Barolo and Artisanal are the latest to face lawsuits related to the Fair Labor Standards Act. The Barolo complaint (which alleges that non-hourly employees were included in the tip pool) was filed some time ago, but a judge has now authorized it as a class-action suit. Barolo’s attorneys had tried to stall the motion on the basis that the lawyer for the five plaintiffs, the notorious Maimon Kirschenbaum (last seen representing the Habana girls), had failed to specify the job duties of the “similarly situated” employees he was seeking to add to the case. But the judge wasn’t having it: “This is a ridiculous argument,” she writes in the decision you can read below. “The Court has not spent her life under a toadstool — I know what waiters, busboys, and bartenders do when they go to work.”
Meanwhile, a release sent by reps for Outten & Golden LLP (the firm that has also brought cases against Cipriani, the Glazier Group, and Bobby Flay) indicates the Artisanal case is similar to the Barolo one:
The complaint alleges that Mr. Brennan and the corporate entities that co-own and operate Artisanal have unlawfully misappropriated tips earned by servers and other food service workers by allocating a portion of them to maitre d’s and cheese counter employees — workers whose duties make them ineligible to receive tips under federal and/or New York law.
The alleged violations of the federal Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) affected servers, bussers, runners, bartenders and other hourly food service workers at the acclaimed bistro.
Justin M. Swartz, Rachel Bien and Juno Turner of Outten & Golden LLP in New York represent the workers, and will seek to have the lawsuit certified as a class action to recover, among other things, minimum wages, overtime, spread-of-hours pay, and uniform-related expenses for workers who have been employed since June 17, 2003.
The lawsuit alleges that, prior to filing suit, employees raised their complaints about the unlawful conduct to Mr. Brennan in an effort to persuade him to change the restaurant’s policies and to pay workers their unpaid wages without the need for litigation.
Justin M. Swartz stated, “This case challenges Mr. Brennan’s inexplicable decision to continue enforcing his tip policies well after employees at Artisanal questioned them. We believe that Mr. Brennan was not genuinely interested in sensibly resolving the issues.”