Benny’s Burritos and Blockheads Restaurants will pay several restaurant workers including dishwashers, cooks, porters, and delivery workers $110,000 for minimum wage, tip credit, record keeping violations of the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”).
According to the wage theft lawsuit, the restaurant workers spent more than 20% of their workday performing non-tipped work including various tasks such as making salad dressing, preparing delivery bags, taking out the trash, arranging items in the basement, stocking sodas in the fridge, bringing up drinks from the basement, making chips, cleaning the kitchen, taking out mats and bringing them down to the basement for cleaning, mopping and cleaning the bathroom, sweeping and mopping the basement, washing dishes, and stocking deliveries. Because of this the workers claim they should not have been compensated the “tipped minimum wage.”
Under the FLSA and NYLL, employers are allowed to take a “tip credit” and pay waiters, bussers, and bartenders below the federal minimum wage. However, the United States Department of Labor regulations provide that a restaurant will not qualify for the “tip credit” for employees that spend more than 20% of their time performing non-tipped work. Additionally, employers lose the privilege of paying workers a tipped minimum wage when they require employees to share tips with workers who are not entitled to tips, such as expediters or other back of house workers.