Andrew Burger Aug. 10, 2016, 12:43pm


PITTSBURGH – Attorneys for Brinker International, the Dallas-based owner of casual dining restaurants including more than 800 Chili's Grill & Bar outlets, will need to respond to a class action lawsuit filed July 22 in U.S. District Court for the Western District of Pennsylvania.

Former Chili's waitress Nicole Augustine asserts that she and others employed by Brinker in Pennsylvania were paid less than the required minimum wage of $7.25 per hour. Augustine requested a trial by jury in the case, in which she is seeking unpaid wages, interest, liquidated damages and compensation for legal costs, as well as any additional relief the court deems appropriate.

Covering an estimated 100 food servers employed by Brinker from around 2012 to April 2014, the class action was filed online by attorneys Peter Winebrake, R. Andrew Santillo and Mark J. Gottesfeld of Dresher law firm Winebrake & Santillo, Another suit was filed in Tennessee by attorney Jerry Martin of Nashville-based Barrett Johnston Martin & Garrison.

In the class action lawsuit, Augustine alleges that Brinker violated FLSA and the Pennsylvania Minimum Wage Act (PMWA) by requiring servers to share tips with expediters while taking advantage of the state's ¨tip credit.¨

By law, Pennsylvania employers are required to pay employees a minimum wage of $7.25 per hour. Restaurant owners can pay a minimum $2.83 per hour to employees who earn at least $300 a month in tips and apply a maximum tip credit of $4.42 per hour towards meeting their legal minimum wage obligations.

"The general theory on which this case rests is that restaurant owners are allowed to pay less than minimum wage and fulfill their minimum wage obligations by allowing food servers to earn and keep tips," Winebrake & Santillo attorney and partner Peter Winebrake told the Pennsylvania Record.

"If the restaurant allows food servers to share those tips with other employees who don't typically interact with customers – in this case expediters – they are not allowed to apply the state tip credit."

Brinker in August 2014 settled a 10-year-long class action regarding wages and working conditions that made its way to the California Supreme Court. In a preliminary agreement subject to court approval, Brinker agreed to pay $56.5 million to a class of some 120,000 workers employed at Chili's and Maggiano's.

In its 2012 ruling, the California Supreme Court stated that businesses must provide employees uninterrupted 30-minute meal breaks, but that they are not required to ensure that they don't do any work during them.

Furthermore, the court warned employers that they must not "impede or discourage workers" from taking their breaks. The court also clarified state law regarding rest periods, ruling that employers must provide hourly employees one 10-minute rest period for every four hours worked or every major fraction thereof.

Brinker did not respond to requests for comment on the filing of Augustine's class action in Pennsylvania. Company executives did address the issue of workplace lawsuits in Brinker's 2015 annual report to shareholders, however.

"We have experienced and continue to expect adjustments in payroll expenses as a result of federal and state mandated increases in the minimum wage; we cannot be certain there will be no additional significant increases in the future," management wrote.

The report continued: "Enactment and enforcement of various federal, state and local laws, rules and regulations on immigration and labor organizations may adversely impact the availability and costs of labor for our restaurants in a particular area or across the United States. Other labor shortages or increased team member turnover could also increase labor costs."

In a case that may serve as a precedent, Winebrake & Santillo litigated a class action on behalf of food servers who alleged that that Red Robin franchise restaurant owner Lehigh Valley Restaurant Group (LVRG) violated the FLSA and PMWA by requiring them to share tips with food service expediters.

In March, U.S. District Court Judge James M. Munley for the Middle District of Pennsylvania granted final approval to a $1.3 million class-action settlement that Winebrake & Santillo reached with LVRG. Plaintiffs attorneys argued that the company violated the FLSA and PMWA by requiring food servers to contribute 3 percent of their gross sales to a tip pool that was distributed to expediters.

The class action Winebrake & Santillo filed on behalf of Augustine centers on a similar tip pool practice by Brinker at its Chili's restaurants. Regarding prospects for the class action Winebrake & Santillo has filed on behalf of Augustine, Winebrake said "We'll wait for Brinker to file their response and the litigation will proceed from there."

Organizations in this Story

U.S. District Court for the Western District of Pennsylvania Pittsburgh Division
700 Grant Street
Pittsburgh, PA 15219

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