Dallas BBQ Sued For Alleged Failure to Pay Correct Overtime and New York Spread of Hours Pay to Its Waiters

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Dallas BBQ Sued For Alleged Failure to Pay Correct Overtime and New York Spread of Hours Pay to Its Waiters

Dallas BBQ restaurants in New York have been sued for violations of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law.  The class action lawsuit, Carino v. Broadway & 166, LLC d/b/a Dallas BBQ, et al., was reported in Crain’s New York.

The lawsuit alleges two violations of the law which are frequently made by New York restaurants.  Many New York restaurants fail to pay “spread of hours” pay to their waiters and busboys.  In New York, waiters and busboys must be paid an additional hour of minimum wage (in addition to all other wages due) on each day in which the worker’s “spread of hours” exceeds ten.  In addition, New York restaurants frequently pay waiters and busboys incorrectly because they compute overtime by taking the tip credit (currently $2.60 per hour) 1.5 times even though that tip credit may only be taken once.  In other words, restaurants often unlawfully calculate overtime for tipped employees as follows:

Minimum wage of $7.25
(minus the $2.60 tip credit): $4.65
Multiplied by overtime rate: x   1.5
Overtime rate:
$6.98

The lawful way for restaurants to calculate overtime pay for its tipped employees is as follows:

Statutory minimum wage $7.25
Multiply by overtime rate: x   1.5
$10.88
Subtract the tip credit: – $2.60
Overtime rate: $8.28

The Dallas BBQ lawsuit was filed by attorney Louis Pechman, a partner with Berke-Weiss & Pechman LLP, and the founder of waiterpay.com.

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