Tip pool participation under the FLSA, like classification of employees as exempt or non-exempt, turns on the duties of those participating in the tip pool, not their job titles. An example of this analysis is a recent Florida federal court decision rejecting a plaintiff server’s challenge to the inclusion in the tip pool at a Ruth’s Chris Steak House of food runners. Santana v. Rcsh Operations, 2012 U.S. Dist. LEXIS 17355 (S.D. Fla. Feb. 13, 2012).
Santana’s tip pool claim turned on his allegation that the 2-4 food runners who supported the 8-12 servers on any given shift at the restaurant were not properly tipped employees under the FLSA because the “majority of the food runners’ duties—assembling food on the trays and garnishing the food—were actually those of an expediter, taking place in the kitchen out of the presence of guests.” Id. at * 9-10. However, Santana’s evasive testimony regarding the frequency with which food runners perform service tasks (such as serving salad, bringing entrees to tables, or bringing other items to guests), coupled with affidavit evidence from those holding the food runner position and those supervising them as managers, created an evidentiary record from which Magistrate Judge Barry Seltzer concluded that “no reasonable jury could find that food runners at Ruth’s Chris had only de minimis interaction with customers.” Thus, the court held that the food runners were properly included in the tip pool.
Tip pool challenges continue, despite the employer victory in the Santana case and the recent pro-employer decision involving prominent D.C. eatery Marcel’s. Industry employers must continue to stay abreast of legal developments and analyze their tip practices accordingly to ensure compliance with applicable federal and state law.