On Wednesday, September 2, 2015, Fitapelli & Schaffer, LLP filed a class action lawsuit in the United States District Court for the Western District of New York on behalf of all servers, bussers, bartenders, barbacks, and other tipped workers (collectively “Tipped Workers”) who work or have worked at Delmonico’s Italian Steakhouse located at 1553 Central Avenue, Albany, New York 12205 (“Albany Delmonico’s”); 125\u00a0 White Spruce Boulevard, Rochester, New York 14623 (“Rochester Delmonico’s”); 147 North Genesee Street, Utica, New York 13502 (“Utica Delmonico’s”); 2950 Erie Blvd East, Syracuse, New York 13224 (“Syracuse Delmonico’s”); and 3 Northside Drive, Clifton Park, New York 12065 (“Clifton Park Delmonico’s”) (collectively, the “Delmonico’s Restaurants”).<\/p>\n
The lawsuit alleges that the owners and operators of Delmonico’s Restaurants have instituted widespread practices and policies that violate their Tipped Workers’ rights under the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). The lawsuit alleges that Delmonico’s Restaurant failed to pay Tipped Worker’s the minimum hourly wages to which they were entitled. Specifically, Defendants failed to properly utilize the \u201ctip credit\u201d provision that allows them to pay an hourly rate below the regular minimum wage (currently $8.75 in New York).\u00a0The lawsuit alleges that Defendants failed to notify Tipped Workers of the tip credit provision, as required by the FLSA and the NYLL. The lawsuit also claims that Defendants required Tipped Workers to share a portion of their tips with \u201cnon-tipped\u201d employees, such as silverware rollers.\u00a0 Additionally, the lawsuit claims that Tipped Workers were required to spend more than 20% of their shift and\/or 2 hours performing non-tipped side work. This is important because an employer cannot take advantage of the tip credit provision of the FLSA and the NYLL, which allows them to pay a lower hourly rate, while at the same time requiring these employees to share their hard earned tips with other employees who are not entitled to tips, and requiring them to perform non-tipped side work for more than 20% of their shift.<\/p>\n
The lawsuit also alleges that Defendants failed to compensate its Tipped Workers at a time-and-a-half rate for all hours worked in excess of 40 per workweek, as required under the FLSA and the NYLL. Further, the lawsuit alleges that Defendants failed to provide spread-of-hours pay to their employees. Employees who work over 10 hours in a single day, including working time plus time off for meals plus intervals off duty, are required by law to receive an additional hours pay from their employer.\u00a0The lawsuit alleges Defendants made unlawful deductions from Tipped Employees\u2019 wages in violation of the NYLL, and Defendants also required Tipped Employees to wear uniforms and forced employees to bear the costs cleaning and pressing those uniforms. Finally, the lawsuit further alleges that the owners and operators of Delmonico’s Restaurants violated the NYLL by failing to provide its employees with proper wage notices and wage statements.<\/p>\n