Labor & Employment Law Daily Wrap Up, WAGE-HOUR—MINIMUM WAGE—S.D. Ohio: Tipped employees prevail as to employer’s liability for dual jobs claim, (Sep 4, 2025)

By Ronald Miller, J.D.

For tipped employees, employers may claim a tip credit against payment of the full minimum wage, using a portion of an employee’s tips to satisfy the employer’s minimum wage obligations to the employee.

Tipped employees of a Buffalo Wild Wings franchisee were entitled to summary judgment in part as to the employer’s liability on their dual jobs claim, ruled a federal district court in Ohio. The court found that daily janitorial and maintenance work performed during shift change and closing constituted time spent performing unrelated work, in violation of the FLSA. As such, summary judgment was granted in favor of the employees on the issue of liability under the Dual Jobs Regulation (Pender v. Flying S. Wings, Inc., No. 2:21-cv-04292 (S.D. Ohio Sept. 2, 2025)).

Tipped employees. This case arises from the payment of servers and bartenders who are tipped employees at four Buffalo Wild Wings restaurants operated by a franchisee. On August 31, 2021, an employee brought a suit alleging violations the FLSA, Article II, Section 34A of the Ohio Constitution, and the Ohio Minimum Fair Wage Standards Act.

Under the FLSA employers are allowed to pay tipped employees a “tip wage” of less than the minimum wage when the tipped employees’ tips make up the difference between the tip wage and the minimum wage. Here, the employee alleged that the employer’s pay practices regarding tipped employees violated the FLSA, Article II, Section 34A of the Ohio Constitution, and the Ohio Minimum Fair Wage Standards Act.

Point of sale system. Servers and bartenders generally recorded their working hours using the restaurant’s Point of Sale (POS) system. The POS system allowed employees to clock in under different job classifications, including “bartender,” “cashier,” “meeting,” and “server.” Generally, employees understood that if they arrived before opening, they were expected to clock in under the “meeting” code.

However, not all employees had a consistent experience in instructions to clock in and out. Some report that the “meeting” option was not always available, that they were told to not use the meeting code, or that they were otherwise discouraged from using the meeting code. Others did not recall receiving any training during orientation about clocking in under meeting or transitioning in and out of the “server” classification.

Dual jobs. Employees often performed multiple duties during their shifts. For example, those hired as a server were, at times, performing the duties of cashier, dishwasher, or a greeter. Not all job classifications were consistently accessible within the POS system at all times. When an employee selected the “cashier” classification, they were compensated at the full minimum wage rate. By contrast, classifications such as “server,” “bar server,” and “bartender” were associated with a tipped wage rate. Selecting the “meeting” classification resulted in compensation at the full minimum wage rate.

Side work. Tipped employees performed various types of work that the parties call “side work,” including opening work, shift change work, “outs” work, and closing work. Opening work involved preparing the restaurant and was paid at a full minimum wage. When servers changed shifts, there were specific tasks to be completed as the server finishes a shift while the restaurant is still open. Servers often completed this work under their server code. “Outs” work, essentially shift change work, is done when a server station is closed. Finally, at closing, severs completed work much like the outs work.

Tip credit. Some employees reported receiving training on the tip credit when they transitioned into roles as servers or bartenders. However, managers testified that they did not recall any formal policy requiring employees to be informed of anything beyond their hourly wage.

In November 2021, the employer began using a tip credit notification form and several employees admitted receiving the form. Additionally, some employees admitted to seeing posters with tip credit information in the restaurants on the employee bulletin boards.

Further, the named plaintiff and all of the opt-in plaintiffs admitted that they received more than $30 per month in tips and none of them could identify any time when they received less than the minimum wage during a pay period.

Expenses. Servers and bartenders were issued two uniform shirts, an apron, and server books, without cost, but employees were allowed to purchase more shirts if they chose to do so. Servers were also required to wear dark pants and nonslip shoes, which the restaurant did not provide and which the employees could wear off the job.

Wage claims. The employee alleged that the employer failed to pay collective members at the full minimum wage rate in violation of the FLSA’s minimum wage requirement. She further alleged that members of the collective were required to incur expenses and pay for various tools and business-related costs, which constituted unlawful “kick-backs.” Additionally, she alleged that the employer violated the Ohio Wage Act by failing to pay members of the collective the full minimum wage in accordance with the Act. On March 13, 2023, the court granted the employee’s motion for conditional certification.

On November 18, 2024, the employer filed a motion for summary judgment and decertification of collective action, and the employee filed a motion for partial summary judgment.

Minimum wage notice. Both parties moved for summary judgment on the employee’s claim that the employer failed to comply with the tip credit requirements by failing to inform employees of the tip credit provisions.

In order to claim the tip credit and pay employees the tip wage, the employer must inform tipped employees of its use of the tip credit. The Sixth Circuit has not yet directly considered the validity of a Department of Labor regulation, 29 C.F.R. § 531.59(b), requiring employees to be informed. But the Supreme Court clarified in Loper Bright Enters. v. Raimondo, 603 U.S. 369, 413 (2024), that courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

In any event, the employer must ensure the employee is “informed” that the employer “intends to treat tips as satisfying part of the employer's minimum wage obligation” but need not “explain” the tip credit. Here, the employer relied on purported written and oral notices.

Notification form. First, with respect to the employer’s notification form, which it implemented in November 2021, after this case was filed. The court determined that, by itself, this notification form did not establish that the employees received adequate notice during the relevant time period. No evidence showed that these notification forms were given to all employees.

Posters. As to the posters, the employer argued that the restaurants had prominently displayed posters approved by the DOL in their restaurants throughout the employees’ employment that contained the required information. While the employee admitted that the poster was on a bulletin board at her employment throughout her term, there was a genuine issue of material fact regarding whether the posters were prominently displayed throughout the relevant period of this case. Although seen by some employees, the poster did not expressly indicate that the employer intended to treat tips as satisfying part of their minimum wage obligations.

Oral communication. Lastly, the employer contended that the required notice was communicated orally. However, while “many of the employees expressly admitted that they were told about the tip credit either during the interview or orientation,” the employer neither admitted nor adduce evidence that they advised employees of their intent to use the tip credit. In fact, the managers admitted to being unaware of a policy requiring employees to be told anything more than the employee’s hourly rate. As such, there is a genuine issue of material fact as to whether the employer met the notice requirement through oral communications alone.

Non-tipped work. The employees claimed that they were paid a subminimum hourly wage in violation of FLSA while performing: (1) non-tipped work related to the tipped work that exceeded 20% of their time; and (2) non-tipped work that is unrelated to their jobs as servers and bartenders. For its part, the employer argued that neither the related nor unrelated nontipped work negated the use of tip credit for the employees’ wages. The employees moved for partial summary judgment on only the issue of the unrelated non-tipped work for subminimum hourly wage.

Notwithstanding the Fifth Circuit’s 2024 ruling in Rest. L. Ctr. v. U.S. Dep't of Lab., 120 F.4th 163, 171, which vacated the 2021 Regulation nationwide as to the 20% rule, district courts have found that dual jobs and 80/20 claims arising under the FLSA are still permissible theories of recovery.

Related nontipped work. At issue in the pending motions for summary judgment was whether the employees’ non-tipped work qualified as related or unrelated to their primary tipped occupation, and whether such work entitles them to compensation at the full minimum wage under the Dual Jobs Regulation and the 80/20 Rule as embodied by the DOL’s “subregulatory guidance,” said the court.

The employees claimed that the employer routinely required them to perform a variety of nontipped duties related to their tipped occupations. However, the employer requested that the court dismiss this claim based on the 80/20 Rule.

Here, the court concluded that the Fifth Circuit vacatur of the 2021 Regulation effectively restored the status quo of the 1967 Dual Regulation, the 1988 Guidance and the 80/20 Rule remain persuasive authorities. Here, the employees offered evidence of time spent on performing duties such as making tea, stocking, doing dishes, and cleaning tables. The question of whether the sidework was “substantial” enough under the Dual Jobs regulation was a question for a factfinder. Accordingly, it was improper to grant summary judgment on the issue of the related non-tipped work.

Unrelated non-tipped work. Similarly, the employees alleged that they were required to perform maintenance, dishwasher, and janitorial work unrelated to their roles as servers and bartenders. Under the Dual Jobs Regulation “no tip credit can be taken for the employee’s hours of employment” spent on unrelated non-tipped work. According to the employees, the employer paid them a subminimum hourly wage for the time that they were performing unrelated non-tipped duties. Both parties moved for summary judgment on this issue.

Under the Dual Jobs Regulation, a court’s analysis hinges upon whether an employee’s untipped duties are “related” to their tipped occupation, as well as the frequency with which those duties are performed. The court found it prudent to distinguish the unrelated work for purposes of the employees’ Dual Job Regulations claim.

Here, the employees have established that during opening shift, the employer’s policies required the tipped employees to clean and sanitize all tables, chairs, and booths. Closing duties similarly included substantial cleaning and preparation work. The court found that these tasks were unrelated to tipped work and formed part of a routine, systemic practice rather than isolated or incidental assignments.

The record supported a finding that the employer either failed to maintain a reasonable process or otherwise had reason to know that the employees were not being properly compensated in accordance with their purported policy. Thus, the court found that daily janitorial and maintenance performed during shift change and closing constituted time spent performing unrelated work, in violation of the FLSA. As such, summary judgment is granted in favor of the employees on the issue of liability under the Dual Jobs Regulation.

The case is No. 2:21-cv-04292.

Judge: Marbley, A.

Attorneys: Robert E. DeRose, II (Barkan Meizlish DeRose Cox) for Kayla Pender. Todd Andrew Fichtenberg (Emerson Thomson Bennett) for Flying S. Wings d/b/a Buffalo Wild Wings, Flying Buffalo Inc., Chase & Green Corp., Scott Lloyd and Stephon Green.

Companies: Flying S. Wings; Buffalo Wild Wings; Flying Buffalo Inc.; Chase & Green Corp.

Cases: WageHour MinimumWage ClassActions CoverageLiability StateLawClaims OhioNews