A former Mulligan’s Beach House Bar and Grill server is suing the restaurant over wages in a case that could have widespread implications for other restaurants and restaurant workers throughout Florida.
Nando Cuccurese, 36, waited tables at the popular beachfront restaurant from 2018 to January 2024. He has since moved to Fort Myers.
According to the suit, Cuccurese was paid the state minimum wage, minus a “tip credit” of $3.02 per hour. However, state law only allows employers to deduct the tip credit from the employee’s paycheck if no more than 20 percent of the worker’s time includes performing tasks for which they are not tipped.
Cuccurese is claiming his side work consumed much more than 20 percent of his time on the job, and that withholding the tip credit was a violation of the Florida Minimum Wage Act (FMWA) and the federal Fair Labor Standards Act (FLSA). He is seeking between $50,000 and $75,000 in damages.
The suit also claims that Mulligan’s compelled Cuccurese to contribute portions of his tips to a “tip pool” that was “redistributed to restaurant management and/or employees not engaged in tipped occupations” in violation of the law. Cuccurese also was required to work “while clocked out,” for which he wasn’t compensated at all, the suit says.
Mary Hoertz, vice president of Mulligan’s Beach House Bar and Grill Corporate, declined to comment on the case. Mulligan’s has not yet responded to the complaint.
Cuccurese is represented by Orlando attorney Michael Grossman, a former server and bartender who has become somewhat of a specialist in suits over wage practices in the hospitality industry. Since 2012, he has represented hundreds of aggrieved servers and bartenders.
FLSA litigation has grown substantially over the past quarter century, particularly in Florida
In 1988, the U.S. Department of Labor updated its Field Operations Handbook – the manual that interprets wage and hour division laws for business owners and Department of Labor investigators – to include what has become generally known as the “80/20 Rule.”
It stated that up to 20 percent of a server’s job could involve tasks that, while not directly tippable, are related to the server’s tippable duties.
In December 2021, the Department of Labor updated the 80/20 Rule to decree that non-tippable duties could not exceed 30 contiguous minutes. The new standard became known as the 80/20/30 Rule and all of the rules were codified into actual regulations, Grossman said.
But on Aug. 23 of this year, the U.S. Circuit Court of Appeals for Florida’s 5th Circuit vacated the 80/20/30 Rule in a case brought against the Department of Labor by the Restaurant Law Center. The court said the regulations were inconsistent with the text of the FLSA and were also “arbitrary and capricious” in violation of the Administrative Procedures Act.
The 5th Circuit Court ruling is likely to be appealed. Thus, the Mulligan’s case may have implications for both employees and employer, said Samantha Padgett, vice president of government relations for the Florida Restaurant and Lodging Association.
“This is a situation in flux,” she added.
