Labor & Employment Law Daily Wrap Up, WAGE-HOUR—MINIMUM WAGE—N.D. Ill.: Employer denied motion to dismiss restaurant server’s wage suit alleging improper tip pool arrangement, (May 14, 2026)

By Ronald Miller, J.D.

When the employee raised complaints about the tip pooling policy to the owner and manager, he was first removed from the work schedule and subsequently fired.

A federal district court in Illinois denied an employer’s motion to dismiss a wage suit brought by a restaurant server who alleged he was fired after complaining about the operation of tip pool. The employee alleged that bussers worked primarily in the kitchen and did not regularly interface with customers such that their participation in the tip pool was unlawful because they did not customarily and regularly receive tips. It was reasonable to infer that the bussers did not qualify for inclusion in the tip pool. Accordingly, the court denied the employer’s motion as to the tip pooling and minimum wage claims (Morales-Sawyer v. TAK Group Investments LLC dba St. Patrick’s Restaurant , No. 25 CV 13104 (N.D. Ill. May 11, 2026)).

Tip pool. The plaintiff is a former employee of the employer’s restaurant, where he worked as a server. He was paid just over $9 an hour, plus tips. The employer pooled tips, meaning servers paid a percentage of food and alcohol sales to bussers, food runners, and bartenders. According to the employee the employer did not disclose this tip pooling policy to him when he was hired. Further, he claimed that bussers had nominal interactions with customers, worked primarily in the kitchen, and did not generally receive tips, making their inclusion in the tip pool improper.

Removed from schedule, fired. When the employee raised complaints about the tip pooling policy to the owner and manager, he was removed from the work schedule. Thereafter, he sent an email memorializing that conversation and asserting that his removal from the schedule violated federal law. He alleged that a bar manager told him he was removed from the schedule due to his complaints. Shortly thereafter, he was fired.

The employee alleged that the employer’s tip pooling policy allowed it to improperly avail itself of a “tip credit,” reducing the wages it had to pay its employees. He also claims that his forced participation in the tip pool caused his wage to dip below the minimum wage he was owed, and that he was fired in retaliation for raising complaints about the tip pooling policy. The employer filed a motion to dismiss the complaint.

Tip pooling claims. The FLSA and Illinois Minimum Wage Law (IMWL) allow some employers to pay certain employees less than the minimum wage if those employees earn the difference back in tips. An employer may also institute a tip pool, in which employees combine tips and then split the pot. However, a valid tip pool “must only include employees who ‘customarily and regularly receive tips.’”

In this instance, the court disagreed with the employer’s contention that the complaint failed to plead facts alleging that any employee in the tip pool did not customarily and regularly receive tips. The complaint plausibly alleged that bussers worked primarily in the kitchen and did not regularly interface with customers. While bussers were nominally assigned customer-facing duties, the employee alleged that they failed to execute those duties, forcing the employee to do nearly all customer-facing tasks such as clearing and resetting tables, while bussers worked on back of house duties away from customers.

Accepting these allegations as true, it was reasonable to infer that the bussers did not qualify for inclusion in the tip pool. At its core, whether bussers at the employer’s restaurant customarily and regularly received tips is a question of fact and therefore not properly resolved at this stage. Accordingly, the court denied the employer’s motion as to the tip pooling and minimum wage claims.

Retaliation claims. To state an FLSA retaliation claim, a plaintiff must plausibly allege that “he engaged in activity protected under the Act, his employer took an adverse employment action against him, and a causal link exists between the two.”

Here, the employee alleged that he complained both verbally and in writing about the tip pooling policy to the employer’s owner and manager, which is a protected activity. He further alleged that he was fired, which is an adverse employment action. Last, he has plausibly alleged causation by pleading that another employee told him that he was fired because he raised complaints about the tip pooling policy. Accordingly, the court denied the employer’s motion as to the employee’s FLSA retaliation claim.

However, “the IMWL does not contain an express private right of action for retaliatory discharge.” Rather, the statute provides a separate enforcement mechanism. Because no private right of action exists, amendment would be futile, so the court dismisses the employee’s IMWL retaliation claim with prejudice.

Wage claims. To state a minimum wage claim, a plaintiff must “provide sufficient factual context to raise a plausible inference [that] there was at least one workweek in which he or she was underpaid.” Here, the employee alleged that while he earned “approximately $9.00 and change per hour plus tips,” his “participation in the tip pool led [him] to be paid below minimum wage.” Drawing reasonable inferences in the employee’s favor, he plausibly alleged that he was underpaid for at least one work week. Accordingly, the court denied the employer’s motion to dismiss the employee’s minimum wage claims.

The case is No. 25 CV 13104.

Judge: Daniel, J.

Attorneys: Sophia Kennan Steere (Sulaiman Law Group) for Javon Morales-Sawyer. Sa’ad A. Muhammad (Power and Dixon) for TAK Group Investments LLC dba St. Patrick’s Restaurant and Tiffany Kamara.

Companies: TAK Group Investments LLC; St. Patrick’s Restaurant

Cases: WageHour MinimumWage Retaliation Discharge Procedure IllinoisNews