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McClellan: A Clayton car wash drama goes to trial

McClellan: A Clayton car wash drama goes to trial

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Robert Pace used to work at Clayton Car Wash, an institution of a place — been in business 35 years — on South Hanley Road. Pace started working there in September 2011. He was just out of prison. He had done six years for involuntary manslaughter.

Over the course of the next five years, Pace worked his way to the end of the line. He no longer did much washing. He was the fellow who would hand the customer his or her keys, check the car with the customer, and if necessary, wipe something down. He continued to make what the washers made — $7.10 an hour plus tips.

In June 2016, he quit. He said it was over a wage dispute. He claimed he had been shorted a day, and the boss insisted he had not been at work on the day in question, so Pace walked out.

Fortunately, his wife works. She has an administrative job at a nursing home. Pace did odd jobs to help make ends meet.

In April 2018, Pace was listening to FM 95.5, a rhythm and blues station. He heard an advertisement for the law firm of Ross & Voytas. That firm represents people who are being hounded by creditors. (DJ Kut, host of the show Pace was listening to, was once a client.) The firm also represents people with wage issues.

Pace thought about it and decided he had a wage issue.

It involved the tips at the car wash. All tips went into a big jar. If a customer paid with a credit card and wanted to leave a tip, he or she would write the amount of the tip on the credit card receipt, and the counterman would give the customer cash, which would then go into the jar.

At the end of the day, the boss would take the jar into the back office. The next morning, the jar was empty. At the end of the week, the boss would divide the week’s tip money among the guys — usually 12 or 13 — depending on how many days each had worked that week.

But who was watching the boss count the money? Nobody.

As the guy at the end of the line who dealt with the customers, Pace used to have a rough idea of how much they were collecting. He was convinced he and his colleagues were being shorted. He contacted two of his old colleagues, and the three of them went to see the lawyers. All three signed on as clients.

The attorneys filed three separate lawsuits against Clayton Car Wash. The first of the three went to court last month. Pace was the plaintiff.

The applicable law was the Fair Labor Standards Act. That dates to the New Deal. It was passed in 1938 and has been amended since. The law allows a plaintiff to go back no more than three years from the date he files his lawsuit. In other words, if you file a lawsuit in 2018, you can only claim damages back to 2015.

In Pace’s case, that would amount to two years worth of allegedly underpaid tip money. And just his share of it — a twelfth or so of that allegedly underpaid money. Surely that couldn’t amount to a whole lot. Why would a lawyer take the case? Because this is not a typical civil case in which the plaintiff’s lawyers get a percentage of their clients’s award. The Fair Labor Standards Act allows the plaintiff’s lawyers to seek legal fees if they prevail.

It was a two-day trial. Rick Voytas Jr. was the lead attorney for Pace. Andrew Sandroni represented the car wash and its owner, Richard Rutledge.

Pace and one of his former colleagues described the clientele as upscale people with fancy cars. They said the average tip was probably $5 to $10. Voytas had Pace’s tax returns to show how much he had received from tips. He had records from the car wash to show how many cars were washed during the period in question. (Records showed that the car wash does about 25,000 cars a year.)

Rutledge testified he had not shorted the workers, but he had no records. He just did it the way it had always been done, he said.

In his closing argument, Voytas appealed to any of the jurors who had ever worked for tips. Did their bosses take the tip jar into the office and count it alone? Why would anybody do that?

He challenged the jurors to do two math problems. One, assume the average tip was $10. Figure what the total should have been and divide it by 13. That would show how much Pace should have received. Subtract from that the amount his tax returns say he did receive. Do the same thing with the average tip being $5.

The jury was out for about three hours. They returned a verdict in favor of Pace. They used the $10 figure. The law allows the jury to double the award, and they did. Pace was awarded $18,522.

“One of the jurors told me they wished they could have given me more,” Pace told me.

Rutledge did not return a message, but when I stopped by the car wash, a worker told me management had changed its policies on the tip jar and was now keeping records.

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