Tip pooling doesn't meet minimum wage.

U.S. District Court in Texas rules class certified for bartender 'tip pooling' claims Article from: Lawyers USA Lawyers USA Article date: April 7, 2008 April 7, 2008

A bartender is entitled to proceed with a class action claiming the "tip pool" at various bars where he worked violated the Fair Labor Standards Act, a U.S. District Court in Texas has ruled in granting a motion for conditional class certification.

The bartender alleged that the bars where he worked implemented policies requiring bartenders to contribute 5 percent of their tips to their manager, despite paying bartenders only $2.13 per hour and taking a "tip credit" against their minimum wage obligations available under the Act. They were also required to pay cash to cleaning crews.

He claimed that the Act only permits tip sharing for distribution to "customarily tipped employees," which excludes managers and cleaning crews.

The bars argued that the plaintiff class should not be certified because there was more than one defendant and the other proposed plaintiffs were not "similarly situated."

But the court disagreed.

"The language of the statute is clear. An employer is obliged to comply with the prerequisites of announcing its intention to take the tip credit and allowing employees to keep all tips they earn except what is pooled for the benefit of customarily tipped employees. 'These prerequisites are strictly construed,' ...

"In the present case, [the bartender] contends that [the bars] did not comply with one of these prerequisites. Being that the prerequisites are strictly construed, [the bartender's] pleadings are sufficient to allege a violation of the [Act]," the court reasoned.

Further, "[d]efendants' argument that certification is inappropriate because they are separate entities [is] unconvincing. The Federal Rules of Civil Procedure allow joinder of defendants when a cause arises out of the same series of transactions and 'any question of law or fact common to all defendants will arise in the action.' The court concludes that joinder of [d]efendants is proper and does not preclude conditional certification of the class."

U.S. District Court for the Western District of Texas. Bernal v. Vankar Enterprises, Inc., No. SA-07-CA-695. March 24, 2008. Lawyers USA No. 9939548.

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"U.S. District Court in Texas rules class certified for bartender 'tip pooling' claims." Lawyers USA. Dolan Media Company MN. 2008. HighBeam Research. 8 Mar. 2009 <http://www.highbeam.com>.

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