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 against Buckhead Corporation d/b/a Delmonico's Italian Steakhouse, Delmonico's Italian Steakhouse of New York, Inc.; Valdosta Corporation d/b/a Delmonico's Italian Steakhouse; Macon Operating Corporation d/b/a Delmonico's Italian Steakhouse; Saratoga Assets, Inc. d/b/a Delmonico's Italian Steakhouse; and John W. Wade II (collectively, "Defendants"). The lawsuit is filed 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 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"). The lawsuit claims that Defendants failed to pay its Tipped Workers the appropriate minimum wage and overtime pay as required under the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). The lawsuit additionally seeks to recover additional damages associated with misappropriated gratuities, spread-of-hours pay, unlawful deductions, uniform related expenses, and additional statutory penalties under the NYLL.
Affected employees include any servers, bussers, bartenders, barbacks, and other similarly situated Tipped Workers who work or have worked at Delmonico's Restaurants within the last six years.
The lawsuit alleges that Defendants failed to compensate its Tipped Workers the full minimum wage (currently $8.75 per hour in NY), as required under the FLSA and the NYLL. The lawsuit argues that the Defendants did not inform Tipped Workers of the tipped minimum wage or tip credit provisions of the NYLL, therefore entitling them to the full minimum wage rate, rather than the tipped minimum wage rate (currently $5.00 per hour in NY). The lawsuit also alleges that Defendants required Tipped Workers to perform significant amounts of non-tipped "side work", in excess of twenty percent of their time at work.& During these periods, Defendants compensated them at the tipped minimum wage rate rather than the full minimum wage rate as required under law. &Additionally, Tipped Workers often worked in excess of forty hours a week, without being compensated for overtime hours as required by the FLSA and the NYLL. This is important because an employer cannot take advantage of hard working employees who work more than forty hours in a work week by failing to compensate them with time and one half pay as required by the FLSA and the NYLL. The lawsuit further alleges Defendants required Tipped Workers to share their hard earned tips with non-tipped employees, such as silverware rollers, who otherwise are not entitled to tips under the FLSA or the NYLL. The lawsuit also claims 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.&Further, Defendants made unlawful deductions from Tipped Workers’ wages, including, but not limited to, deductions for customer walkouts. Additionally, Tipped Workers were required to wear a uniform.& However, Defendants failed to reimburse Tipped Workers for the costs related to maintaining the uniform, and failed to pay Tipped Workers the required weekly uniform-maintenance amount in addition to the required minimum wage.& Finally, this lawsuit seeks statutory damages for failing to provide accurate wage notices and wage statements, as required by the NYLL.
Current and former Tipped Workers at Delmonico's Italian Steakhouse should contact us to see if you are eligible to join the case.& Please call the employment lawyers at Fitapelli & Schaffer, LLP at (212) 300-0375 or visit our website at www.fslawfirm.com. You can also click here to view the complaint.
Additionally, anyone who has worked at any restaurant as a server, busser, bartender, barback, or other tipped position may have a wage claim under the FLSA and/or the NYLL. Please contact Fitapelli & Schaffer, LLP at (212) 300-0375 or visit our website at www.fslawfirm.com to discuss your rights.
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