Mario Batali’s NYC restaurant Babbo is once again the defendant in a lawsuit for unpaid wages. A former busboy has sued the famous chef and his acclaimed Italian restaurant. The complaint seeking class certification contains allegations that Batali and his business partner Joseph Bastianich owe the Plaintiff for unpaid overtime and full minimum wages. The lawsuit, Case 1:17-cv-08302-ALC, https://www.scribd.com/document/365882635/Babbo-wage-lawsuit-2017 was filed in U.S. District Court for the Southern District of New York on October 27, 2017. The complaint asks for an amount of compensation to be determined at trial.
This case is just the latest in what has been a slew of lawsuits in New York City and the surrounding area accusing restaurants of stealing wages and tips from employees. In 2012, Batali and Bastianich agreed to settle tip and wage theft allegations for over $5.2 million. That same year Lenny’s sandwich chain settled a similar dispute for $5.1 million. In 2015, former Top Chef alum Brian Voltaggio was the defendant in a wage theft lawsuit in Baltimore. In 2016, Babu Ji, the popular New York City Indian Restaurant closed its doors after facing two wage theft lawsuits.
Wage and hour laws can be confusing, in part because multiple laws may govern the same issue. For instance, the federal Fair Labor Standards Act (FLSA) sets national rules and standards regarding the minimum wage, overtime pay, and hours. New York State also has rules and standards that apply to minimum wage, overtime pay, and hours. The minimum wage is higher in New York than the one set by the FLSA. It is higher in certain parts of the state than others. When multiple laws cover your place of employment or job, the highest applicable minimum wage is the one you should be receiving.
For restaurant employees, the laws can be particularly confusing because many fit the category of “tipped” employees. Tipped employees are those who receive at least $30.00 per month in gratuities. Employers have the option to pay these employees what is called “the tipped minimum wage.” This means an employer may pay you a smaller hourly cash wage and apply a portion of your tips as a credit toward the full minimum wage. The amount of the tip credit is not discretionary. The government sets the amount.
For example, let’s assume that minimum wage is $10.00, and the tipped minimum wage is $6.50. An employer may pay you a $6.50 hourly cash wage and apply a $3.50 tip credit for each hour. Employers must notify employees in advance of using the tip-credit model and must tell them the amount of the tip credit they will be applying.
What happens when tipped employees perform work that is not part of their ordinary duties? In other words, they do untipped work. Can employers still pay the lower, tipped minimum wage? If an employee has two jobs, one that generates tips and one that does not, the employee must receive the full minimum wage. However, if the work is “tip-related,” the employer may claim a tip credit. The FLSA calls this side work. If a tipped employee spends more than 20% of his or her time doing side-work, the employer must pay the full minimum wage.
As you can see from the information above, there is ample room for restaurant employers to steal wages and misappropriate tips. Any time an employer does not pay employees the full amount the law requires, it is theft. Refusing to pay overtime, forcing employees to share tips with managers and misapplying tip credits are common ways individuals who work in food-service lose wages.
Octavio Quinones, the busboy who filed this most recent lawsuit against Batali and Bastianich, claims that the Defendants violated several wage and hour laws during the time he worked at Babbo. The allegations include:
Failing to pay the full minimum wage. Octavio claims in his complaint that the Defendants did not provide legal notice to him or other employees that they would apply a tip credit against wages. He received the tipped minimum wage of $7.50 per hour. Because his employer never told him it would use a $3.50 tip credit, the employer he claims, owes him the full $11.00 hourly wage. Because there was no notice, paying the tipped minimum wage was unlawful, and the employees should receive the full amount of minimum wages.
Violating the FLSA overtime rules by failing pay the correct rate of overtime pay. Overtime pay is 1 ½ times the regular rate of pay. For every hour an employee works over 40 in a work week, he or she should receive overtime pay. Quinones alleges in court papers that Batali used the tipped minimum wage to calculate overtime instead of the full minimum wage.
Quinones also claims that for many shifts he spent more than 20% of his time performing work that did not generate tips. He spent time cleaning floors, folding napkins, and setting up tables. For this time, Quinones requests the full minimum wage rate.
Quinones’s complaint seeks to certify a class of current and former employees who may have been subjected to wage and hour violations. The last wage and tip theft case against Batali and Babbo took years to settle. Time will tell if the parties can reach an amicable resolution of this one.
The case described above is representative of many of the wage theft claims we have handled on behalf of restaurant employees in the New York City area. Leeds Brown Law, P.C. has spent decades representing workers in tip theft, unpaid overtime, unpaid minimum wage and more. If you work in a restaurant or any other industry, and your employer is not paying you wages the law requires, contact Leeds Brown for a free consultation. Our unpaid wage lawyers can help you recover the wages your employer owes.
Someone is available to take your phone call 24/7 so don’t wait. Start collecting the overtime, tips, and wages that belong to you. Call Leeds Brown at 1-800-585-4658 today.
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