U.S. Dept. of Labor regulations which prohibit employers from taking a tip credit on any “substantial amount of time” (defined as more than 20 percent) that a tipped employee spends on performing related but non-tipped work, such as general preparation work or cleaning and maintenance, are given deference by the Eighth Circuit in a class action minimum wage lawsuit against Applebee’s.

The Court says the “fighting issue” in the case is how to properly apply the “tip credit” to employees to tipped employees under the Fair Labor Standards Act. The FLSA allows employers to pay less than the federal minimum wage of $7.25 an hour as long as the employee’s tips make up the difference.

The Applebee’s servers and bartenders claim that the restaurant chain requires them to perform non-tip-producing duties for significant portions of their shift while compensating them at the lower rate. The bartenders claim that they were required to perform such duties as wiping down bottles, cleaning blenders, cutting fruit for garnishes, taking inventory, preparing drink mixers, and cleaning up after closing hours. The servers claim that they performed such duties as cleaning bathrooms, sweeping, cleaning and stocking serving areas, rolling silverware, preparing the restaurant to open, and general cleaning before and after the restaurant was open. The company says that these were duties that were incidental to the employees’ tipped occupations, so the tip credit could be applied. By giving the DOL regulations deference, the lawsuit against the company is allowed to proceed to trial. Fast v. Applebee’s International Inc.