Employers sometimes try to pay employees less by hiring them for one kind of work and then requiring them to do another kind at the same wage. The complaint for this class action claims that workers at Manhattan Diner (officially Karpenisi Rest, Inc.) were hired as tipped workers but made to do other non-tipped work. The complaint also alleges that they were not paid for all hours worked or paid proper overtime.
The class for this action is all persons who were similarly situated and employed by the defendants in this case on or after October 18, 2015.
The plaintiffs in this case, Nereo Cuahua Tetlactle, Placido Xochiquiquisqui Garcia, and Sergio Cuahua Mayahua, were hired as delivery workers and their work was governed by the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL).
Delivery workers are considered tipped employees. As such, they can be paid less than the minimum wage, with tips being said to make up the difference. The difference between the tipped minimum wage and the minimum wage for all workers is called the tip credit. The plaintiffs were paid at a lower, tipped rate for all work they did for the diner.
However, the plaintiffs were also required to perform non-tipped duties for a considerable part of their workdays, including helping with food preparation, dishwashing, cleaning the premises, and so on. Because these duties required more than 20% or two hours of their days, the complaint alleges they should not have been paid for them at the tipped rate.
The complaint claims the plaintiffs were often required to work more than their scheduled hours, but were not paid for the extra hours worked.
When this brought the total number of hours to more than forty in a week, the complaint says they were not paid overtime.
They were not given rest or meal breaks, the complaint claims, although the diner subtracted $4 a week from the pay of at least one of the plaintiffs for food he never received.
According to the complaint, they were also required to pay for their own work gear, including bicycles, helmets, and bicycle maintenance.
The complaint claims that the diner did not keep proper records and falsified pay stubs to indicate that the workers had worked fewer hours than they actually had. The workers said they were not given proper notification of FLSA or NYLL overtime or wage policies and were also required to sign a document they were not permitted to examine in detail before they were given their paychecks.