19.  Defendants operate a restaurant and catering business in Tyler, Texas.  The restaurant is called Traditions.    20.  In the year 2015, Traditions had annual gross receipts in excess of  $500,000 (exclusive of excise taxes).    21.  In the year 2016, Traditions had annual gross receipts in excess of  $500,000 (exclusive of excise taxes).    22.  In the year 2017, Traditions had annual gross receipts in excess of  $500,000 (exclusive of excise taxes).    23.  In the four (4) quarters prior to the filing of this Complaint, Traditions  had cumulative gross receipts in excess of $500,000 (exclusive of excise taxes).    24.  Defendants employed Goss to work as a server for Traditions within the  three-year period preceding the filing of this lawsuit.     25.  Defendant Owens possesses the power to hire and fire employees such  as Goss and other restaurant employees including Class Members. Owens also  implements the general policies of the restaurant, oversees the general policies and  operations of the restaurant, approves and signs employee paychecks, and  determines the pay structure and other employment policies affecting Goss and Class  Members’ employment.     26.  Defendant Owens has exerted significant operational control over the  restaurant, its employees, and pay policies during the three (3) years preceding this  filing.   8   27.  Defendants employ employees such as Goss and Class Members on an  hourly basis. Goss and Class Members also earn tips as part of their compensation.    28.  Specifically, Defendants paid Goss and Class Members an hourly rate  that was as little as $2.13 per hour, plus a portion of the tips that Goss and Class  Members earned.    29.  Defendants paid Goss and Class Members various hourly rates, with the  majority of those hours, Goss and Class Members were working for an hourly wage  that was less than $7.25.    30.  For example, Defendants paid Goss and Class Members $2.13 per hour  while waiting tables, $3.75 per hour for waiting tables as shift lead, $4.25 per hour  for training. In each instance where Defendants paid Goss and Class Members a sub- minimum wage, Defendants purported to apply a portion of the tips Goss and Class  Members earned towards Defendants’ minimum wage obligation.    31.  At other times during their employment, Defendants paid Goss and  Class Members an hourly wage ranging from $7.25 up to $9.00 per hour plus a portion  of the tips that Goss and Class Members earned.    32.  Defendants violated Section 203(m) of the FLSA by: (1) failing to  distribute to Goss and Class Members the entire amount of their tips; (2) requiring  Goss and Class Members to share tips with employees who may not lawfully  participate in a tip pool – including employees working in the kitchen; (3) making  illegal deductions from the wages of Goss and Class Members – minimum wage  employees – for items such as uniforms and meals; and (4) failing to inform Goss and  9  Class Members of the FLSA’s Section 203(m) tip-credit provisions.     33.  First, Defendants regularly retained a portion of Goss and Class  Members’ tips. As one example, Goss and Class Members regularly work catering  events where Defendants pay as little as $2.13 per hour plus tips. As part of these  catering events, customers will leave a tip for the service provided by Goss and Class  Members. However, Defendants not distribute the entire amount of these earned tips  to Goss and Class Members. Instead, Defendants deducted as much as one-half (1/2)  of the total tip before distributing the remaining one-half (1/2) to Goss and Class  Members.    34.  Second, Defendants distribute a portion of Goss and Class Members’ tips  to back-of-the-house employees working in the kitchen including the cooks. However,  an employer violates the FLSA when it distributes employees’ tips to back-of-the- house employees, such as cooks. Here, Defendants’ practice of distributing a portion  of Goss and Class Members’ tips to back-of-the-house employees is a violation of 29  U.S.C. § 203(m).    35.  Third, Defendants charged Goss and Class Members for their uniforms.  The cost of these uniforms was passed along to Goss and Class Members, thereby,  violating condition two of 29 U.S.C. § 203(m). See also, Reich v. Priba Corp., 890 F.  Supp. 586, 596-97 (N.D. Tex. 1995) (if employer requires employee to wear a uniform,  employer cannot count uniform expense as wages to satisfy minimum wage  requirement) (citing 29 C.F.R. 531.3(d)(1), (2) & 29 C.F.R. 531.32(c)).     36.  Defendants also charged Goss and Class Members more than the cost of  10  the meals that Goss and Class Members consumed during their shifts. See Dole v.  Bishop, 740 F. Supp. 221, 1227 (S.D. Miss. 1990) (for employer-provided, on-the-job  meals, employer can only charge employee for reasonable cost of meal to the  employer) (citing 29 U.S.C. § 203(m)). Charging Goss and Class Members more than  Defendants’ cost of the meals consumed during working hours is also a violation of  Section 203(m).     37.  Because Defendants failed to allow Goss and Class Members to retain  all tips earned, Defendants violated 29 U.S.C. § 203(m) of the FLSA. As such,  Defendants are liable to Goss and Class Members for the full amount of the minimum  wage for every hour worked where Goss and Class Members were paid a direct cash  wage of less than minimum wage. In addition, regardless of the direct hourly wage  that Defendants paid Goss and Class Members, Defendants are liable to Goss and  Class Members for all of the misappropriated tips.1    38.  In addition to illegally retaining Goss and Class Members tips,  Defendants did not inform Goss and Class Members of the provisions of the tip credit,  violating condition one of 29 U.S.C. § 203(m). See 29 C.F.R. § 531.59(b).  a. Defendants did not inform Goss and Class Members of the amount of the  tips to be credited toward the minimum wage. See Id.  b. Defendants did not inform Goss and Class Members that all tips  received by the employee must be retained by the employee. See Id.   1 In March of 2018, the FLSA was amended to clarify that Section 203(m) prohibits employers from requiring  employees from retaining tips or sharing tips with non-tipped employees regardless of whether the employer pays  less than $7.25 per hour. See 29 U.S.C. § 203(m)(2(B).   11  c. Defendants did not inform Goss and Class Members that the tip credit  shall not apply to any employee who has not been informed by the  employer of the provisions for a tip credit. See Id.  d. Defendants did not inform Goss and Class Members that the tip credit  may only be taken as to the amount of the tips actually received by the  employee and that the employer may not retain any of the employee’s  tips. See Id.   39.  Next, Defendants willfully violated and are violating the provisions of  sections 7 and 15(a)(2) of the FLSA, 29 U.S.C. §§ 207 and 215(a)(2), by failing to pay  Goss and Class Members, for their employment in an enterprise engaged in commerce  or the production of goods for commerce, at rates not less than one-and-one-half times  the regular rate for all hours worked over forty (40) in a single workweek.    40.  Defendants violated the overtime provisions set out in section 7 of the  FLSA, 29 U.S.C. § 207, by incorrectly paying Goss and Class Members one-and-one- half times the subminimum wage for hours worked over forty (40) in a single  workweek and failing to include all compensation, bonuses, and other remuneration  in the regular rate for purposes of calculating overtime pay. The overtime rate for  employees paid a subminimum wage (e.g. Goss and Class Members) is calculated by  subtracting the amount of the tip credit from the full overtime rate. See DOL Field  Operations Handbook 32j18. (An employer may not take a higher tip credit against  its minimum wage obligation during overtime hours than is taken during non- overtime hours.).  Moreover, Goss and Class Members’ overtime rate did not include  12  all compensation, bonuses, and other remuneration in the calculation of the regular  rate for purposes of calculating overtime pay.   41.  Defendants’ method of paying Goss and Class Members in violation of  the FLSA was not based on good-faith and a reasonable belief that its conduct  complied with the FLSA. Therefore, an award of liquidated damages is mandatory.     42.  Defendants’ method of paying Goss and Class Members in violation of  the FLSA was willful and was not based on good-faith and reasonable belief that its  conduct complied with the FLSA. A three-year statute of limitations applies due to  the willful nature of the violations. 29 U.S.C. § 255(a).    43.  During the three-year period preceding the filing of this lawsuit,  Defendants have employed individuals who performed similar job duties under a  similar payment scheme as used to compensate Goss.  VI.  44.  The foregoing paragraphs are fully incorporated herein.    45.  Goss brings this FLSA claim, as an “opt-in” collective action pursuant to  29 U.S.C. § 216(b) (the “Collective Action”). Goss brings this action as a representative  of all similarly-situated former and current servers of Defendants. The proposed  collective of similarly situated employees (“Class Members”) sought to be certified  pursuant to 29 U.S.C. § 216(b), is defined as:  All individuals who worked as servers for Defendants in the  three (3) years preceding the filing of this Complaint.   46.  FLSA claims may be pursued by those who opt-in to this case, pursuant  13  to 29 U.S.C. § 216(b).    47.  Other employees have been victimized by Defendants’ common pattern,  practice, and scheme of paying employees in violation of the FLSA. Named Plaintiff  is aware of other employees at Defendants restaurant who were paid in the same  unlawful manner as Named Plaintiff. Named Plaintiff is aware that the illegal  practices or policies of Defendants have been uniformly imposed on the Class  Members.   48.  Named Plaintiff and the Class Members have the same pay structure,  have the same job duties, compensation, and are subjected to the same compensation  policies. Named Plaintiff has personal knowledge that Class Members are all victims  of Defendants’ unlawful compensation practices as set forth in this Complaint.    49.  Named Plaintiff and the Class Members are all non-exempt for purposes  of minimum wage payments under the FLSA.    50.  Named Plaintiff and the Class Members are all non-exempt for purposes  of overtime under the FLSA.    51.  Defendants’ failure to pay wages in accordance with the FLSA is a result  of Defendants’ generally applicable policies or practices and does not depend on the  personal circumstances of the Class Members. Named Plaintiff’s experience in regard  to pay is typical of the experiences of the Class Members.    52.  Although the exact amount of damages may vary among Class  Members, the damages for the Class Members can be easily calculated by a simple  formula. The Class Members’ claims arise from a common nucleus of facts.  14  Specifically, Defendants’ systematic course of wrongful conduct in violation of the  FLSA’s minimum wage requirements caused harm to Named Plaintiff and Class  Members.   53.  The foregoing paragraphs are fully incorporated herein.   54.  During the relevant period, Defendants have violated and are violating  Section 6 of the FLSA, 29 U.S.C. § 206, and 215(a)(2), by employing Named Plaintiff  and Class Members in an enterprise engaged in commerce or in the production of  commerce within the meaning of the FLSA, as aforesaid, by failing to pay such  employees at the minimum wage rate.    55.  Defendants pay Named Plaintiff and Class Members less than the  federally mandated minimum wage of $7.25 per hour. None of the exemptions or  defenses provided by the FLSA regulating the duty of employers to pay employees for  all hours worked at the required minimum wage rate are applicable to Defendants,  Named Plaintiff, or Class Members.    56.  Defendants failure to pay Named Plaintiff and Class Members at the  minimum wage rate is a violation of the FLSA’s minimum wage requirement. See 26  60.  The foregoing paragraphs are fully incorporated herein.   61.  During the relevant period, Defendants have violated and are violating  Section 7 of the FLSA, 29 U.S.C. § 207, 215(a)(2), by employing Goss and Class  Members in an enterprise engaged in commerce or in the production of commerce  within the meaning of the FLSA, as aforesaid, by failing to pay such employees at a  rate of not less than one-and-one-half times the regular rate.   62.  In addition, Goss and Class Members’ regular rate must include all  compensation, bonuses, and other remuneration paid by Defendants for purposes of  calculating the overtime rate. See 29 C.F.R. 778.208.  Defendants have failed to  16  include all compensation, bonuses, and other renumeration into Named Plaintiff and  Class Members’ regular rate for purposes of calculating the overtime premium rate.     63.  None of the exemptions or defenses provided by the FLSA regulating the  duty of employers to pay employees for all hours worked at the required overtime rate  are applicable to Defendants, Named Plaintiff, or Class Members.   IX.  64.  By requiring Named Plaintiff and Class Members to share their tips  with Defendants, Defendants obtained money which in equity and good conscience  belongs to Named Plaintiff and the Class Members. See H.E.B., L.L.C. v. Ardinger,  369 S.W.3d 496, 507 (Tex. App.—Fort Worth 2012, no pet.) (citing Staats v. Miller,  150 Tex. 581, 584, 243 S.W.2d 686, 687 (1951)) (“Money had and received is an  equitable action that may be maintained to prevent unjust enrichment when one  person obtains money which in equity and good conscience belongs to another.”).    65.  Defendants obtained Named Plaintiff and Class Members’ tips  maliciously.  X.  FAIR LABOR STANDARDS ACT   FAIR LABOR STANDARDS ACT   THE COMMON LAW OF TEXAS  