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Spencer v. Macado's, Inc.

United States District Court for the Western District of Virginia, Lynchburg Division

July 8, 2019, Decided; July 8, 2019, Filed

CASE NO. 6:18-cv-00005



This matter is before the Court upon Defendant Macado's, Inc.'s partial motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. 107). This case is a collective action brought under the Fair Labor Standards Act (FSLA) by current and former Macado's servers and bartenders who allege that Macado's has paid them below minimum wage in three distinct [**2]  ways. First, Macado's allegedly required Plaintiffs to perform non-tip-producing tasks that were unrelated to their normal work while clocked in as tipped employees (a "dual jobs" claim). Second, Macado's allegedly required Plaintiffs to spend over twenty percent of their time on non-tip-producing tasks that were related to their normal work (a "side work" claim). Third, Macado's allegedly required Plaintiffs to perform unpaid work off the clock before their scheduled shifts.

Macado's seeks to dismiss Plaintiffs' "dual jobs" and "side work" claims on the basis of a recent Department of Labor (DOL) opinion letter and Handbook update. The Court finds that these materials are not entitled to Auer or Skidmore deference, and the Court will therefore deny Macado's motion to dismiss.

I. Legal Standard

A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) tests the legal sufficiency of a complaint to determine whether a plaintiff has properly stated a claim; it "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). The Court must take all facts and reasonable inferences in favor of the plaintiff, disregard any legal conclusions, and not credit any formulaic recitations [**3]  of the elements. See Iqbal v. Ashcroft, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

II. Factual & Legal Background

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399 F. Supp. 3d 545 *; 2019 U.S. Dist. LEXIS 112966 **; 170 Lab. Cas. (CCH) P36,718; 2019 WL 2931304

JEFFREY SPENCER, JR., ET AL., Plaintiffs, v. MACADO'S, INC., Defendant.

Prior History: Spencer v. Macado's, Inc., 2018 U.S. Dist. LEXIS 129522 (W.D. Va., Aug. 1, 2018)


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