From AP, staff reports

JEFFERSON CITY, Mo. — Although the state labor department initially advised otherwise, a judge has ruled that food servers, bellhops and other tipped employees were due a pay raise when Missouri’s minimum wage rose this year.

The ruling by Cole County Circuit Judge Patricia Joyce could result in several hundred dollars of back pay for each tipped employee whose boss relied on the state’s faulty interpretation.

Missouri’s minimum wage rose from $5.15 to $6.50 an hour Jan. 1 as a result of a ballot measure approved last year by voters.

Supporters of the law said tipped employees were entitled to base pay of at least half that amount, or $3.25 an hour. But the state Department of Labor and Industrial Relations originally advised on a Web site that tipped employees were due only the federal minimum of $2.13 an hour, so long as their tips pushed their total pay to at least $6.50 an hour.

That changed March 14, when Gov. Matt Blunt declared that the department had gotten it wrong and ordered it to advise employers to pay $3.25 an hour to their tipped workers.

Several restaurants sued the labor department, seeking a declaration that the proper wage was $2.13 an hour, or alternatively asking that they be exempt from providing back pay at the $3.25 threshold between Jan. 1 and the date of Blunt’s decision.

Joyce rejected those arguments, dismissed the restaurants’ lawsuit and said tipped employees were due $3.25 an hour from Jan. 1 onward.

Mike Wiggins, owner of Granny Shaffer’s restaurants in Joplin and Webb City, was among those who filed the lawsuit. Wiggins said the judge invalidated the lawsuit, saying the restaurant owners didn’t have the authority to sue the labor department because it didn’t make the law, Missouri voters did. Wiggins said he cannot sue Missouri voters, so he’s not sure what to do next.

“We’re between a rock and a hard place,” Wiggins said Tuesday.

The suing restaurants “cannot take advantage of initially incorrect advice from the department, especially in the face of a contrary statute and regulation, to obtain legal sanction for insufficient wages paid to tipped employees who were entitled to the full benefit of the minimum wage law,” the judge said in her ruling.

St. Louis attorney John Renick, who represented the restaurants, said Tuesday that the ruling likely would be appealed.

Renick said it seemed inconsistent for the labor department to offer advice, then change it based on a governor’s order, then maintain that its advice really didn’t mean anything. If the law and regulation were so clear, the department should have just referred people to the language of the regulation instead of offering its initial interpretation, Renick said.

Wiggins said he hadn’t talked with his attorneys or the Missouri Restaurant Association. He said his options are appealing the decision to a higher court, filing a different lawsuit with a new defendant or forgetting the whole thing. He said he already has spent $75,000 on the lawsuit, and he isn’t sure how much more of his time and money the issue is worth.

As a result of the judge’s decision, the labor department plans to start investigating 21 complaints it has received about businesses not paying enough to tipped employees between Jan. 1 and March 14, said department spokeswoman Tammy Cavender.

The department can make a determination as to whether an employee was not paid enough. But it has no legal authority to force a business to follow its decision; rather, an employee must sue for back pay. Joyce cited that fact while concluding that the department wasn’t a proper defendant for the lawsuit.

Jim Kottmeyer helped write the minimum-wage ballot measure for the group Give Missourians a Raise Inc. He said there are about 62,500 tipped employees in Missouri, though it is unclear how many have not been paid $3.25 an hour since Jan. 1

“We certainly believed when reading the law that it was clear, and we’re pleased that the courts validated that interpretation,” Kottmeyer said Tuesday. “Our hope is that restaurant owners and managers move forward and actually pay the back wages they owe.”

Wiggins said the minimum-wage increase will cost the Granny Shaffer’s location on North Range Line Road about $30,000 in additional wages and costs per year, but he isn’t devastated by the ruling.

“I’m going to survive. I’m optimistic,” he said. “I love Joplin, and I love my business. I’m just trying to serve the customer, make a living and make great eggs.”





Back pay



If an employee worked 40 hours a week and received $2.13 an hour until Gov. Matt Blunt ordered the state labor department to adopt the $3.25-an-hour standard in mid-March, that employee would be due about $475 in back pay, according to wage-hike proponents.