Rosa Mexicano has agreed to pay $3.6 million to settle a nationwide class action lawsuit alleging that the upscale Mexican restaurant chain failed to pay its waitstaff minimum and overtime wages and misappropriated tips. The settlement agreement covers an estimated 3,500 employees at twelve locations in New York, New Jersey, Los Angeles, San Francisco, Miami, Boston, Atlanta, Washington D.C., Baltimore, and Minneapolis.
The restaurant workers filed the lawsuit suit in New York federal court in July of 2016, arguing Rosa Mexicano claimed an invalid tip credit and improperly paid their waitstaff at a tipped minimum wage instead of the full minimum wage. The waitstaff claims in their lawsuit that Rosa Mexicano did not inform them they would be paid at tipped minimum wage and misappropriated their tips, violating the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). Tips were shared with “floaters”, who conducted miscellaneous tasks around the restaurant without ever having customer contact. According to the lawsuit, these “floaters” were not entitled to sharing in a tip pool, invalidating Rosa Mexicano’s tip credit. The wage theft lawsuit also claimed that Rosa Mexicano did not pay waitstaff for hours worked over forty per week. Some former servers claimed to work up to 50 hours per week without receiving overtime pay. The lawsuit also alleges that waitresses, waiters, bussers, and bartenders did not receive “call-in pay” required under NYLL, when they reported for work only to be sent home before being able to work three hours. One of the former workers claims this happened on 146 shifts. For these violations, the employees sought to recover unpaid minimum wages, unpaid overtime wages, unpaid “call-in pay”, liquidated damages and attorneys’ fees.
The attorneys for the restaurant workers are Fitapelli & Schaffer, a New York law firm. The settlement is subject to approval by United States Magistrate Judge Ronald L. Ellis.
McDonald’s was hit with seven lawsuits by workers in California, Michigan, and New York, who claimed that the company and some franchise owners failed to pay the employees for all hours worked, failed to pay them overtime, shaved their hours from their time cards, and ordered them to work “off the clock.”
In California, lawsuits were filed against area restaurants, including one filed against 100 McDonald’s owned and operated by the company itself. In Michigan, attorneys for the workers allege that fast food restaurants told their employees to show up for work, but only paid them after having them wait an hour or two for more customers to arrive. The New York lawsuit alleges that McDonald’s failed to reimburse its staff for the laundering and maintenance of their uniforms, or the time spent doing so, even though the restaurant provided them with only one uniform and required a clean uniform to be worn each day. Because of these and other worker rights violations, the lawyers for the restaurant workers are seeking reimbursement for unpaid wages, liquidated damages, and other relief.
These lawsuits come on the heels of several strikes organized in New York to pressure McDonald’s and other fast-food restaurants to increase the minimum wage.
Darden Restaurants, Inc. and its subsidiaries have been sued in Florida for minimum wage, overtime, and other pay violations. Darden owns approximately 1,900 restaurants across the United States, including The Capital Grille, Longhorn Steakhouse, Olive Garden and Red Lobster.
In a Complaint filed in the Southern District of Florida, servers who worked at several Longhorn Steakhouse locations in Florida and at an Olive Garden in Georgia allege that the restaurants failed to pay their employees for all hours worked by forcing their workers to clock in and out after their shifts actually began and before their workday ended and failed to properly maintain accurate employee time records. The workers also allege that restaurants failed to pay them overtime at the rate of one and one-half times their hourly rate of pay for all hours worked over forty. In addition, the employees allege that the restaurants required their waitstaff to perform side work which exceeded twenty percent of their time at work and therefore were not entitled to pay their waiters and waitresses a “tipped” minimum wage below the regular minimum wage of $7.25 per hour.
Lawyers for the workers also allege that similar pay violations occurred at different locations and brand restaurants centrally owned and operated by Darden and its subsidiaries throughout Florida and the United States. Last year, Joseph Fitapelli of Fitapelli & Schaffer, LLP, Maimon Kirschenbaum of Joseph and Kirschenbaum LLP, and Louis Pechman of Berke-Weiss & Pechman LLP (and founder of waiterpay.com), filed a lawsuit on behalf of waiters at Capital Grille alleging similar violations. That lawsuit is still pending in New York federal court.