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More on the Batali, White, etc "tip litigation"


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#1 Rail Paul

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Posted 02 September 2010 - 01:56 PM

The WSJ has an article today sorting out some of the issues in the tip litigation brought against many NY restaurants.

In addition to the un-entitled staff (silver polishers and managers, for example) other places require staff to pay for their own laundry expense. That's a violation of NY law. The Batali houses, it's alleged, subtract 4.5% from the wine sales from the tip pool before making a tip allocation. This may be to pay a part of the sommelier commission. Another complaint is the 20% assessed against groups isn't passed on to the staff in its entirety.

Two law firms have brought the bulk of litigation. One partner says that each suit brings inquiries from people in other places, and they prefer to have several participants before pursuing discussions with the house


Mr. Kirschenbaum also dismissed criticisms. "We don't chase people, people chase us," he said. "They're being wronged, they're being taken advantage of by big corporations with a lot of power."

Mr. Kirschenbaum said he expects the number of plaintiffs in the Morimoto case to grow, as it did in the suit against Mr. Batali. Initially, that suit was filed last month on behalf of two employees at Babbo; it has now grown to include at least 20 employees at nearly half a dozen restaurants.

The suit alleges that the restaurant was improperly taking 4.5% of its wine sales every night and subtracting it from the tip pool.

Representatives for Messrs. Batali and Bastianich have declined to comment.

Some say the suits underscore longstanding labor violations in the industry.

"I think there are a lot of practices in the restaurant industry that were going on for a long time that were ripe for litigation," said Cynthia Estlund, a professor at New York University School of Law.

Lorelei Salas, director of strategic enforcement for the New York State Department of Labor's city office, said the office has seen a rise in the number of wage complaints. "The restaurant industry is one where we have a lot of issues," she said.

The Restaurant Opportunities Center of New York is careful when launching a campaign against a restaurant group in ensuring that there is a pattern, said Rekha Eanni-Rodriguez, co-director of the advocacy group. "We always make sure that it's a group of workers, then we know it's not just one or two disgruntled workers," she said.

Furthermore, ROC works to change companywide policies in its campaign and always negotiates directly with the company before filing a suit, she said. ROC is currently in negotiations with Batali-Bastianich Hospitality Group.

"A lot of these new lawyers who are doing these lawsuits are only seeking relief for their workers, but it may not always have an impact on the rest of the workers in that workplace and it often doesn't make a statement to the industry as a whole," she said.


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#2 Wilfrid

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Posted 02 September 2010 - 02:58 PM

Front-of-house staff, for example, don't have to pay laundry expenses? That surprises me. Unless I am misunderstanding.

#3 TaliesinNYC

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Posted 02 September 2010 - 09:03 PM

I can't seem to find the clause in the Labor Law but the usual language goes something like this:

that the person for whom the services are performed may provide office facilities, clerical support, and supplies for the use of the agent or broker, but the agent or broker shall otherwise bear his or her own expenses, including but not limited to automobile, travel, and entertainment expenses



#4 Suzanne F

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Posted 02 September 2010 - 09:35 PM

Front-of-house staff, for example, don't have to pay laundry expenses? That surprises me. Unless I am misunderstanding.

Maybe it depends on who provides the uniforms? Just guessing -- as BoH I assumed that if I wore my own whites, I'd be responsible for their upkeep; so I always wore the rental stuff.

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#5 marauder

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Posted 02 September 2010 - 11:38 PM

You would get every restaurant in NYS with the laundry language for the FOH.

Another new one that many groups are using is interesting. They are requiring that FOH staff turn in all cash tips. Those tips, coupled with the CC tips, are then paid out weekly. Restaurant gets a nice short term cash flow bump until they decide to settle up 6-7 days later.

#6 Wilfrid

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Posted 07 March 2012 - 04:43 PM

Settling for over $5 million, reports say. Ouch.

#7 Rail Paul

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Posted 07 March 2012 - 08:31 PM

You would get every restaurant in NYS with the laundry language for the FOH.

Another new one that many groups are using is interesting. They are requiring that FOH staff turn in all cash tips. Those tips, coupled with the CC tips, are then paid out weekly. Restaurant gets a nice short term cash flow bump until they decide to settle up 6-7 days later.


Interesting game. If the house collapses / goes belly up in the meanwhile, the tip account may be considered part of the general assets of the business.

One technique I've noticed here in NJ, and in FL, is to have the coupon specials apply only to credit card payment meals, not to cash. It seems that some waitstaff would buy a number of coupons and insert them into the pile, and remove cash. A person leaves $50, you insert the $20 off coupon, and take $20 from the $50. House is none the wiser, and hopefully the guy tipped on $50.

“Jazz musicians just get better and better as the years go by. I think chefs are the same way. You know who you are.”

 

...Jonathan Waxman