial amount of time
(i.e., in excess of 20 percent of the hours worked in the tipped occupation in the workweek)
performing such related duties, no tip credit may be taken for the time spent in those duties.” Id.
In sum, the FOH clarifies that employers are not allowed to take advantage of the tip credit in
two separate circumstances: (1) employees are employed in “dual jobs;” and (2) employees are
engaged in a single tipped occupation, but they spend more than 20% of their time performing
related duties that are not tip-producing.
b. Plaintiff’s “dual jobs” theory
Barnhart alleges that Chesapeake required plaintiff and other servers and bartenders to
perform a litany of tasks that are “unrelated” to their roles as tipped employees, and, as a result,
they are employed in “dual jobs.” (See ECF No. 1 ¶ 6, 70). Chesapeake contends that while
Barnhart and other tipped employees performed minor tasks that were not tip-producing, these

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tasks were directly related to their primary occupations as servers and bartenders. (See ECF No.
16, p. 14 (referencing https://www.onetonline.org/link/details/35-3031.00)). The FLSA,
Chesapeake argues, does not require employers to alter and individual’s status as a tipped
employee simply because they perform some duties ancillary to their tipped roles. (See id.). As
long as Barnhart was engaged in her occupation as server or bartender at all relevant times,
merely performing some non-tip-producing duties does not mean she was engaged in “dual
jobs.” (See id.).
The “dual jobs” provision of Section 531.56 recognizes the distinction between a tipped
employee performing tasks that are not themselves tip-producing but are related to their tipped
occupation, and a tipped employee who is spending time during their shift performing unrelated,
non-tip-producing tasks. See 29 C.F.R. § 531.56(e). While Section 531.56(e) does not provide
an exhaustive list of related versus unrelated tasks, it does provide some relevant examples. See
id. As discussed in footnote 3, supra, if, for example an employer engages an individual as a
maintenance employee and as a waiter, the employer is required to pay the employee the full
minimum wage for the portion of his time spent performing maintenance work. See id.
Conversely, a waitress who spends part of her time setting or cleaning up tables and occasionally
washing dishing or a “counterman” who takes a turn preparing his own short-orders is still
considered a “tipped employee” under FLSA, and can be paid the tip credit wage rate. See id.
Courts recognize “dual jobs” claims where plaintiffs sufficiently demonstrate that while engaged
by an employer as a tipped employee, they spent a portion of their time performing non-tipproducing tasks that were unrelated to their primary role and that more closely resemble tasks
traditionally performed in minimum wage occupations such as a janitor or expeditor. See, e.g.,

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Driver v. AppleIllinois, LLC, 890 F. Supp. 2d. 1008, 1030 (N.D. Ill. 2012); Mclamb v. High 5
Hospitality, 197 F. Supp. 3d 656, 662 (D. Del. 2016).
Barnhart has alleged in her complaint that she was required by Chesapeake to perform a
number of tasks that were not directly tip-producing on a regular basis. (See ECF No. 1 ¶ 40).
While many of the tasks Barnhart lists are similar to those identified by the “dual jobs”
regulation as being directly related to the role of a waitress, Barnhart’s list also contains a
number of duties that arguably qualify as unrelated to her tipped occupation. (See id.). Duties
such as “mopping and/or deck brushing restaurant floors” and “removing cigarette butts from the
bushes outside of the restaurant,” for example, are tasks that would ordinarily be performed by a
restaurant’s janitorial staff. Accordingly, Barnhart has, at the pleading stage, stated a plausible
claim for relief under FLSA’s “dual jobs” regulation.
c. Plaintiff’s “20% theory”
Barnhart claims that she spent between thirty and fifty percent of her hours during a
regular workweek performing tasks that, while potentially related to her roles as a server and
bartender, were not tip-producing. (See ECF No. 1 ¶ 39). Because the time she was required to
spend performing non-tip-producing tasks exceeded the quantitative limit imposed by the DOL’s
interpretive guidance, Barnhart contends, Chesapeake violated FLSA’s minimum wage
requirements. (See id. ¶ 21). Chesapeake argues that Barnhart’s “20% theory” is not actionable
as a matter of law because the FOH is merely internal guidance to investigators, the DOL’s
twenty percent limitation has repeatedly changed over time, and the FOH is not entitled to any
degree of judicial deference. (See ECF No. 16, pp. 15, 17, 19). Lastly, Chesapeake claims that
the FOH’s 20% limitation is both impracticable and unduly burdensome for employers. (See id.
at p. 29).

10

The core of the parties’ disagreement with respect to Barnhart’s 20% claim is how much
weight should be afforded the FOH. The Fourth Circuit has yet to address this specific question;
other courts, however, have examined the issue at length. In determining the level of deference
owed to the FOH 20% limitation, the Eight Circuit explained first that the DOL’s “dual jobs”
regulation was clearly entitled to Chevron deference. See Fast v. Applebee’s Int’l, Inc., 638 F.3d
872, 879 (8th Cir. 2011). 5 The dual jobs regulation, however, leaves important terms undefined,
and does not explain to employers or the courts how to determine if an employee is in fact
engaged in a “dual job.” See 29 C.F.R. § 531.56(e). The regulation fails, for example, to define
“related duties” or to elaborate on the impact of an employee performing related duties more
than “part of the time” or “occasionally.” See Fast, 638 F.3d at 877. With respect to the
deference owed the DOL’s subsequent interpretation of its “dual jobs” regulation in the FOH, the
Eighth Circuit noted that “Auer deference is appropriate for DOL interpretations of its own
regulations, where the regulations ‘give specificity to a statutory scheme the Secretary [of the
DOL] [i]s charged with enforcing and reflect[] the considerable experience and expertise the
Department of Labor ha[s] acquired over time with respect to the complexities of the Fair Labor
Standards Act.” Id. at 878 (quoting Gonzales v. Oregon, 546 U.S. 243, 256–57 (2006)). 6 In
concluding that the FOH’s 20% limitation was entitled to Auer deference, the court noted that the

5

Though the Eight Circuit did not engage in a detailed Chevron analysis, I believe the
defendant’s argument that the “dual jobs” regulation is not entitled to Chevron deference is
untenable. Though the exact language of the “dual jobs” provision was not in the original text of
the proposed rule, it is a logical outgrowth of the proposed rule. See Long Island Care at Home,
Ltd. V. Coke, 551 U.S. 158, 174 (2007). As plaintiff points out, the proposed rule clearly
addresses the distinction between tipped and non-tipped employees, and the “dual jobs” addition
simply addresses the scenario in which and individual performs in both a tipped and a non-tipped
role for the same employer. (See ECF No. 19, p. 11).
6
In Auer v. Robbins, the Supreme Court stated that the Secretary’s interpretation of its own
regulations “is . . . controlling unless plainly erroneous or inconsistent with the regulation.” 519
U.S. 452, 461 (1997).
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temporal limit was consistent with the language of the “dual jobs” provision, other FLSA
regulations, and the prior case law dealing with duties related to a tipped occupation. See id. at
880. Furthermore, while inconsistent interpretations over time may undermine the argument for
deference to a particular piece of agency guidance, see, e.g., Christopher v. Smithkline Beecham
Corp., 132 S.Ct. 2156, 2166 (2012), the DOL’s 20% position has remained, 7 with one brief
deviation, consistent for several decades, see Mclamb, 197 F.Supp. 3d at 663.
Though defendant points to a set of unreported cases out of the District of Arizona to
support the position that the FOH is not entitled to any deference and does not create a basis for
relief under FLSA, (See ECF No. 16, pp. 23–29 (citing Montijo v. Romulus Inc., No. CV-14-264PHX-SMM, 2015 WL 1470128 (D. Ariz. Mar. 31, 2015); Richardson v. Mountain Range
Restaurants LLC, No. CV-14-1370-PHX-SMM, 2015 WL 1279237 (D. Ariz. Mar. 20, 2015)),
these cases appear to be against the weight of authority. 8 In a District of Delaware opinion
denying a motion to dismiss that relied in part on the same set of Arizona cases, the court
explained that “the cases cited appear to be outlier in the current legal landscape, as a greater
number of jurisdictions have given deference to the sub-regulation in question.” McClamb, 197
F. Supp. 3d. at 663; see also Irvine v. Wild Dunes Mgmt, Inc., 106 F. Supp. 3d 729, 733 (D.S.C.
2015) (stating that the 20% rule has been “widely accepted by other courts”). Indeed, the
majority of courts that have considered the FOH’s construal of the “dual jobs” regulation have
deferred to the DOL’s interpretation and recognized plaintiffs’ claims under FLSA based on the

7

In January 2009, the DOL issued an Opinion Letter purporting to withdraw the 20% limitation.
See DOL Opinion FLSA 2009-23, Jan. 16, 2009, 2009 DOLWH LEXIS 27. The Opinion Letter
was, however, was withdrawn only six weeks later.
8
Chesapeake also relies in part on Pellon v. Business Rep. Int’l., 528 F. Supp. 2d. 1306 (S.D.
Fla. 2007). Pellon, however, was decided at the summary judgment stage and is therefore not
directly on point at this stage of the litigation.
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20% limitation. See, e.g., McClamb, 197 F. Supp. 3d. ; Irvine, 106 F. Supp. 3d; Driver, 890 F.
Supp. 2d.; Flood v. Carlson Restaurants, 94 F. Supp. 3d 572 (S.D.N.Y. 2015). 9
Chesapeake’s contention that the 20% limitation would be unduly burdensome and
unworkable is also flawed. Certainly, requiring Chesapeake to keep track of the time their tipped
employees spend performing tasks that are not tip-producing would require more vigilance, but it
would not, as defendant contends, require “perpetual surveillance,” (See ECF No. 16, p. 31).
Furthermore, distinguishing between tip-producing and non-tip-producing duties is not an overly
arduous task: tasks that involve direct customer interaction would fall squarely into the tipproducing category, and tasks that are not customer-facing would not. As the court in Irvine
observes, employers “assign duties and assess completion of those duties,” and it is no “real
burden on an employer to require that they be aware of how employees are spending their time
before reducing their wages 71%.” Irvine, 106 F. Supp. 3d at 734. Chesapeake can choose to
comply with the 20% limitation by hiring minimum-wage workers to perform the bulk of the
non-tip-producing duties or by implementing a system to keep track of the tasks performed by
tipped employees.
Barnhart has alleged that she spends between 30% and 50% of her work hours each week
performing duties that are not tip-producing, and she has provided a detailed list of these
additional responsibilities. (See ECF No. 1 ¶¶ 39, 40). Accordingly, at this stage, Barnhart has
stated a plausible claim for relief under FLSA. Defendant’s motion to dismiss plaintiff’s FLSA
claim is denied.
II.

Barnhart’s claims under the MWHL and the MWPCL

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Contrary to Chesapeake’s argument, the majority position is not undermined by the Supreme
Court’s decision in Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117 (2016). See, e.g.,
Romero v. Top-Tier Colorado LLC, No. 16-1057, 2017 WL 892340 (10th Cir. Mar. 7, 2017).
13

Maryland courts recognize that the MWHL is the “state parallel” of FLSA. Friolo v.
Frankel, 819 A.2d 354, 361 (Md. 2003). 10 Though the courts have not yet dealt with the
relationship between FLSA’s “dual jobs” provision and 20% rule and the state analogue, courts
have acknowledged that the state requirements directly track the FLSA requirements with respect
to the minimum wage and tipped employee provisions. See, e.g., McFeeley v. Jackson St.
Entm't, LLC, 825 F.3d 235, 245–46 (4th Cir. 2016) (indicating that the requirements to be met
for employers seeking to claim the tip credit were the same under both FLSA and
“corresponding Maryland law,” specifically Section 3–419 of the Maryland Code); see also MD.
CODE ANN., LAB. & EMPL. § 3-419; MD. CODE REGS. 09.12.41.19 (2017). Because Barnhart has
alleged facts sufficient at the motion to dismiss stage to demonstrate Chesapeake violated FLSA,
she has also alleged facts sufficient to demonstrate defendant violated the MWHL.
Furthermore, as this court has explained, “paying an employee less than minimum wage,
in violation of the FLSA and MWHL, constitutes an unlawful deduction” under the MWPCL.
Mould v. NJG Food Serv. Inc., 37 F. Supp. 3d 762, 774 (D. Md. 2014). When employers pay
employees less than minimum wage when they were not in fact entitled to utilize the tip credit
provisions of FLSA and the MWHL, they have violated their minimum wage obligations and
have also, necessarily, made an unlawful wage deduction in violation of the MWPCL. See id.
Accordingly, having concluded that plaintiff has plead facts sufficient to demonstrate
Chesapeake violated FLSA and the MWHL, I conclude that Barnhart has also plead facts

10

This court has also held, at the summary judgement stage, that a plaintiffs demonstration of
FLSA violations necessarily means plaintiffs have demonstrated parallel MWHL violations. See
Gionfriddo, 769 F. Supp. 2d at 895 (“The arguments propounded by Plaintiffs on this [MWHL]
count essentially mirror those made with respect to the FLSA . . . In light of the congruent
nature of the FLSA and the MWHL . . . this Court must conclude that the MWHL was also
violated as a result of [defendant’s] participation in the employee tip pool.”).
14

sufficient to demonstrate defendant violated the MWPCL. Chesapeake’s motion to dismiss
Barnhart’s claims under both the MWHL and the MWPCL is, therefore, denied.
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss is denied. A separate order
follows.

3/31/2017

/s/
J. Frederick Motz
United States District Judge

Date

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