Servers at Le Pain Quotidien restaurants in New York City, claim they have been unlawfully denied minimum wage and overtime pay, according to a class action lawsuit filed in Manhattan federal court. The lawsuit alleges that the restaurants paid its waiters and waitresses a reduced tipped minimum wage rate, but did not satisfy the requirements under the Fair Labor Standards Act or the New York Labor Law by which they could take the “tip credit.” Attorneys for the workers claim that the restaurant should not have paid the workers the federal tipped minimum wage because the restaurant failed to inform the waiters and waitresses of the tip credit provisions of the law. Attorneys for the workers also claim that the restaurant was not able to take the tip credit because the waiters and waitresses were required to perform substantial non-tipped “side work,” that equaled more than twenty percent of their time at work. That “side work” included polishing silverware, washing the tables, slicing and preparing the bread, and sweeping and mopping floors. Under the Fair Labor Standards Act (“FLSA”), employers are allowed to take a “tip credit” and pay waiters, bussers, and bartenders below the federal minimum wage of $7.25 per hour. (Note: minimum wage in New York is now $8.00 per hour). For example, the “tip credit” for waitstaff in New York is currently $3.00 per hour, meaning that waiters, busboys, and bartenders can be paid an hourly minimum wage of $5.00 per hour. The United States Department of Labor regulations provide, however, that a restaurant will not qualify for the “tip credit” for employees that spend more than 20% of their time performing non-tipped work. Restaurant workers and employers in New York State should note that the twenty percent rule is already in effect for waiters, bussers, and bartenders in New York. The New York State Department of Labor’s Hospitality Wage Order specifically provides a twenty percent rule for restaurants that take a tip credit. Subpart 146-2.9 of the Hospitality Wage Order states:
On any day that a service employee or food service worker works at a non-tipped occupation (a) for two hours or more, or (b) for more than twenty percent (20%) of his or her shift, whichever is less, the wages of the employee shall be subject to no tip credit for that day.
The case against Le Pain Quotidien seeks back wages, penalties, and attorneys’ fees and an injunction to protect workers rights.
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