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Sicklesmith v. Hershey Entm't & Resorts Co.

United States District Court for the Middle District of Pennsylvania

February 25, 2020, Filed




Presently pending before this Court is Defendant's Motion to Dismiss. (Doc. 8). For the reasons that follow, we will deny the motion.


We take the following from the Plaintiff's Complaint and assume it to be true, as we must.

The instant case alleges a variety of wage-and-hour-related claims against Hershey Entertainment & Resorts Company resulting from Plaintiff Sicklesmith's employment as a server. Plaintiff Sicklesmith brings his claims on behalf of himself and a group of similarly-situated Hershey employees.

Plaintiff Sicklesmith was employed by Defendant at the "Houlihan's" restaurant in Hershey, Pennsylvania ("the Restaurant") from approximately January 2017 until September 2019. (Doc. 1 at ¶¶ 7, 9). During his employment, Plaintiff Sicklesmith was paid the Pennsylvania hourly tipped minimum [*2]  wage of $2.83, plus tips from customers of the Restaurant. (Id. at ¶ 10). This tipped minimum wage falls below the Pennsylvania minimum wage of $7.25, but such a practice is permitted by Department of Labor ("DOL") regulations, providing that certain requirements are met. 29 C.F.R. §531.56(e). At issue here is whether Defendant complied with relevant regulations when it compelled Plaintiff Sicklesmith and the putative class to perform alleged non-tip-generating work while paying them the tipped minimum wage, as opposed to the higher minimum wage.

Plaintiff alleges that he and similarly-situated tipped servers employed by Defendant were required to perform impermissible "non-tip-producing work" during their shifts, including "rolling silverware; [sic] setting up drink stations, cleaning the soda machine, filling sauce containers, setting-up the salad cooler, preparing food, slicing fruit, sorting silverware and ramekins, and cleaning the Restaurant." (Id. at ¶ 12). While performing such tasks, Plaintiff Sicklesmith claims, he and other servers were not earning tips, nor did Defendant pay them the higher minimum wage required by regulation. (Id. at ¶ 10). Plaintiff further alleges that he and the putative [*3]  class of servers spent "at least 30% of their working hours" performing these non-tip-generating tasks in contravention of federal regulations limiting the amount of such work. (Id. at ¶ 14). Specifically, Plaintiff alleges that Defendant's tipped employees were required to perform these tasks in the hour prior to the Restaurant's opening and for 30 minutes at the end of the day, when "Restaurant mangers relieve[d] servers of their customer service duties to focus exclusively on performing non-tip producing work." (Id.).

Plaintiff Sicklesmith now brings the instant case alleging violations of the FLSA (Count I) and the PMWA (Count II).1 He filed his Complaint on September 27, 2019. (Doc. 1). On December 2, 2019, Defendant filed a Motion to Dismiss, (Doc. 8), and an accompanying brief in support. (Doc. 9). Plaintiff Sicklesmith filed a brief in opposition on January 8, 2020. (Doc. 20). Defendant replied on January 29, 2020. (Doc. 23). The Motion is therefore ripe for disposition. For the reasons that follow, we shall deny the Motion.

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2020 U.S. Dist. LEXIS 32042 *; __ F. Supp. 3d __; 2020 WL 902544

RANDY SICKLESMITH, on behalf of Himself and similarly situated Employees, Plaintiffs v. HERSHEY ENTERTAINMENT & RESORTS COMPANY Defendants.


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