Elizondo v. Perry's Restaurants LTD et al

Filing 48

REPORT AND RECOMMENDATIONS re 37 Motion for Partial Summary Judgment filed by Phylisha Martinez, Daniel Elizondo. Signed by Judge Susan Hightower. (dm)

Case 1:21-cv-01055-RP Document 48 Filed 05/22/23 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DANIEL ELIZONDO and
PHYLISHA MARTINEZ,
Plaintiffs
v.
PERRY’S RESTAURANTS LTD
d/b/a PERRY’S STEAKHOUSE AND
GRILLE and CHRISTOPHER V.
PERRY, individually,
Defendants

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Case No. 1:21-cv-01055-RP

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Now before the Court are Plaintiffs’ Joint Motion for Partial Summary Judgment, filed
March 29, 2023 (Dkt. 37); Defendants’ Response, filed April 19, 2023 (Dkt. 43); and Plaintiffs’
Reply, filed May 1, 2023 (Dkt. 46).1
This is one of eight cases filed in this Court2 against Defendants Perry’s Restaurants LTD and
Christopher Perry alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201,
et seq. Plaintiffs allege that Defendants violated 29 U.S.C. § 206(a) by paying them a subminimum
hourly wage and do not meet the FLSA tip credit exception, which permits employers to pay less

1

By Text Order entered March 30, 2023, the District Court referred the motion to this Magistrate Judge for
report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and
Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of
Texas.
2

Seven have identical records: Nos. 1:21-cv-01053, 1:21-cv-01054, 1:21-cv-01055, 1:21-cv-01056, 1:21cv-01057, 1:21-cv-01058, and 1:21-cv-01060. The eighth case is Paschal v. Perry’s, No. 1:22-cv-00027RP, a collective action in which the District Court granted certification of certain of Plaintiffs’ side work,
uniform and equipment, and tip pool claims on May 16, 2023. All evidentiary citations in this Report and
Recommendation are to the docket in Martinez v. Perry’s Rest. Ltd., No. 1:21-cv-01053 (W.D. Tex.).

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than the general minimum wage to a “tipped employee.” 29 U.S.C. § 203(m). Plaintiffs contend
that Defendants do not qualify for the tip credit because they did not allow Plaintiffs to retain all
their tips and required Plaintiffs to contribute 4.5% of their tips to an illegal tip pool; incur and pay
for business expenses; perform non-tipped work unrelated to their tipped occupation; and perform
non-tipped work exceeding 20% of their time each workweek. Plaintiffs also allege that the Perry’s
tip pool was unlawful because it included bussers and food runners, even if they were not staffed
for a shift, and that tips earmarked for bussers were not distributed to them.
Plaintiffs in the seven individual cases now move for partial summary judgment on
Defendants’ liability for violating § 206(a) by paying them below the general minimum wage
without satisfying the requirements for taking a tip credit, and for violating § 203(m) by requiring
them to “kick back” a portion of their wages to Defendants.
I.

Summary Judgment Standard

Summary judgment will be rendered when the pleadings, the discovery and disclosure
materials, and any affidavits on file show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute over a material fact is “genuine” if the evidence is such that a reasonable jury
could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all
inferences drawn from the record in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. A court
“may not make credibility determinations or weigh the evidence” in ruling on a motion for
summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see
also Anderson, 477 U.S. at 254-55.
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Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586.
Mere conclusory allegations are not competent summary judgment evidence, and thus are
insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and
unsupported speculation also are not competent summary judgment evidence. Id. The party
opposing summary judgment must identify specific evidence in the record and articulate the
precise manner in which that evidence supports its claim. Adams v. Travelers Indem. Co. of Conn.,
465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficient to
establish the existence of an element essential to its case and on which it will bear the burden of
proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
II.

Analysis

Plaintiffs argue that the Court should grant partial summary judgment because Perry’s violated
the tip credit and has no evidence to contradict one or more of the following: (1) Defendants did
not permit Plaintiffs to retain all tips; (2) Defendants exercised unlawful control over Plaintiffs’
tips; (3) Defendants did not fully distribute all tips from the tip pool solely among employees
engaged in customarily and regularly tipped duties; and (4) Defendants took a tip credit and paid
Plaintiffs $2.13 an hour to perform nontipped duties. Dkt. 39 at 20. Defendants respond that
Plaintiffs have not shown that they are entitled to partial summary judgment on any of their claims.
A. Individual Defendant Christopher Perry
Defendants contend that Plaintiffs offer no evidence or argument in support of partial judgment
against individual Defendant Christopher Perry. Dkt. 45 at 10. The Court agrees that there are no

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facts supporting individual liability for Christopher Perry and recommends that summary judgment
against him be DENIED.
B. Uniform and Equipment Claim
Plaintiffs point out that Defendants have the burden to prove their entitlement to the tip credit,
an affirmative defense. They also contend that it is “undisputed that Plaintiffs paid for uniforms
(e.g. shirts, vests, non-slip dress shoes, dry cleaning), tools (e.g. pepper mills, pepper mill holsters,
crumbers, server books, ink pens, wine openers, black and silver sharpies, permanent markers,
lighters, wine keys, flashlights), and other items needed to work at Perry’s.” Dkt. 39 at 23.
Plaintiffs argue that these deductions violated the FLSA tip credit and anti-kickback provisions.
Defendants respond that the FLSA imposes two requirements for an employer to take a tip
credit: the tipped employee must be (1) “informed by the employer of the provisions of this
subsection,” and (2) allowed to retain all tips except for the pooling of tips among employees who
“customarily and regularly receive tips.” Dkt. 45 at 27 (quoting § 203(m)(2)(A)). Defendants also
argue that the FLSA generally prohibits employers from shifting the costs of uniform and
equipment to an employee if doing so reduces the employee’s pay below minimum wage, but this
rule is “conceptually distinct from the tip credit rule.” Id. at 26.
1. Burden to Prove Tip Credit Defense
Plaintiffs argue that Defendants “violated the tip credit as a matter of law because Plaintiffs
paid for uniforms, tools, and other non-203(m) items and kick-backs.” Dkt. 49 at 5. Defendants
respond that the FLSA uniform/equipment rule “is a generally applicable rule that applies to all
employees, whether or not an employer relies on the tip credit. Plaintiffs simply allege that being
required to bear the costs of certain items means that Perry’s did not pay them at the $7.25 per
hour minimum wage rate.” Dkt. 45 at 16 n.2. Therefore, Defendants argue, Plaintiffs bear the
burden of proof on their uniform and equipment claim. Because the parties dispute who has the
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burden of proof on that claim, the Court addresses this issue before reaching the merits of
Plaintiffs’ motion for partial summary judgment.
The FLSA requires employers to pay employees a minimum wage. 29 U.S.C. § 206(a).
Employers must pay employees the wages to which they are entitled “finally and unconditionally
or ‘free and clear’” and may not require employees to “kick-back” a portion of their wages
“directly or indirectly” to the employer. 29 C.F.R. § 531.35. An employer who requires an
employee to provide “tools of the trade which will be used in or are specifically required for the
performance of the employer’s particular work” violates the FLSA if the cost cuts into the
employee’s minimum wage. Id. Kickbacks are not illegal per se, but are impermissible when such
deductions deprive an employee of the federally mandated minimum wage or overtime pay.
Cudnik v. W.L. York, Inc., No. H-20-2998, 2021 WL 3674972, at *2 (S.D. Tex. Feb. 5, 2021).
Minimum wage is $7.25 per hour, but the FLSA has an exception that permits employers to
pay less than the general minimum wage – $2.13 per hour – to a “tipped employee” as long as the
employee’s tips make up the difference between the $2.13 minimum wage and the general
minimum wage. Montano v. Montrose Rest. Assocs., Inc., 800 F.3d 186, 188 (5th Cir. 2015) (citing
§ 203(m)). This exception is called the “tip credit.” To qualify for the tip credit, employers must
(1) inform employees of the provisions of § 203(m), and (2) allow employees to retain all tips
received, except that tip pooling is permitted among employees who customarily and regularly
receive tips. Id. at 188 & n.3; Bernal v. Vankar Enters., Inc., 579 F. Supp. 2d 804, 807-08
(W.D. Tex. 2008). Because the tip credit is an affirmative defense to a minimum wage claim, it is
the employer’s burden to prove that the credit applies. See Barcellona v. Tiffany Eng. Pub, Inc.,
597 F.2d 464, 467 (5th Cir. 1979).

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Plaintiffs conflate the tip credit defense with their uniform and equipment claim. The Court
agrees with Defendants that the tip credit defense does not place the burden on them as to
Plaintiffs’ claim that they had to “kick-back” part of their wages through uniform and equipment
expenses. While the Court also agrees with Plaintiffs that Defendants have the burden to show that
each of its deductions was lawful, this inquiry is separate from the tip credit analysis.
The cases Plaintiffs cite do not alter this conclusion. Plaintiffs rely on Ettorre v. Russos
Westheimer, Inc., 2022 U.S. App. LEXIS 7295 (5th Cir. 2022) (unpublished) (per curiam), but in
that case, the Fifth Circuit addressed the district court’s findings on the defendant’s tip credit and
linen fee separately. Plaintiffs also rely on Lopez v. Fun Eats & Drinks, LLC, No. 3:18-CV-1091X, 2021 WL 3502361, at *6-7 (N.D. Tex. July 16, 2021), R. & R. adopted, 2021 WL 3493496
(N.D. Tex. Aug. 9, 2021), in which the court found that the defendant could not use the tip credit
provision where it required employees to pay for uniforms, cash register shortages and walked
tabs, and meals above their actual cost, bringing plaintiffs’ wages below the $2.13 hourly
minimum. The Court is persuaded by other courts that have separated these inquiries. See, e.g.,
Pedigo v. Austin Rumba, Inc., 722 F. Supp. 2d 714, 721 (W.D. Tex. 2010) (addressing uniform
deductions as failure to pay minimum wage claim separately from tip credit defense); Reich v.
Priba Corp., 890 F. Supp. 586, 596-97 (N.D. Tex. 1995) (treating unlawful uniform deductions as
failure to pay minimum wage claim separate from tip credit defense).
2. Evidence
An employer may not deduct from employee wages the cost of facilities that primarily benefit
the employer if such deductions drive wages below the minimum wage. Arriaga v. Fla. Pac.
Farms, L.L.C., 305 F.3d 1228, 1236 (11th Cir. 2002) (citing 29 C.F.R. § 531.36(b)). Whether
expenses qualify as “primarily for the benefit of the employer” turns on “whether the employmentrelated cost is a personal expense that would arise as a normal living expense.” Id. at 1243.
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Uniforms are an expense that primarily benefits the employer. See Ayres v. 127 Rest. Corp., 12
F. Supp. 2d 305, 310 (S.D.N.Y. 1998). Although the term “uniform” is not defined under federal
law, the Department of Labor has suggested the following guiding principles:
If an employer merely prescribes a general type of ordinary basic
street clothing to be worn while working and permits variations in
details of dress the garments chosen would not be considered to be
uniforms. On the other hand, where the employer does prescribe a
specific type and style of clothing to be worn at work (e.g., where a
restaurant or hotel requires a tuxedo or a skirt and blouse or jacket
of a specific or distinctive style, color, or quality), such clothing
would be considered uniforms.
FIELD OPERATIONS HANDBOOK § 30c12(f)(1)(a)-(b) (2016).3
Plaintiffs submit evidence that Defendants required servers to have particular clothing items,
equipment, and certifications to perform their jobs. This evidence includes the following
deposition testimony from David Freeman, Perry’s corporate representative, and eight Plaintiffs:
•

Servers are required to meet uniform requirements and have a pepper mill and holster
and a crumber (Freeman Tr. at 66:6-69:23, Dkt. 40-3 at 54-55);

•

Perry’s deducted the cost of replacement vests, pepper mills, and crumbers from
Plaintiff Weston Clarke’s paycheck and he independently bought a wine opener, pens,
dress shoes, and pants (Clarke Tr. at 106:14-111:25, Dkt. 40-4 at 152-53);

•

Perry’s does not provide any part of the required uniform, and Plaintiff Paul Neuman
had to purchase food handler and Texas Alcoholic Beverage Commission (“TABC”)
certifications, server books, and additional crumbers (Neuman Tr. at 51:1-22, 53:9-25,
and 56:4-16, Dkt. 40-5 at 6-7);

•

Plaintiff Ashleigh Scott had to purchase crumbers and food handler and TABC
certifications (Scott Tr. at 135:21-136:23, 140:11-24, Dkt. 40-6 at 49-50);

•

Plaintiff Daniel Elizondo had to have a server book, flashlight, wine key, nonslip shoes,
dry-cleaned white shirt and black slacks, food handler and TABC certification, and
pens and markers, and was charged for replacements (Elizondo Tr. at 91:12-92:14,
95:6-19, 102:4-16, and 103:8-104:9, Dkt. 40-5 at 24-25, 27);

3

https://www.dol.gov/agencies/whd/field-operations-handbook/Chapter-30#B30c12 (last visited May 19,
2023).

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•

Servers had to buy their own vests, pepper mills, aprons, pants, nonslip shoes,
crumbers, server books, flashlights, pens, Sharpies, wine keys, and food handler and
TABC certifications and renewals (Sharif Tr. at 61:8-25, 62:1-12, and 100:3-101:20,
Dkt. 40-5 at 41, 50-51);

•

Plaintiff Ryan Dickman had to provide his own wine key, pens, and server book, and
purchase a replacement pepper mill from Perry’s (Dickman Tr. 86:25-88:6, 90:1-91:6,
Dkt. 40-5 at 91-92);

•

Perry’s charged Plaintiff Evelyn Castaneda Martinez for tools “frequently,” and she
had to purchase pens, Sharpies, and wine keys (Martinez Tr. at 54:17-55:14, 56:15-25,
and 58:4-20, Dkt. 40-6 at 60-61); and

•

Plaintiff John Vilbig had to pay for his apron, vest, crumber, server book, flashlight,
pens, shirt, pants, and nonslip shoes at the start of his employment (Vilbig Tr. at 64:1565:2, 66:13-15, 67:10-12, 69:20-23, and 70:6-8, Dkt. 40-6 at 102-04).

Perry’s uniform policy specifies the type and color of required shirts, bottoms, belts, socks,
shoes, and bow ties for men. See Dkt. 40-1 at 52-53. The policy states that shirts and slacks must
be “pressed” for each shift and that employees must provide a “wait book, wine key, non-logo
lighters, (4) non-logo black click pens, black marker, [and] crumber,” as well as a bottle opener
for cocktail servers. Id. Plaintiffs submit authorization forms for uniform deductions stating that
the cost of replacement equipment is to be deducted from Plaintiffs’ paychecks. Authorization
forms for Plaintiff Jamie Linn, who does not provide deposition testimony, show that the cost of
replacement items was deducted from Linn’s paycheck four times. Dkt. 50-7 at 52-55. Plaintiffs
also testified that they paid for replacement tools while at work. Martinez Tr. at 54:17-58:20,
Dkt. 40-6 at 60; Neuman Tr. 51:14-52:3, Dkt. 40-5 at 6; Elizondo Tr. 91:21-92:7, Dkt. 40-5 at 24;
Sharif 62:1-12, Dkt. 40-5 at 41; see also Clarke Tr. 107:18-108:24, Dkt. 40-4 at 152 (testifying
that he was both charged while at work and that deductions were taken from his paycheck).
Defendants submit declarations from General Managers Anthony Garcia, Greg Grady, and
Rebecca Munns. The General Managers state that Perry’s provided newly hired servers with vests,
a pepper mill and holder, and a crumber. Dkts. 46-1 at 12, 46-2 at 11, 46-3 at 13. They aver that
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they provided employees with free replacements and charged servers only in rare instances. Id.
They also state that they have no recollection of charging Plaintiffs for replacements. Id. The
General Managers state that Perry’s did not require flashlights and that servers already owned
items such as lighters, and they deny that servers were required to have their shirts dry cleaned. Id.
The Court finds that a fact issue exists as to whether the clothing items Perry’s required
employees to wear constituted uniforms so that Defendants must reimburse Plaintiffs for the
expense. See Ayres, 12 F. Supp. 2d at 310 (denying defendant’s motion for summary judgment
because although most items could be “worn as part of an employee’s ordinary wardrobe,”
employees who forget items were not permitted to work and dry-cleaning costs were imposed);
see also DEP’T OF LABOR, WAGE & HOUR DIV., OP. LETTER FLSA 2020-12 (stating that employers
need not reimburse employees for white or button-down shirts with dark pants); DEP’T OF LABOR,
WAGE & HOUR DIV., OP. LETTER FLSA 2008-4, p. 2 (May 15, 2008) (stating that dark-colored,
non-slip shoes were not a “uniform” under the FLSA). Nor have Plaintiffs established that
Defendants’ policy required their clothes to be dry cleaned. See Smith v. Pizza Hut, Inc., 694
F. Supp. 2d 1227, 1230 (D. Colo. 2010) (stating that “the law is clear that employers are only
required to reimburse employees if the uniforms require some kind of special treatment, i.e. drycleaning”).
As to the vests, pepper mills and holders, and crumbers, the Court finds that Defendants fail to
raise a genuine issue of material fact as to liability. Plaintiffs offer evidence that Perry’s had a
policy of charging servers for replacements. Dkt. 50-7. Rather than disputing this policy, the
General Managers state that they do not recall charging Plaintiffs for replacement items, that it
was their practice to provide free replacements, and that they “only deviated from this in the rare
case where the server was ‘egregiously losing stuff,’” Dkt. 46-1 at 12 (Garcia); “had lost an excess

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number of such items in a short period of time, indicating that his or her conduct was beyond
careless,” Dkt. 46-2 at 11 (Grady); or “had requested replacements every week for an extended
period of time,” Dkt. 46-3 at 13 (Munns). Garcia states that the procedure to be used when charging
for uniform or tool replacement costs “was to fill out a form to HR.” Dkt. 46-1 at 13. Whether
employees paid for replacements while at work or the costs were deducted from their paychecks,
the Court finds that there is no genuine issue of material fact as to Defendants’ liability for the
uniform and tool replacement policy.
Defendants also argue that Plaintiffs have not established that they were charged unlawfully
for vests, pepper mills and holders, and crumbers. Defendants rely on Department of Labor
guidance that employees may not be required to pay for items that primarily benefit the employer,
even where the loss is due to “work-related negligence.” DEP’T OF LABOR, WAGE & HOUR DIV.,
OP. LETTER FLSA 2008-10 (Oct. 24, 2008). Defendants offer no evidence that any losses exceeded
work-related negligence. In addition, the employer has the burden to maintain records of
deductions made from employees’ wages for two years. Id. (citing 29 C.F.R. § 516.2(a)(10)).
Defendants offer no records to dispute Plaintiffs’ claimed deductions.
For these reasons, the Court recommends that the District Court grant summary judgment to
Plaintiff Daniel Elizondo on his claim that Perry’s is liable for unlawfully deducting from his
wages the cost of aprons, vests, pepper mills and holders, and crumbers.
For the remaining items, such as wine keys, pens, flashlights, lighters, cash, and server books,
the Court finds that Defendants have raised a genuine issue of material fact as to whether these
arise as a “normal living expense” and thus do not primarily benefit the employer. Arriaga, 305
F.3d at 1243.

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Finally, some Plaintiffs submit evidence that they had to purchase TABC certifications and
food handler’s licenses. Neuman Tr. at 56:4-16, Dkt. 40-5 at 7 (stating that he had to purchase
TABC certification and food handler’s license to work at Perry’s); Elizondo Tr. at 103:22-104:5,
Dkt. 40-5 at 27 (same); Sharif Tr. at 101:13-20, Dkt. 40-5 at 51 (same); Keefe Tr. at 86:6-18; 87:114, Dkt. 40-5 at 72 (stating that she had to renew her TABC certification and food handler’s license
to work at Perry’s); Ferracioli Tr. at 42:24-44:23, Dkt. 40-6 at 2 (same); Scott Tr. at 140:11-24,
Dkt. 40-6 at 50 (same).
Defendants admit that Perry’s required servers to have TABC certificates and submit no
evidence disputing that food handler’s licenses were required. See, e.g., Freeman Tr. at 68:5-20,
Dkt. 40-3 at 55 (testifying that servers are required have TABC certifications); Henderson Tr. at
97:1-99:9, Dkt. 40-4 at 25-26 (same). While Defendants argue that these are occupational licenses
required by the state of Texas and not for the benefit of Perry’s, courts have found that professional
licenses primarily benefit the employer, not the employee. See Lockett v. Pinnacle Ent., Inc., 408
F. Supp. 3d 1043, 1047-48 (W.D. Mo. 2019) (“Contrary to Defendants’ assertions, it does not
matter that a gaming license is mandated by State law rather than the employer.”); Williams v.
Secure Res. Commc’n Corp., No. 11-cv-03986, 2013 WL 4828578, at *6 (S.D.N.Y. Sept. 10,
2013) (granting summary judgment on claim that defendant violated FLSA by deducting cost of
security guard license because “[p]rofessional licensing costs arise out of employment rather than
the ordinary course of life” and primarily benefit employer). The Court finds that the TABC
certifications and food handler’s licenses primarily benefit the employer. Because Defendants do
not dispute that servers had to pay for TABC certifications and food handler’s licenses, the Court
recommends that the District Court grant summary judgment to Plaintiff Daniel Elizondo on his

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claim that Perry’s violated the FLSA by requiring him to incur these expenses, which caused his
wages to drop below minimum wage.
C. Tip Pool Claims
Next, Plaintiffs argue that Defendants’ tip pool was unlawful because (1) tip pool funds were
not distributed “pursuant to an agreement among Plaintiffs,” and (2) the tip pool included
employees who were not customarily and regularly tipped: bussers, barbacks, food runners, service
well bartenders, hosts, and “off-hour” employees. Dkt. 39 at 24. Defendants respond that
mandatory tip pool arrangements and distribution are valid. They also argue that all employees
who participated in the tip pool customarily and regularly received tips.
1. Customarily and Regularly Tipped Employees
The Court first addresses Plaintiffs’ argument that Defendants distributed tips to employees
who were not eligible to participate in the tip pool and thereby forfeited the tip credit. Plaintiffs
argue that bussers, barbacks, food runners, service well bartenders, and hosts engaged in
significant amounts of work that did not produce tips and are not eligible to participate in the tip
pool while doing such work. Defendants respond that the eligibility of these employees to
participate in the tip pool is determined by the duties they perform over the course of a week, and
that this issue should be submitted to a jury.
An employer may not claim a tip credit unless the tip pool is limited to employees who
“customarily and regularly receive tips.” 29 U.S.C. § 203(m). Because the phrase “customarily
and regularly receive tips” is ambiguous, the Department of Labor’s administrative materials are
useful in giving the phrase meaning. Montano, 800 F.3d at 190. The agency gives these examples
of occupations that “customarily and regularly receive tips” and those that do not: Waiters,
bellhops, counter personnel who serve customers, busboys or server helpers, and service
bartenders generally are tipped occupations, while janitors, dishwashers, chefs or cooks, and
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laundry room attendants are not. Id. at 190-91 (citing U.S. DEP’T OF LABOR, FIELD OPERATIONS
HANDBOOK § 30d04(a), (c) (1988)). An employee’s title does not determine whether the employee
customarily and regularly receives tips. Id. at 191.
The central difference between employees who are traditionally
tipped and those who are not is that the former work primarily in the
front of the house where they are seen by and interact with
customers, while the latter work primarily or exclusively in the back
of the house.
Id. at 193 (citing Roussell v. Brinker Int’l, Inc., 441 F. App’x 222, 231 (5th Cir. 2011)). A court
“must consider the extent of an employee’s customer interaction” and “whether the employee is
engaging in customer service functions.” Id.
Plaintiffs argue that “it is unlawful to pay an employee from the tip pool for any time the
employee spends engaged in nontipped duties not related to their tipped occupation.” Dkt. 49 at
12. Plaintiffs rely on the “dual jobs” regulation in 29 C.F.R. § 531.56(e). The dual jobs regulation
prohibits an employer from paying an employee the tipped rate of $2.13 per hour for hours the
employee spends performing unrelated work which does not produce tips, such as where a server
also works as a maintenance person.
Section 531.56(e) does not affect which employees “customarily and regularly receive tips” or
alter the Montano analysis. See Driver v. AppleIllinois, LLC, 890 F. Supp. 2d 1008, 1035-36
(N.D. Ill. 2012) (stating that “the tip pool regulation and the dual jobs regulation regulate two
different practices and answer two different questions”). The cases cited by Plaintiffs hold that an
employee may not be paid at the tipped rate when performing work unrelated to their tip-producing
work, and that an employer cannot turn an employee into one who customarily and regularly
receives tips simply by allowing them to receive tips. See Marsh v. J. Alexander’s LLC, 905 F.3d
610, 633 (9th Cir. 2018) (holding that employee stated claim for full hourly wages for hours spent
in non-tipped occupation); Barrera v. MTC, Inc., No. SA-10-CA-665-XR, 2011 WL 3273196, at
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*9 (W.D. Tex. July 29, 2011) (holding that employees were not eligible tip pool recipients simply
because employer allowed them to share tips regularly).
Applying Montano, the Court finds that Plaintiffs are not entitled to summary judgment on
their tip pool claim. In their declarations, Defendants’ three General Managers describe the
responsibilities of bussers, barbacks, food runners, service well bartenders, and hosts at the
restaurants they managed. The General Managers aver:
•

Bussers’ primary responsibility was collecting items from guests’ tables. Tasks such as
cleaning or checking bathrooms, picking up trash outside, and mopping or vacuuming
were split among several bussers and took 20 minutes or less in a 6- to 7-hour shift.

•

Barbacks served as bussers for the bar. Barbacks were always in the sight of guests, but
also helped monitor the restroom during their shift, which took a few minutes, and
performed tasks at the end of their shift, which took less than 30 minutes.

•

Food runners’ primary responsibility was to run food and other items to tables and
perform certain “table-side” activities. Food runners spent about 30 to 45 minutes
performing closing activities in a 6- to 6.5-hour shift.

•

Service well bartenders generally worked behind the main bar, except during busy
shifts, when they were moved to create room for bartenders. The General Managers
estimate that service bartenders spent 20 to 90 minutes cleaning during their shifts.

•

Hosts’ primary responsibility was to greet guests, show them to their tables, and handle
reservations and phone calls. Hosts performed minimal cleaning tasks, such as wiping
down menus or checking bathrooms.

Dkts. 46-1 at 7-9, 46-2 at 7-9, 46-3 at 7-9. The General Managers also state that when barbacks or
bussers performed other tasks, such as food preparation, dishwashing, or deep cleaning, they
clocked in under a different job code. Dkts. 46-1 at 7-8, 46-2 at 7, 46-3 at 7.
Plaintiffs argue that undisputed evidence shows service well bartenders were “confined to
working in the kitchen during their busiest shifts”; bussers spent significant time on cleaning
activities; food runners performed janitorial and food preparation duties daily; and hosts spent
several hours per week checking the women’s bathroom. Dkt. 49 at 16. The Court finds that this
does not establish that these employees were “back of the house” employees, did not engage in a
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significant degree of customer interaction, or were not performing customer service functions.
Montano, 800 F.3d at 193.
Plaintiffs also submit evidence disputing the tasks performed, time spent on non-tip producing
tasks, and extent of customer interaction. This evidence shows that material questions of fact
remain. See Plewinski v. Luby’s Inc., No. CV H-07-3529, 2008 WL 11389210, at *4 (S.D. Tex.
Oct. 1, 2008) (denying defendant’s motion for summary judgment because fact issues remains as
to tasks performed and typical amount of time allotted to each task). Therefore, the Court
recommends that summary judgment be denied as to Plaintiffs’ claim that employees who did not
“customarily and regularly receive tips” participated in the tip pool.
2. Mandatory Tip Pool
Plaintiffs also argue that Defendants violated the tip credit because they “unilaterally decide[d]
how to distribute the tip pool, including using the tip pool to fund the flat hourly wages paid to
[their] other employees.” Dkt. 39 at 25. Defendants respond that the Court should not consider this
claim because Plaintiffs failed to plead it. Dkt. 45 at 29. Defendants further argue that there is no
requirement that tip pools be distributed pursuant to an agreement among the participants, and that
employees who received wage guarantees are eligible tip pool participants.
First, the Court finds that the tip pool was not invalid because Defendants “unilaterally”
decided how the tip pool was distributed. The relevant statute, 29 U.S.C. § 203(m), “expressly
permits the ‘pooling of tips’ and does not bar employers from requiring tip pooling.” Kilgore v.
Outback Steakhouse of Fla., Inc., 160 F.3d 294, 303 (6th Cir. 1998); see also Roussell v. Brinker
Int’l, Inc., No. H-05-3733, 2008 WL 2714079, at *17-18 (S.D. Tex. July 9, 2008) (discussing
difference between mandatory and voluntary tip pools). An employer “may require” an employee
to contribute to a tip pool, but “must notify its employees of any required tip pool contribution
amount.” 29 C.F.R. § 531.54(c). Although Plaintiffs argue that they “had no input or knowledge
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that their tips were being used to fund the fixed hourly wages Defendant was obligated to pay its
other employee,” Plaintiffs expressly state that they are not pursuing a claim that Defendants failed
to provide notice of the tip pool arrangement. Dkt. 39 at 6 n.3, 27.
Second, Plaintiffs argue that Defendants used tip pool funds to pay wages to other employees.
Dkt. 39 at 27. Plaintiffs do not dispute Defendants’ representation that they made a wage rate
commitment to certain tip pool recipients, which set a compensation “floor” for those employees.
Dkt. 45 at 34. Plaintiffs rely on Cross v. 440 Corp., No. 2:06-CV-0191, Dkt. 93 (N.D. Ga. Sept. 24,
2008), in which the court held that using servers’ tips to pay employees’ fixed salaries violated the
FLSA requirement that tip pool funds be distributed only to those who customarily and regularly
receive tips. The Court finds no support for the contention that guaranteeing certain tip pool
participants a minimum wage rate removes those employees from the definition of those who
“customarily and regularly receives tips.”
3. Weekly Distribution
Plaintiffs also argue that Defendants violate the tip credit “by distributing tips to pay employees
who were indisputably not involved whatsoever in serving the customer who left the tip,” in that
they used tips to pay wages of employees who were not present at the restaurant during the shift
when the customer who left the tip dined. Dkt. 39 at 37. Plaintiffs rely on the Fifth Circuit’s
statement that the goal of the inquiry into which employees are eligible tip pool participants is to
“determine[e] the customer’s intent.” Dkt. 39 at 37 (quoting Montano, 800 F.3d at 193). Plaintiffs
reason that: “Absent any interaction between the customer and the employee, the customer simply
could not have intended to tip an off-hour employee.” Dkt. 49 at 16.
It is undisputed that Defendants distribute tip pool proceeds to employees “pro rata, based
upon the hours they worked each week in one of the positions eligible for tip pool money compared
to the total hours worked by all tip pool recipients for that week.” Dkt. 45 at 14. Plaintiffs have not
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shown as a matter of law that the FLSA prohibits weekly distribution of tip pool funds. 29 U.S.C.
§ 203(m)(2)(A)).4
D. Side Work Claim
Finally, Plaintiffs argue that Defendants violated the FLSA by requiring servers to perform
non-tipped duties unrelated to their tipped occupation and spend more than twenty percent of their
time performing related, non-tipped duties, while compensating them at the tipped hourly rate.
Plaintiffs also argue that under the burden-shifting framework established by Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 686-87 (1946), they may provide testimony approximating
the time spent performing non-tipped duties. Defendants respond that there is contradictory
evidence on whether Plaintiffs were assigned unrelated side work and the extent of related side
work they performed.
Under the FLSA, an employer may rely on the tip credit exception for a tipped employee who
spends a portion of time performing work that does not produce tips but directly supports tipproducing work. 29 C.F.R. § 531.56(f). Time spent on supporting work must not exceed
twenty percent of the employee’s work. Id. A server’s directly supporting work includes “dining
room prep work, such as refilling salt and pepper shakers and ketchup bottles, rolling silverware,
folding napkins, sweeping or vacuuming under tables in the dining area, and setting and bussing
tables.” Id. An employer may not rely on the tip credit exception for work that does not directly
support tip-producing work, such as preparing food and cleaning the kitchen or bathrooms. Id.

The Court construes the phrase “off-hour” in the cases Plaintiffs cite not as referring to employees who
do not work a particular shift when a tip is left, but those working when customers are not present. See, e.g.,
Kilgore v. Outback Steakhouse of Fla., Inc., 160 F.3d 294, 301 (6th Cir. 1998) (distinguishing hosts from
“off-hour employees like an overnight janitor” who have no direct customer interaction).
4

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1. Related Side Work
An employee has the initial burden to establish that they worked hours for which they were
not properly paid, but if an employer does not maintain records of the employee’s time, the
employee can “show the amount and extent of that work as a matter of just and reasonable
inference.” Fast v. Applebee’s Int’l, Inc., 638 F.3d 872, 882 (8th Cir. 2011) (cleaned up).
Plaintiffs submit substantial evidence that Perry’s required them to perform related side work
accounting for more than twenty percent of their time during each workweek. Plaintiffs argue that,
under Mt. Clemens, they are “entitled to provide testimony that approximates—by a just and
reasonable inference—the time they spent performing nontipped duties.” Dkt. 39 at 43. Defendants
respond that Plaintiffs “cannot show, as a matter of law, that they performed side work in scope,
or to a sufficient degree in time, that they were effectively performing a separate job when they
performed such side work.” Dkt. 45 at 13. In their declarations, Defendants’ General Managers
dispute the number of tasks each server was assigned and the overall amount of time spent
performing related side work. Dkt. 46-1 at 10-12; 46-2 at 9-11; 46-3 at 10-12. They assert that side
work tasks were split among employees and servers were not required to perform “opening” and
“closing” side work in the same shift. Dkts. 46-1 at 10, 46-2 at 9. They also state that little to no
side work was performed while the restaurants were open. Dkts. 46-1 at 9, 46-2 at 11, 46-3 at 11.
The General Managers estimate that side work generally took less than 45 minutes per shift, and
that no server spent more than an hour performing side work. Dkts. 46-1 at 11, 46-2 at 10-11, 463 at 11.
The Court finds that there are genuine issues of material fact as to whether Defendants required
Plaintiffs to spend more than twenty percent of their time on untipped related duties. Accordingly,
the Court recommends that summary judgment be denied on Plaintiffs’ related side work claim.

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2. Unrelated Side Work
The Court also finds that there are genuine issues of material fact as to whether Plaintiffs were
required to perform unrelated side work. Plaintiffs submit testimony that they had to do unrelated
side work, including cleaning toilets, cooking food, or taking out the trash. Defendants’ three
General Managers assert that servers did not perform this unrelated side work. They admit that
servers had to place applesauce on ramekins brought to guests’ tables and warm bread in the oven,
but dispute that Plaintiffs were required to perform all other tasks. The Court finds that placing
applesauce on ramekins and warming bread relate to the servers’ occupation. These tasks cannot
form the basis of an FLSA violation unless they exceed twenty percent of servers’ time. Because
Defendants provide evidence disputing Plaintiffs’ accounts of the other tasks they were required
to perform, the Court finds that genuine issues of material fact exist and recommends that summary
judgment on Plaintiffs’ unrelated side work claim should be denied.
III.

Recommendation

For these reasons, this Magistrate Judge RECOMMENDS that the District Court GRANT IN
PART and DENY IN PART Plaintiffs’ Joint Motion for Partial Summary Judgment (Dkt. 37).
The Court recommends that the District Court GRANT summary judgment as to Defendant
Perry’s Restaurants LTD d/b/a Perry’s Steakhouse and Grille’s liability for the cost of Plaintiff
Elizondo’s licenses and aprons, vests, pepper mills and holders, and crumbers. The Court
recommends that summary judgment be DENIED in all other respects.
If the District Court accepts these recommendations, Plaintiffs’ following claims will remain:
(1) All Plaintiffs’ claims that Defendants violated the FLSA’s minimum wage requirements
and are not entitled to the tip credit because they did not allow Plaintiffs to retain all their
tips and required Plaintiffs to contribute 4.5% of their tips to an illegal tip pool, perform
non-tipped work unrelated to their tipped occupation, and perform non-tipped work
exceeding 20% of their time each workweek;

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(2) All Plaintiffs’ claims that Defendants violated the FLSA’s minimum wage requirements
by requiring them to pay for clothing and other items and incur dry-cleaning expenses;
(3) License expenses for Martinez;
(4) Expenses for aprons, vests, pepper mills and holders, and crumbers for Martinez; and
(5) All claims against Christopher V. Perry, individually.
It is ORDERED that this case be REMOVED from this Magistrate Judge’s docket and
RETURNED to the docket of the Honorable Robert Pitman.
IV.

Warnings

The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written
objections to the proposed findings and recommendations contained in this Report within fourteen
(14) days after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the proposed findings and recommendations in the Report and,
except upon grounds of plain error, shall bar the party from appellate review of unobjected-to
proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C.
§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED on May 22, 2023.

SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE

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