What Would Restaurant Expert Witness Say About Tip Credit Appeal?

It would be interesting to hear what restaurant expert witness opinions were rendered on the recent Applebee case, if any, that was rejected on appeal to the Supreme Court. The restaurant chain is concerned about the cost ramifications that the lower courts will impose among other issues. In particular and at issue is the separation of paid duties that servers and bartenders say are non tipped work versus work done that generates tips (i.e. serving the customer). Here is an excerpt from the recently published story including what a restaurant expert witness may consider from our standpoint: “The plaintiffs, current and former bartenders and servers, alleged that Applebee’s, a subsidiary of DineEquity Inc., required them to spend a substantial amount of time on work such as cleaning and general preparation, which did not produce tips. They said Applebee’s should have paid them the full minimum wage for time spent performing such duties.” By separating the two from a restaurant management services perspective, the employer would have to pay the minimum wage, regardless of the tips earned, for the non-serving part of the shift. This in turn would raise its costs and only allocate tips to the serving end primarily for wage credit purposes. Although duties, such as side work, are an integral part of servers and bartenders job descriptions. Still, a restaurant employment expert might opine that one set of duties has nothing do with duties that are performed that actually create the tips. However, determining what portion of those duties can be allocated to non-serving functions could prove challenging. For example, certain duties, such as stocking and cleaning stations, are often done while a server or bartender is serving the customer. Are you a lawyer or legal professional who was previously involved in similar litigation regarding tip credits and hourly restaurant employees? If so, what might your restaurant expert witness say about the above issues in this particular case?