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Eldridge v. OS Restaurant Services, LLC

United States District Court, M.D. Florida, Tampa Division

May 18, 2017




         THIS CAUSE comes before the Court upon Defendant's Motion to Dismiss Counts I and II (Dkt. 6) and Plaintiff's Response in Opposition (Dkt. 8). The Court, having reviewed the motion, response, and being otherwise advised in the premises, concludes that the motion should be denied.


         This is an action for unpaid wages under Florida and Federal law. During the relevant time, Defendant OS Restaurant Services, LLC (“OSRS”) employed Plaintiff Robert Eldridge as a server and bartender at an Outback Steakhouse restaurant located in St. Petersburg, Florida. OSRS classified Eldridge as a tipped employee within the meaning of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), and paid him the subminimum wage that Florida law permits an employer to pay a tipped employee.

         In Counts I and II of his complaint, which are the claims at issue in OSRS' motion to dismiss, Eldridge alleges that OSRS violated the Florida Minimum Wage Act (“FMWA”) (Count I) and the Florida Constitution Article X § 24 (Count II) by unlawfully applying the tip credit against the minimum wage rate paid to him for “side work” tasks in excess of twenty percent of his total working time. Eldridge describes the side work tasks as those tasks that related to the tipped occupation but were not, standing alone, directed toward producing tips. Specifically, the complaint lists these tasks as follows:

a. Bar set up assignments: Stocking and icing milk and cream; Stocking coffee, tea, bottled drinks; Brewing coffee and tea; Stocking glasses, straws, napkins, coffee cups and saucers; Cutting lemons, limes, and bar fruit; Putting garnishes on ice such as lemons and limes; Cleaning, adjusting, and connecting beer kegs; Replacing empty CO2 tanks with back-up canisters; Replacing syrup containers for soda machines; Cleaning soda dispenser nozzles; Washing dirty glassware behind bar; Polishing glassware; Setting up or putting away bar mats; Performing inventory checks or “facing” bottles.
b. Table set up, break down, and cleaning projects: Cleaning and wiping the wait station; Cleaning and wiping table tops; Cleaning and wiping chairs and booths; Cleaning and wiping menus; Aligning and straightening chairs; Taking down or putting up chairs; Setting tables - silverware, plates, glassware, napkins, caddies; Stocking sugar, sweeteners; Refilling salt and pepper; Cleaning condiment holders; Stocking or filling ketchup or table sauces; Rolling silverware; Polishing silverware, organizing, or moving silverware to front of house.
c. Maintenance and janitorial undertakings: Placing trash cans in designated areas; Checking restrooms for cleanliness and supplies; Wiping water from sinks in restrooms; Dusting lamps, shelves, or picture frames in dining room; Performing general cleaning; Stocking printer paper, when back-up rolls were needed; Checking entry and wait area floors, and cleaning if necessary; Checking floors and sweeping and mopping if necessary; Washing dishes. d. Undesignated skeleton crew duties to maintain restaurant performance to save the defendant on overhead and labor costs.

(Dkt. 2 at ¶¶ 25, 43). Eldridge claims that OSRS should have compensated him the full minimum wage for the time he spent performing more than twenty percent of his time on these non-tipped tasks.

         OSRS' motion to dismiss argues that the Court should reject the Department of Labor's (“DOL”) twenty percent rule. OSRS urges the Court to ignore nearly every case that has decided this issue. Indeed, although the Eleventh Circuit has not yet addressed the twenty percent rule, the Eighth Circuit and numerous district courts, including the Honorable Susan C. Bucklew in this district, have applied the twenty percent rule. The Court agrees with this majority view and will therefore deny OSRS' motion.


         Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true, and view the facts in a light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, unlike factual allegations, conclusions in a pleading “are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). On the contrary, legal conclusions “must be supported by factual allegations.” Id. Indeed, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).


         I. The ...

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