Recently, the United States Department of Labor settled claims against six Roanoke restaurants and the restaurant owners, in their personal capacities, Acosta v. El Rodeo-Electric, Inc., et. al., Case No. 7:16-cv-00265. After its investigation, the Department of Labor filed a complaint on behalf of the defendants’ servers and kitchen staffers alleging that the defendant restaurants and individual owners violated the Fair Labor Standards Act by failing to pay their servers and kitchen staffers minimum and overtime wages. Specifically, that the defendants were (1) not properly notifying the servers about the tip credit, (2) not paying the servers the tip credit minimum wage of $2.13; (3) not paying servers or kitchen staff overtime wages; (4) not recording tips; and (5) not keeping adequate timekeeping records.   Under the Fair Labor Standards Act, an employee that regularly receives more than $30 a month in tips can qualify as a tipped employee. While tips are the property of the employee who received them, an employer may claim a credit against the minimum wage requirement. This is known as the tip credit. Currently, the maximum tip credit an employer can claim is $5.12 per hour. This means at a minimum a tipped employee should be

Under the Fair Labor Standards Act, certain commercial drivers involved in interstate commerce are exempt from the law’s overtime provisions. In 2008, Congress amended the law to mandate that overtime be paid to employees driving motor vehicles weighing 10,000 pounds or less. On November 17, 2017, the Fourth Circuit Court of Appeals (which includes Virginia) declined to apply the driver overtime exemption to employees whose duties involved operation of a mixed fleet of vehicles, some over and some under the 10,000 pound threshold.   In Schilling v. Schmidt Baking Co., Inc., most of the defendant’s deliveries were made by contract workers driving large trucks. However, the company had its own fleet of trucks, with some above and some below the weight limit. When the contract drivers were unable to finish all the deliveries, the plaintiffs stepped in, using an assortment of trucks from the defendant’s fleet as well as their own personal vehicles. They sued, asserting that their use of the smaller vehicles took them out of the FLSA overtime exemption.   Agreeing with the plaintiffs, the Fourth Circuit reversed the district court’s dismissal of their claims. The appellate court emphasized the plaintiffs’ testimony that they drove smaller trucks seventy to