Waffle House has illegally been charging employees who use tobacco an extra $92 a month for health insurance through an unlawful surcharge program, a former server alleges in a proposed class-action lawsuit seeking more than $5 million.
The complaint, filed in the US District Court for the Middle District of Georgia, alleges the restaurant giant violated the Employee Retirement Income Security Act by imposing tobacco surcharges without giving workers the option to avoid the fees by joining a smoking-cessation program.
Corkeitha Hicks, who worked as a server at a Waffle House restaurant in Forsyth, Ga., claims in her June 23 suit that she paid the surcharge after enrolling in the company’s health plan.
According to the lawsuit, Waffle House deducted roughly $23 a week from her paycheck — about $92 a month, or $1,104 annually.
The lawsuit seeks to cover Waffle House employees across the country who paid the tobacco surcharge during the past six years.
According to the complaint, Waffle House operates more than 2,000 restaurants in 25 states and requires workers signing up for company health insurance to disclose whether they use tobacco.
Employees who say they use tobacco are charged an extra $92 a month to keep their health coverage, according to the lawsuit.
Hicks argues the surcharge violates federal benefits law because employers can only charge smokers more if they also offer a qualifying wellness program that gives workers a meaningful way to avoid the fee.
Waffle House offers employees a smoking-cessation program called Quit for Life. According to the lawsuit, workers who completed the program by Sept. 30 could get their tobacco surcharges refunded for that plan year and stop paying the extra fee going forward.
But employees who finished the program after Sept. 30 could only avoid future surcharges and weren’t reimbursed for what they had already paid, the complaint alleges.
Hicks also claims Waffle House failed to clearly tell employees in all of its health plan materials that they could avoid the surcharge by completing the program.
The lawsuit further alleges Waffle House improperly kept the money collected through the tobacco surcharge instead of using it for the employee health plan.
“In sum, these practices demonstrate that Waffle House’s wellness program is an unreasonable, revenue-generating scheme disguised as a health initiative,” the complaint states.
The Post has sought comment from Waffle House.