Restaurant Servers Win on Appeal: Why “Burden of Proof” Matters for Workers
Why “Burden of Proof” Matters for Workers
Determining which party has the burden of proof in a legal proceed can be a complicated issue. This is one reason that it is important to seek legal advice and representation from employee-focused attorneys if you think that your employer has violated your rights.
Workers often assume, albeit incorrectly, that they cannot win their case because they have the “burden of proof.” To start, in simple terms, when a lawsuit is filed, there are two opposing parties — the person who has initiated the lawsuit — called the plaintiff — and the company or person being sued — the defendant. Typically, in wage and labor law cases, the employees are suing (so, they are the plaintiffs) and the employers are defending against the lawsuit (so, they are the defendants). Under the law, the “burden of proof” is generally on the plaintiffs in any lawsuit. That means that the plaintiffs bear the burden of coming up with enough evidence to prove that they are entitled to “win” the case. However, oftentimes in wage and labor cases, the burden of proof actually falls upon the defendant/employer—meaning the employer has to show evidence that it complied with the law.
By shifting the burden of proof upon the defendant/employer, the law requires the employer to show that it properly complied with the law and compensated its employees pursuant to the law.
Side Work and the Burden of Proof
A good example comes from a 2021 case decided by the federal Eleventh Circuit Court of Appeals, located in Atlanta, Georgia involving a group of Denny’s restaurant servers. See Rafferty v. Denny’s, Inc., Case No. 20-13715 (11th Cir. Sept. 15, 2021). In that case, more than 8,400 restaurant servers sued various Denny’s locations for allegedly underpaying wages. In particular, the servers claimed that Denny’s was violating federal laws with respect to the “tip credit.” In general, for traditionally tipped employees like servers, bartenders, and waitstaff, an employer may pay as little as $2.13 per hour in cash wages. This is called the “tip credit” which allows employers to use a server’s tips to satisfy the employer’s obligation to pay the minimum wage.
However, an employer can ONLY use the tip credit in this manner if its employees are engaged in tip-producing tasks at least 80% of the time while they are working. If non-tipped tasks and duties (i.e. side-work) exceeds 20% of the work time and are not done contemporaneously with the tip-producing work, then employers cannot use the tip credit.
In the Denny’s case, the servers claimed that Denny’s used the tip credit even though the servers were required to engage in non-tipped work duties for more than 20% of their working hours. The employee-plaintiffs claimed that Denny’s required servers to perform non-tipped tasks like cleaning, preparing food, taking out trash, bussing tables, preparing delivery orders, and hosting. The employee-plaintiffs claimed that these duties exceed 20% of their work time.
At the trial level, the judge held the servers did not satisfy their burden of proof with respect to whether the 20% threshold had been exceeded. The employee-plaintiffs presented evidence showing that they were required to do the non-tipped duties, but did not provide any evidence showing the percentage of work hours that were used by the employees for the non-tipped duties. The judge dismissed the case. This was a significant victory for Denny’s.
The Employer has the Burden of Proof
However, the servers appealed and the Eleventh Circuit disagreed and reversed the decision. The Eleventh Circuit Court of Appeals held that the trial court committed legal error with respect to the burden of proof. The Court of Appeals held that, once the servers proved that they were required to engage in non-tipped work duties, the burden of proof shifted to Denny’s to provide evidence that the 20% threshold was not exceeded or that the non-tipped duties were performed contemporaneously with the tipped work duties. This is a significant victory for servers and for all workers. The case was returned to the trial court where Denny’s will now have the burden of proof.
As the Denny’s case illustrates, who has the burden of proof matters greatly in wage and labor litigation.
Call the Employee Rights Attorneys at Herrmann Law Today
For more information, call the Employee Rights attorneys at Herrmann Law. If you think that your employer has violated your rights as an employee, call us. We are proven, experienced, employee-focused attorneys representing workers across the United States in all types of workplace disputes. Use our Online Contact page or call us at (817) 479-9229. We are more than just a law firm for employees – we are an employees’ fiercest advocate, equipping employees with the legal representation needed to achieve the best result possible.
