Litigation in the District Court for the District of Columbia:  Campbell, et al. v. Amtrak, 1:99CV02979 (EGS) 

   

  1. MAJOR RECENT DEVELOPMENTS:
  • CLASS CERTIFICATION WAS DENIED BY THE DISTRICT COURT on 4/26/18.
  • FORMER PUTATIVE CLASS MEMBERS’ CASES ARE PROCEEDING INDIVIDUALLY and STATUTES OF LIMITIONS ARE NO LONGER TOLLED.   
    • On November 30, 2018, AMTRAK changed course and decided NOT to try to settle with anyone except the 72 Plaintiffs.  The "NOLA group" was added later to the persons with whom Amtrak may discuss settlement.
  • NAMED PLAINTIFFS’ AND THE NOLA GROUP CASES MAY BE SETTLED AS A GROUP.  TALKS ARE NOT YET UNDERWAY, AND THERE ARE ISSUES TO BE OVERCOME, EVEN BEFORE STARTING.
  • Because the NOLA GROUP had filed suit previously, the Statutes of Limitations are tolled by agreement with Amtrak, and the NOLA GROUP is presently included with the “72 GROUP” for purposes of potential settlement talks.

 

  1. UPDATES: Refer to your attorneys' communications for details and explanations.

 

  1. Class Certification Denied on 4/26/18

On April 26, 2018, the District Court for the District of Columbia in Campbell, et al. v. Amtrak, 1:99CV02979 (EGS) issued a 107-page ruling on class certification and other related issues.  Please see this link for the District Court’s 107-page ruling.

 

Most significantly, the Court DENIED class certification entirely.  This means that the claims of African-American employees and applicants who believe they were discriminated against by Amtrak in promotions, hiring, training, terminations, and discipline will be litigated individually.  In addition, other than the 72 named plaintiffs already in Campbell, any other African-American employee, former employee, or applicant who was a putative class member in Campbell MUST file his or her own new case in court.    

 

  1. Settlement Negotiations Canceled for Most Former Putative Class Members as of 11/30/18

Although Amtrak had agreed last summer to engage in settlement negotiations for all former putative class members who retained this law firm and indicated their willingness to enter into mediated settlement talks, that has since changed.  As of November 30, 2018, Amtrak announced they are no longer willing to mediate the claims of any person who was not one of the 72 named plaintiffs in Campbell, et al. v. Amtrak.  Refer to your attorneys' communications for more recent information.  Recently, Amtrak agreed also to include the NOLA group in the mediation.

 

  1. There are 4 Types of Interested Parties

All persons who retained this law firm and indicated their willingness to enter into mediated settlement talks are in one of these four categories:  (1) the 72 Named Plaintiffs, (2­) the New Orleans, Louisiana (NOLA) group, (3) the Former Putative Class Members Group 1, and (4) the Former Putative Class Members Group 2.

 

  1. Named Plaintiffs (a.k.

 

  1. Former Putative Class Members (a.k.a “FPCM Group 1”)

If you are not one of the original 72 named plaintiffs or a member of the NOLA group, then you are a former putative class member.  If you contacted Wiggins Childs last year before October 30, 2018 (and you are in neither the 72 Group nor the NOLA Group), then you are a member of the FPCM Group 1.  This is the group of former class members who timely told us, so that we could inform Amtrak, that you wanted to be included in the settlement negotiations

 

YOUR STATUTES OF LIMITATIONS ARE NOW RUNNING!  STATUTES OF LIMITATON EXPIRE ON DIFFERENT DATES, DEPENDING ON YOUR FACTUAL SITUATION.    

Your responses to the questions in the December 28, 2018 letter were requested.  Contact your attorneys if you have not yet received or responded to this letter. 

 

If you have previously filed an EEOC CHARGE and have not yet informed your attorneys of this, please do so immediately.  If you have ever received a NOTICE OF RIGHT TO SUE from the EEOC, then you have only 90 days from December 30, 2018, to file a lawsuit.  That 90 days runs out on Saturday, March 30, 2019. 

 

  1. Former Putative Class Members (a.k.a. “FPCM Group 2”)

If you did NOT get in touch with Wiggins Childs last year before October 30, 2018, and you are not in the 72 Group or the NOLA Group, then you are a member of the FPCM Group 2.  This is the group of former class members who did NOT timely tell us that they wanted to be included in the settlement negotiations.  The Statutes of Limitations were tolled for this group until the date of the class certification denial on April 26, 2018, at which time the Statutes of Limitations began running again. 

 

YOUR STATUTES OF LIMITATIONS ARE RUNNING!  STATUTES OF LIMITATON EXPIRE ON DIFFERENT DATES, DEPENDING ON YOUR FACTUAL SITUATION

 

If you have never filed a charge of discrimination with the EEOC, you may still be able to do so to preserve your claimsIf you are in this group, please contact us today to determine whether your case may still be filed and discuss your options.

 

 

IMPORTANT CONTACT INFORMATION

 

REMEMBER:

Always tell us when you change phone numbers, email addresses, or street addresses!

 

  1. Amtrak Litigation Hotline:  (205) 458-1210
    Amtrak Litigation dedicated email:  campbellvamtrak@wigginschilds.com
     
  2. ATTORNEYS

            Campbell lead attorney in D.C.: 

Timothy Fleming, of counsel

Wiggins Childs Pantazis Fisher Goldfarb, PLLC
1211 Connecticut Avenue, N.W.; Suite 420
Washington, D.C. 20036

 

Campbell attorney in Birmingham office: 

            Sandra Duca, of counsel

Wiggins Childs Pantazis Fisher Goldfarb, LLC
301 19th Street North
Birmingham, AL 35203

 

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FORMER TRUSSVILLE HOOTERS SERVERS FILE CLASS ACTION SUIT OVER PAY

Two former Hooters servers at the Trussville location have filed a class action lawsuit against the owner over allegations that the restaurant violated the Fair Labor Standard Act. (Learn More. . . )

Generally employers are required to pay employees minimum wage for every hour worked up to 40 hours a week. Under section 203(m), employers are permitted to take advantage of a “tip credit” in order to meet the federal minimum wage requirements with respect to “tipped employees.” See 29 U.S.C. § 203(m)(1)-(2). A “tipped employee” is defined as “any employee engaged in an occupation in which he ‘customarily and regularly’ receives more than $30 a month in tips.” See 29 U.S.C. § 203(t

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When the employer pays a server $2.13 per hour they are claiming a “tip credit” of $5.12 per hour. This tip credit amount is based on the difference between minimum wage $7.25 per hour and the $2.13 cash wage paid.  Generally, the employer bears the burden of showing it is entitled to this tip credit. Unless the employer satisfies the burden of showing the applicability the tip credit, the employee is entitled to full minimum wage for every hour worked.

29 USC Section 203(m) sets forth the requirements employs must satisfy in order to lawfully claim the “tip credit” in partial satisfaction of the employer’s minimum wage obligation.  First, the tip credit may only be claimed for qualified tipped employees; second, the employees must be informed of the provisions of § 203(m); and third, all tips received by the employees must be retained by them. emphasis added See 29 U.S.C. § 203(m). “Where an employer takes the tip credit in connection with a tip pooling arrangement, the application of the credit will only be valid so long as the pool includes only those employees who customarily and regularly receive tips. . . . The requirements of the tip credit are strictly construed even if . . . [plaintiffs] actually earned more than minimum wage for every shift they worked . . . .”

Garcia v. La Revise Assocs. LLC, No. 08-cv-9356, 2011 U.S. Dist. LEXIS 3325, 2011 WL 135009, at *5-6 (S.D.N.Y. Jan. 13, 2011) (internal quotation marks and citations omitted). “If tipped employees are required to participate in a tip pool with other employees who do not customarily receive tips, then the tip pool is invalid and the employer is not permitted to take a ‘tip credit.'” Ash v. Sambodromo, LLC, 676 F. Supp. 2d 1360, 1369, 2009 U.S. Dist. LEXIS 107184, 20-21 (S.D. Fla. 2009) citing Wajcman v. Investment Corp. of Palm Beach, 620 F. Supp. 2d 1353, 1356 n. 3 (S.D. Fla. 2009) (citing 29 U.S.C. § 203 (m)).

“In determining whether a participating employee is one who ‘customarily and regularly receives tips,’ courts . . . focus on whether the employee in question is ‘part of an occupation that customarily and regularly receives tips’ or whether they have more than ‘de minimis’ interaction with customers as part of their employment.” Id.; see also Kilgore v. Outback Steakhouse, 160 F.3d 294, 301 (6th Cir. 1998). “Where employees’ perform some duties that entail customer service and others that do not [as here], the employees’ level of direct customer interaction is critical to a determination of whether the employee may participate in a mandatory tip pooling arrangement.” Pedigo v. Austin Rumba, Inc., 722 F. Supp. 2d 714, 730 (W.D. Tex. 2010).

Santana v. RCSH Operations, 2012 U.S. Dist. LEXIS 17355, 6, 2012 WL 463822 (S.D. Fla. Feb. 13, 2012)

If the employer fails to meet these requirements, it is not eligible to claim the tip credit, and in such case, the employer must pay each employee the full minimum wage of $7.25 as required under 28 U.S.C.S. § 206. The plain language of 29 U.S.C.S §216 creates a private right of action against any employer who violates 29 U.S.C.S. § 206. Plaintiffs may be entitled to an equal amount in liquidated damages.

Meaning employers could have to pay $10.24 per hour for every hour worked by a server for a two to three year period under  invalid tip pool share system. Each person’s damages are different and the period of recovery is based on the date they file a lawsuit. So if an employee files a lawsuit they can go back two year from that date and three if they can demonstrate the violation was willful.

For information related to tip pooling/tip-sharing lawsuits contact the firm by calling 205-314-0500 or by email

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Deadline for inclusion in Case is October 23, 2018

The final date to add plaintiffs has been extended to October 23, 2018.  IN ORDER TO BE A MEMBER OF THIS CASE, Amtrak employees and applicants must talk with one of the attorneys by October 22, 2018.

All who have spoken to one of the attorneys and received paperwork are included in this case and do NOT need to contact their attorneys at this time.  It is unnecessary for Plaintiffs to call their attorney to check the status of paperwork sent to the attorney’s office.  Attorneys will contact Plaintiffs individually to discuss any issues, after completion of this current phase of litigation.

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