This lawsuit alleges that the owners of up to seven Benny Burritos and Blockhead Burritos restaurants in New York City failed to pay overtime to its delivery workers and also required those workers to perform off the clock work. The lawsuit alleges a plethora of additional employment law violations as well but this write up deals only with this primary set of allegations.
In downtown New York, most restaurants offer delivery service, usually performed by employees riding bikes. Those employees typically receive an hourly wage below minimum wage plus tips.
Defendants own and operate a chain of Mexican restaurants in New York City, each of which appear to do business under the names Blockhead Burrito or Benny’s Burritos. Each of the plaintiffs work as delivery workers of one or more of those restaurants.
The lawsuit alleges that each delivery worker must perform a variety of non-tipped and non-delivery work while employed at either Benny’s Burritos or Blockhead Burritos. This work included stocking the restaurant; typical janitorial work such as taking out the garbage, mopping and sweeping the restaurants, and cleaning the windows; food preparation; transporting items between the various restaurants; and receiving store deliveries.
So there is the rub: If a delivery worker is getting a below minimum wage hourly salary because that worker is getting tips, then an employer can not maintain that same pay structure if the tipped worker is performing other non tipped work.
The complaint also alleges off the clock work, failure to maintain accurate records, paying employees two separate paychecks to avoid paying overtime and failure to offer meal breaks.
This case alleges a host of labor law violations but primarily focuses on the concept that delivery workers (who get a lower hourly wage because they also get tips) must perform a host of non tip work (at the same lower hourly wage). We will update the lawsuit in mid October, 2015.