Smith v. Driver, No. 13-8029 (7th Cir. 2014)
Annotate this CaseThe district court certified a class of waiters, bartenders, and other tipped employees at defendant restaurants. Under the Fair Labor Standards Act, 29 U.S.C. 203(d), and the Illinois Minimum Wage Law their employer is not required to pay tipped employees full federal or state minimum wage. If tipped employees also perform unrelated non‐tipped duties such as washing dishes, preparing food, or cleaning bathrooms, they are entitled to full minimum wage for time spent at that work. After the court amended the class definition to employees “who worked as tipped employees earning a sub‐minimum, tip credit wage rate,” the last remaining defendant sought permission to appeal for a second time. The Seventh Circuit denied the petition. While the definition is overinclusive because it says nothing about untipped work, the defendant did not challenge the definition. The change to the definition since denial of the previous petition does not open the door to a challenge to the initial grant of class certification on grounds derived from developments since that grant, including rulings by the district court. To justify a second appeal from grant or denial of class certification the order appealed from must have materially altered a previous order granting or denying certification.
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