Some people receive tips as part of their work—waiters and delivery persons, for example. Employers may take a “tip credit” and pay these workers less than the minimum wage for their tipped duties. However, the complaint for this class action claims that two Sophie’s Cuban Cuisine restaurants paid workers less for non-tipped duties as well. Also, the complaint claims that the employers violated other federal and state labor laws as well.
The class for this action is all similarly-situated persons employed by the defendants in this case on or after October 29, 2015.
Plaintiffs Bernardina Acteopan and Ana Karen Ramirez Acteopan worked at the restaurants, which are located on East 23rdStreet, in the Flatiron District, and New Street, in the Financial District of New York, New York. Their work falls under both the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL).
Under both laws, if an employee’s non-tipped duties take up more than 20% or two hours of each day, the employer may not take a tip credit and must pay at least minimum wage. The Acteopans claim that they spent more than this time at non-tipped duties, such as putting up and taking down chairs, cleaning and mopping, preparing food, washing towels, and so on.
No accurate records were kept of the hours they worked, the complaint says. Also, it alleges that the Acteopans regularly worked more than forty hours each week but were not paid for the extra hours—not at overtime rates, and not even at their straight rate of pay.
In fact, it claims that neither woman was paid at all for work between 8:00 AM and noon on certain Saturdays. Also, it says that five sick days were deducted from Bernardina Acteopan’s pay, even though she had never taken them, and that she was not given any meal breaks or rest periods.
In addition, although the two restaurants were supposedly corporations (Mahabir Enterprises, LLC and Sophie’s Restaurant #3, LLC), the complaint claims that the owners did not properly maintain them as corporations. For example, the complaint claims that they did not hold annual meetings, intermingled assets, diminished or transferred assets to avoid full liability, and otherwise operated the companies for their own benefit.
The complaint claims violations of the minimum wage and overtime provisions of the FLSA and NYLL, among other things.