United States District Court, E.D. Pennsylvania
ADAM CALABRESE, Individually and on behalf of all others similarly situated Plaintiff,
TGI FRIDAY'S INC., et al., Defendants
MEMORANDUM AND ORDER
putative collective/class action has been brought before the
Court on Motion of the Defendants for entry of summary
judgment in their favor on all of Plaintiff's claims
under the Fair Labor Standards Act, 29 U.S.C. §201,
et. seq., the Pennsylvania Minimum Wage Act, 43 P.S.
§333.102, et. seq., and the New Hampshire
Minimum Wage Law, N.H. Rev. Stat. §279:1, et.
seq. For the reasons which follow, the motion shall be
September 2013, Plaintiff Adam Calabrese was hired for a
server position at the TGI Friday's restaurant in
Concord, New Hampshire, a position in which he remained
through April 2014, when he began working at the TGI
Friday's in Montgomeryville, Pennsylvania. Plaintiff
worked as a server at the Montgomeryville Friday's
through September 2014. In October 2014, Mr. Calabrese
resumed working at the Friday's in Concord, New Hampshire
where he remained until February, 2015. (Pl's Compl.,
¶ 19). In both of the TGI Friday's restaurants in
which Plaintiff worked, he was paid on an hourly basis, with
Friday's paying him a cash wage of $2.83 per hour in
Pennsylvania and $3.26 hourly in New Hampshire plus tips.
(Pl's Compl., ¶s 38, 39, 43). In the event that
Plaintiff did not earn enough in tips to bring his hourly
wage up to the minimum wage, Friday's was to make up the
difference. Plaintiff avers that he typically worked some 30
hours per week at both the Concord, NH and Montgomeryville,
PA locations, usually in 5 shifts lasting approximately 6
hours and beginning around 4 p.m. and ending at 10 p.m.
(Pl's Compl., ¶s 41-42).
Friday's took a “tip credit” in paying
Plaintiff his compensation which amounted to $3.99 in New
Hampshire and $4.42 in Pennsylvania, Plaintiff contends that
it failed to inform him of its intention to take that credit
and the amount it intended to claim as a credit in violation
of U.S. Department of Labor regulations and relevant
provisions of the FLSA and Pennsylvania and New Hampshire
state law. (Pl's Compl., ¶s 50-51, 54-55, 57). In
addition, Plaintiff alleges that Friday's violated the
New Hampshire Minimum Wage Law insofar as it mandated that he
participate in a tip pooling/tip sharing arrangement while he
was working at the Concord location. (Pl's Compl.,
motion which is now before us, Defendant TGI Friday's
submits that because the evidence in this matter demonstrates
that it did in fact provide Plaintiff with proper notice of
the tip credit provisions of the FLSA and the applicable
states' law, and that, contrary to Plaintiff's
claims, it did not require him to share his tips
with other employees in New Hampshire, it is entitled to the
entry of judgment in its favor as a matter of law on all of
the claims against it.
ruling upon a motion for summary judgment, the courts are
generally guided by the language contained in Fed.R.Civ.P.
A party may move for summary judgment, identifying each claim
or defense - or the part of each claim or defense - on which
summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law. The court should state on the
record the reasons for granting or denying the motion.
reading this rule, it is clear that summary judgment is
appropriately entered only when the movant shows that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.
Willis v. UPMC Children's Hospital of
Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015). An issue
of fact is material and genuine if it “affects the
outcome of the suit under the governing law and could lead a
reasonable jury to return a verdict in favor of the nonmoving
party.” Parkell v. Danberg, 833 F.3d 313, 323
(3d Cir. 2016)(quoting Willis, supra. and
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
considering a motion for summary judgment, the reviewing
court should view the facts in the light most favorable to
the non-moving party and draw all reasonable inferences in
that party's favor. Burton v. Teleflex, Inc.,
707 F.3d 417, 425 (3d Cir. 2013). “If the non-moving
party bears the burden of persuasion at trial, ‘the
moving party may meet its burden on summary judgment by
showing that the nonmoving party's evidence is
insufficient to carry that burden.'” Kaucher v.
County of Bucks, 455 F.3d 418, 423 (3d Cir.
2006)(quoting Wetzel v. Tucker, 139 F.3d 380, 383,
n.2 (3d Cir. 1998)). In response, and “to prevail on a
motion for summary judgment, ‘the non-moving party must
present more than a mere scintilla of evidence; there must be
evidence on which the jury could reasonably find for the
non-movant.'” Burton, supra,
(quoting Jakimas v. Hoffmann-La Roche, Inc., 485
F.3d 770, 777 (3d Cir. 2007)). Thus, “[t]he moving
party is entitled to judgment as a matter of law when the
non-moving party fails to make “a sufficient showing on
an essential element of her case with respect to which she
has the burden of proof.” Moody v. Atlantic City
Board of Education, 870 F.3d 206, 213 (3d Cir.
2017)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
noted, this case essentially presents two claims - (1) that
Defendant violated federal and applicable state labor and
wage laws by failing to inform him that it would be taking a
“tip credit” in paying him his wages; and (2)
that it violated New Hampshire law by requiring him to
participate in a tip pool. In pressing these claims,
Plaintiff is first and foremost invoking the federal Fair
Labor Standards Act, 29 U.S.C. §201, et. seq.,
which was enacted by Congress in 1938 with the goal of
“protecting all covered workers from substandard wages
and oppressive working hours.” Christopher v.
SmithKline Beecham Corp., 567 U.S. 142, 147, 132 S.Ct.
2156, 2162, 183 L.Ed.2d 153 (2012)(quoting Barrentine v.
Arkansas-Best Freight System, Inc., 450 U.S. 728, 739,
101 S.Ct. 1437, 67 L.Ed.2d 641 (1981)).
Section 6 of the FLSA 29 U.S.C. §206,
(a) Every employer shall pay to each of his employees who in
any workweek is engaged in commerce or in the production of
goods for commerce, or is employed in an enterprise engaged
in commerce or in the production of goods for commerce, wages
at the following rates:
(1) except as otherwise provided in this section, not less
$7.25 an hour ...
29 U.S.C. §206(a)(1). This rate is the same under both
Pennsylvania and New Hampshire state law. See, 43
P.S. §333.104(8)(a.1); N.H. Rev.Stat. 279:21.
“Congress carved out an exception to the minimum wage
for certain occupations in which tips can reliably be
expected to supplement wages.” Perez v. Lorraine
Enterprises, Inc., 769 F.3d 23, 25
(1st. Cir. 2014). This so-called “tip
credit” is described in 29 U.S.C. §203(m):
... In determining the wage an employer is required to pay a
tipped employee, the amount paid such employee by the
employee's employer shall be an amount equal to -
(1) the cash wage paid such employee which for purposes of
such determination shall be not less than the cash wage
required to be paid such an employee on the date of the
enactment of this paragraph [enacted August 20, 1996]; and
(2) an additional amount on account of the tips received by
such employee which amount is equal to the difference between
the wage specified in paragraph (1) and the wage in effect
under section 6(a)(1) [29 U.S.C. §206(a)(1)].
The additional amount on account of tips may not exceed the
value of the tips actually received by an employee. The
preceding 2 sentences shall not apply with respect to any
tipped employee unless such employee has been informed by the
employer of the provisions of this subsection, and all tips
received by such employee have been retained by the employee,
except that this subsection shall not be construed to
prohibit the pooling of tips among employees who customarily
and regularly receive tips.
Code of Federal Regulations, 29 C.F.R. §531.59,
similarly addresses the tip credit issue. It states:
(a) In determining compliance with the wage
payment requirements of the Act, under the provisions of
section 3(m) the amount paid to a tipped employee by an
employer is increased on account of tips by an amount equal
to the formula set forth in the statute (minimum wage
required by section 6(a)(1) of the Act minus $2.13), provided
that the employer satisfies all the requirements of section
3(m). This tip credit is in addition to ...