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Hard Rock workers sue over tip pooling

Two Hard Rock Cafe employees have filed a lawsuit against the chain alleging that it improperly pooled tips and claimed tip credits in violation of federal labor laws and Florida’s state constitution.

The workers are seeking class-action status for the lawsuit, which argues that, because of the tip pooling, Hard Rock was not entitled to seek tip credits to offset portions of the minimum wages it was required to pay servers and bartenders between Jan. 14, 2006, and July 2009.

Officials of Orlando, Fla.-based Hard Rock Cafe International Inc. said in a statement Wednesday that “the allegations in the lawsuit do not accurately reflect how Hard Rock pays its employees” and that its pay practices “fully comply with the law.”

The Hard Rock officials said the company would defend itself in court and noted that the latest lawsuit “follows several favorable rulings for Hard Rock in a pending case in Orlando federal court making similar allegations.”

In many other tip pooling lawsuits in recent years, plaintiffs have sued restaurant employers to recover tips they claimed were illegally pooled under state laws or illegally distributed to managers or kitchen workers in violation of the federal Fair Labor Standards Act, or FLSA.

The FLSA is generally interpreted as limiting the sharing of pooled tips to only those employees who customarily are tipped by the public, causing controversy and litigation when some employers have distributed the collected gratuities among kitchen help or managers.

In the Florida case, the Hard Rock workers' attorneys contend that the chain violated the FLSA’s tip pooling provision by sharing gratuities with order expediters in the kitchen, who are not typically tipped by customers.

Attorneys for the plaintiffs said their lawsuit differs from most tip pooling litigation because it focuses on the state's minimum wage laws. Florida’s constitution permits employers to pay less than the state minimum wage to employees who receive tips “only if the eligibility requirements for the tip credit under the Federal Fair Labor Standards Act are met,” according to the attorneys.

“This case is unique because it is one of the first class-actions filed solely using the minimum wage provisions of the Florida constitution, which has a five-year statute of limitations for willful violations and provides for full recovery of the minimum wages and an equal amount of liquidated damages,” said plaintiffs’ attorney Sam J. Smith of Burr & Smith LLP in Tampa, Fla.

Hillary Schwab of Lichten & Liss-Riordan PC of Boston, another plaintiff’s attorney, added, “In this economy, servers and bartenders need all the tips they can get; Hard Rock should have known that a tip sharing arrangement that included kitchen staff violated Florida and federal law.”

The two employees named as plaintiffs worked at the Hard Rock Cafe at Universal Studios in Orlando, Fla., their attorneys said. They filed their lawsuit Tuesday in the Circuit Court in Orange County, Fla., and are seeking back pay and other damages.

Hard Rock Cafe International operates or licenses 169 venues worldwide.

Contact Alan J. Liddle at [email protected].

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