Employers who maintain a tip pool are likely aware that, depending on the employer’s state of operation and prevailing law, such a tip pool typically can consist only employees who are both “customarily and regularly” tipped and who are not themselves “employers” or those with employer authority. Last year, we discussed a court’s recognition of the evolution of this analysis with respect to the tip pool participation of a maître d‘ in a fine dining establishment. In the same vein, Judge Philip A. Brimmer of the District of Colorado recently granted summary judgment to the defendant on a server’s claim that he should not have been forced to pool tips with an employee who performed the function of “expeditor” in the defendant’s restaurant. Giuffre v. Marys Lake Lodge, LLC, 2012 U.S. Dist. LEXIS 140506, 13-14 (D. Colo. Sept. 28, 2012).

In challenging the expeditor’s tip pool participation, the plaintiff alleged that the expeditor “would stand in the kitchen, separated from customers, and check food quality on plates, make sure the order matched the ticket and place food on trays,” and argued that this was not a service function because it did not involve interaction with guests. The defendant countered with evidence that the expeditor job included “checking the plates as they come out from the kitchen cooks to make sure they match the tickets; placing the food on the serving trays; taking the serving trays to the tables and delivering the food to customers; checking in with customers about their meals and exchanging food if the customer has [a] complaint; refilling beverages; chatting with customers; and assisting the wait staff in any other way necessary.” The court rejected the plaintiff’s assertion that the expeditor’s participation in the pool was improper, finding his entirely uncorroborated statements regarding the expeditor’s duties insufficient to survive summary judgment.

Further, consistent with the plaintiff’s concession that the expeditor “served as a liason [sic] between the servers and the other kitchen staff,” the Court observed that “interaction with customers is not necessarily the sine qua non of the analysis [regarding customarily tipped],” noting that the plaintiff had provided no evidence that, absent an expeditor, the functions in question would not have been performed by servers. Id. at * n. 4 (citingTurner v. Millennium Park Joint Venture, LLC, 767 F. Supp. 2d 951, 954-55 (N.D. Ill. 2011) (“So in real world terms it is readily understandable that employees receiving tips directly from customers may agree to share tips when they believe that the employees with whom they share help them to serve the customers better and more fully and thus to obtain additional tips and sweeten the pot for everyone. Just so with a silverware roller, who performs work that would otherwise be a waitperson function.”)).

The court also rejected the plaintiff’s unsupported assertion that the employee who often served as expeditor separately “was a [housekeeping] manager and thus not permitted to take part in the tip sharing arrangement regardless of her position in the restaurant.” Because the plaintiff identified “no evidence that [the expeditor] exercised any managerial duties in relation to him,” under the FLSA’s economic realities test, there was “no evidence supporting plaintiff's claim that he was required to share tips with his ‘employer.’”

Finally, the court also granted summary judgment to the defendant on the plaintiff’s claim that he did not receive notice of the tip credit, based on the undisputed evidence that the restaurant posted the requisite FLSA poster. Id. at *15-18.

United States and state Department of Labor guidance do not address all of the service duties performed in contemporary restaurants, particularly the more specialized functions applicable in many fine dining settings. Giuffre is a welcome victory to employers who argue for flexibility in application of the DOL’s rules. All hospitality employers must review tip and wage practices for compliance, and stay abreast of changes in the law and litigation trends.