Kelly’s Brew Pub and Restaurant and its owners, Dennis and Janice Bonfantine, unlawfully helped themselves to their servers’ tips and didn’t pay servers for some of their time worked, according to a lawsuit filed Friday in Albuquerque district court.
The class action complaint, filed on behalf of seven current and former employees, accuses the Bonfantines and Kelly’s of violating the Albuquerque Minimum Wage Ordinance (MWO).
The lawsuit contends that after a November 2012 ballot initiative raised the Albuquerque minimum wage, Kelly’s and the Bonfantines “settled on an unlawful response to the minimum wage increase: servers would pay for it themselves, out of their tips. Starting in 2013, Defendants increased the wage rate that appeared on servers’ paychecks so that Defendants appeared to comply with the new law but required servers to pay the house cash each shift, calculated at 2 percent of their total daily sales, plus $3 per hour they worked on the clock.
“After tipping out, servers sometimes owed more in cash than they had actually earned in cash tips during the shift. When this happened, servers were required to pay the difference from their wallets or their paychecks. When questioned about this ‘tip out’ policy, the Bonfantines and managers explained that Kelly’s needed the money to pay for the minimum wage increase and other business expenses.”
Furthermore, according to the lawsuit, “Kelly’s did not pay servers all of their customers’ credit card tips and instead kept a portion of those tips for themselves. Kelly’s also did not pay servers any wages at all for non-tipped work they performed off-the-clock, such as rolling silverware, kitchen prep, and awaiting table assignments.”
The MWO – which Albuquerque voters approved in November 2012 – prohibits these practices. The ordinance raised the minimum wage for tipped workers from $2.13 an hour to $3.83 an hour in 2013 and $5.25 per hour in 2014 and afterwards, with annual adjustments for the cost of living.
Under the ordinance, tipped employees must be allowed to keep all of their tips, and employers cannot require employees to share their tips with the house or with management. The ordinance does not prohibit tip pooling among employees who receive tips, but by law, management cannot participate in a tip pool.
The ordinance also requires employers to pay employees the minimum wage for all hours worked, whether on the clock or off. Non-tipped employees are currently entitled to $8.75 per hour under the ordinance.
The plaintiffs are represented by attorneys at the New Mexico Center on Law and Poverty and Youtz & Valdez, P.C. The attorneys will seek to have the lawsuit certified as a class action to recover servers’ misappropriated tips, minimum wages, statutory liquidated damages, pre- and post-judgment interest, injunctive relief, costs and expenses of suit, and reasonable attorney’s fees.
“A worker simply cannot live on $2 an hour, especially when she can’t keep all of her tips and doesn’t get paid at all for some work time,” said Elizabeth Wagoner, a staff attorney at the Center on Law and Poverty. “This shouldn’t be happening anymore in Albuquerque, but the situation at Kelly’s shows that a strong minimum wage ordinance also needs strong enforcement.”
