Law.com, Eatery Accused Of Shorting Tipped Workers For Side Tasks

full article from law.com

By Irene Spezzamonte · Aug 4, 2021, 6:21 PM EDT

A Texas-based Mexican restaurant chain deprived its workers of minimum wage for the nontipped work they performed, a former employee said in a proposed class and collective action filed in Colorado federal court.

The former worker for On the Border Acquisitions LLC -- which operates restaurants in the U.S. and South Korea -- accused the chain Tuesday of violating the Fair Labor Standards Act and Colorado Wage and Hour Laws by failing to pay its workers minimum wage for the time they worked during which they could not interact with customers and earn tips.

"As a result, plaintiff and the class members were engaged in dual occupations while being compensated at the tip credit rate," the complaint said.

On the Border has over 150 locations throughout the United States and nine in Seoul, according to the company's website.

Brandon Shaw, who worked as a server and caterer at an On the Border restaurant in Colorado Springs, said the company required workers like him to spend up to two hours performing side work like cleaning trays and filling condiments before and after the restaurant was closed.

Such work prevented workers from interacting with customers and earning tips, and they should therefore have been compensated at the full minimum wage rate, he said.

The company should have paid the workers for such nontipped work under a recently proposed U.S. Department of Labor rule that says workers are no longer performing tipped work if they engage in more than 30 continuous minutes of nontipped work, the complaint said.

Instead, the company paid its workers using a tip credit provision under the FLSA, but violated federal and state law when it did not notify them it did so, according to the complaint.

Workers alleged they were also deprived of minimum wage because they were required to pay about $200 for their uniforms and additional uniform-related maintenance costs without being reimbursed, in violation of Colorado law.

Shaw seeks to represent a collective under the FLSA and a class under Colorado law of current and former tipped employees who worked for On the Border for at least one week in the past three years.

Through his hybrid class and collective suit, Shaw wants to recover the difference between the minimum wage and the tip credit adjusted minimum wage for each hour the proposed members worked, reimbursement for all the work-related expenses, and attorney fees and costs.

Anthony Lazzaro of The Lazzaro Law Firm LLC, which is representing Shaw, said Wednesday that the case is another example of a restaurant chain taking advantage of its workers.

"We talked to dozens of employees who had, in addition to their serving [duties], to wash dishes, take out the trash, clean bathrooms occasionally," Lazzaro told Law360. "It's a pretty egregious violation of the tip-credit law."

On the Border did not immediately respond to a request for comment Wednesday.

Brandon Shaw is represented by Don J. Foty of Hodges & Foty LLP and Anthony J. Lazzaro, Alanna Klein Fischer and Lori M. Griffin of The Lazzaro Law Firm LLC.

Counsel information for On the Border was not available Wednesday.

The case is Shaw v. OTB Acquisition LLC, case number 21-cv-02104, in the U.S. District Court for the District of Colorado.

--Editing by Vincent Sherry.