Capital Grille

Issues: Minimum wage; overtime compensation; spread-of-hours; misappropriated tips; uniform expenses


A lawsuit filed on November 17, 2011 alleges that Capital Grille failed to pay its tipped hourly food service workers the proper minimum wage rate, overtime and spread-of-hours. The lawsuit was filed as a class action against Capital Grille locations nationwide. Thus, any current or former server, busser, runner, bartender, barback, server assistant, or any other tipped food service worker who has worked for Capital Grille within the past six years might be affected.

The servers, bussers, runners, bartenders, barbacks, server assistants, and other tipped food service workers (“food service workers”) allege that Capital Grille did not inform them of the tipped minimum wage or tip credit provisions of the Fair Labor Standards Act (“FLSA”) or the New York Labor Law (“NYLL”), therefore, Capital Grille should have paid the food service workers the full minimum wage rate (currently $7.25 in NY), rather than the tipped minimum wage rate (currently $5.00 in NY). The food service workers also allege that Capital Grille required them to perform “off-the-clock” work which they were never compensated. “Off-the-clock” work consisted of requiring workers to arrive before their shift in order to dress for their shift, requiring them to punch in after they got their first table, and to punch out before they performed non-tipped work such as setting up tables and moving chairs. As a result of these practices, the food service workers were not compensated for all the hours they worked and when they worked over forty hours per workweek, they were not paid overtime. The food service workers consistently worked in excess of 10 hours per day without ever being compensated one additional hour of minimum wage. Food service workers were required to do non-tipped “side work” such as, cleaning, in excess of twenty percent of their time at work. During these periods, Capital Grille compensated them at the tipped minimum wage rate rather than the full minimum wage rate as required under law. Furthermore, Capital Grille required tips to be distributed to employees who are not entitled to tips under the FLSA and/or NYLL such as, dishwashers, silverware polishers, and plate scrapers. Finally, customers of private parties were required to pay a mandatory gratuity which they were led to believe went to the tipped food service workers. However, Capital Grille retained portions of the gratuity and/or distributed it to employees not entitled tips under the FLSA and/or NYLL. The lawsuit seeks to recover difference between the tipped minimum wage and the full minimum wage, premium overtime pay for hours worked in excess of forty per workweek, spread-of-hours pay, the amount of tips that were distributed to the employees who are not entitled to tips, uniform maintenance reimbursements, and unlawful deductions made from pay.

Case Update:

Fitapelli & Schaffer, LLP, Joseph & Kirschenbaum, LLP and Berke-Weiss & Pechman LLP are pleased to announce that the Honorable Judge Naomi Reice Buchwald has granted Plaintiffs’ Motion for conditional certification and court-authorized notice to potential class members. Click Here to Read the Decision.

What does this mean?

Tipped employees that have worked at any of the 47 Capital Grille restaurants nationwide will receive notice of the lawsuit and have the opportunity to join.

Who is included?

Anyone that has worked as a tipped employee at any of the 47 Capital Grilles since November 18, 2008 will receive notice of the lawsuit. If you have worked as a tipped employee at Capital Grille since November 18, 2008, you do not have to wait to receive notice to join the case. Please contact Fitapelli & Schaffer, LLP at 212-300-0375 to discuss your employment with Capital Grille.

Anyone who has worked at a restaurant as a server, busser, runner, bartender, barback, host, server assistant, or any other tipped hourly position, within the past six years may have a wage claim. Please contact the employment lawyers at Fitapelli & Schaffer, (212) 300-0375, to schedule a free consultation so that we can discuss your rights under the FLSA and NYLL.

Contact Fitapelli & Schaffer, LLP.

Current and former Capital Grille tipped restaurant workers, who have questions about the lawsuit, should contact Fitapelli & Schaffer, (212) 300-0375.

You can also view the complaint here.