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.
Servers at Blue Ribbon Restaurant in Brooklyn, New York have sued the restaurant for unlawfully skimming tips. The lawsuit, filed in Brooklyn federal court, claims violations of restaurant worker rights under the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL).
According to the Complaint, at Blue Ribbon Brooklyn all food service employees participated in a mandatory tip pool. Restaurant patrons’ tips, whether given in cash or by credit card or other cash equivalent, were not paid directly to waitstaff, but rather collected as they were given, deposited in the central till and purportedly distributed daily and nightly to food service workers.
Attorneys for the workers claim that the central till system permitted defendants to make deductions from tips to cover defendants’ cash shortages or losses. For example, a person formerly employed at Blue Ribbon Brooklyn as a waiter perpetrated a scheme to steal money from the restaurant. According to the Complaint he accomplished this theft by exceeding his authorized access to the restaurant’s computer system, recording certain unpaid restaurant checks as paid and pocketing the cash that customers had placed on their tables to pay for their meals.
The lawyers for the servers, waiters, and busboys claim that at the end of each shift, a restaurant employee would total the food and beverages billed to customers. That amount would be removed from the till and deposited in the defendants’ bank account and/or remitted to credit card issuers. The amount remaining in the till after removal of restaurant receipts would be distributed to participants in the tip pool. The money remaining in the till for distribution to the tip pool was, however, less than the full amount tipped by customers, because a portion of the amounts tipped by customers equal to the monies stolen by the thief had been removed and deposited in the defendants’ bank account and/or remitted to credit card issuers. The Complaint alleges that this way, the restaurant made deductions from the tip pool to cover their own losses or cash shortages.
Waiter schools are offering restaurants in the United States a “much needed refresher course,” according to an article in this week’s Bloomberg Business Week.
In a piece captioned Garçon Academy, author David Sax writes that there is a “sorry state of American table waiting,” and that the business of training waiters is gaining traction. According to one restaurant consultant, only 5-15 percent of waiters are doing their job correctly. Sax writes that serving is often a bootstrap business or backup plan in the United States, whereas in Europe, serving is often a career. Waiter schools claim that an increase in the professionalism of the waitstaff is an effective way to boost restaurant revenues and that an investment in education can yield an immediate increase in check averages the day after training.