On September 20, 2013, the U.S. District Court (S.D.N.Y.) granted conditional certification and court-authorized notice to potential class members that have worked as tipped employees at 47 Capital Grille locations nationwide since November 18, 2008.
In, Chhab v. Darden Restaurants, Inc., et. al., Ahmed Chhab, Katheryn Shrader, Lance Feldhun, Michael Rella, Vincent Anthony Boreland, and Adrianne Benzion (“Plantiffs”) alleged that Darden Restaurants, Inc., GMRI, Inc., Capital Grille Holdings, Inc., d/b/a The Capital Grille, and Rare Hospitality International, Inc. (“Defendants”) violated the Fair Labor Standards Act (“FLSA”) and the (“NYLL”) when they (1) failed to pay tipped employees the full minimum wage rate; (2) failed to pay tipped employees for all hours worked; and (3) failed to pay tipped employees overtime wages at one and one-half the full minimum wage rate.
In Plaintiffs’ Motion for conditional certification and court-authorized notice, Plaintiffs’ argued that Defendants could not pay tipped employees at the reduced, tipped minimum wage rate because Defendants required tipped employees to spend in excess of 20% of their shift engaged in non-tipped side work and participate in a tip pool that included silverware polishers and/or dish washers. Additionally, Plaintiffs argued that Defendants failed to pay tipped employees for all the hours that they worked as Defendants’ timekeeping system (“DASH”) and Safe and Secure policy often resulted in tipped employees working off-the-clock.
In granting Plaintiffs’ Motion for conditional certification and court-authorized notice, the Honorable Naomi Reice Buchwald found that Plaintiffs had met their burden establishing common practices and FLSA violations across the Capital Grille brand.
Defendants had made several unsuccessful arguments in an attempt to defeat Plaintiffs’ Motion. First, Defendants submitted a number of declarations from tipped employees which claimed that they never performed non-tipped side work in excess of 20% of their shift. In the Court’s decision, Judge Buchwald rejected Defendants’ competing declarations as they would require the Court to evaluate credibility and determine the facts. According to the Court, such rulings are inappropriate at the certification stage.
Next, Defendants argued that Plaintiffs were not similarly situated to putative class members with respect to the tip pool claim as Defendants did not have a common policy or practice regarding sharing tips prior to November 2011. Despite Defendants’ contention, the Court was persuaded by evidence presented by Plaintiffs that silverware polishers and/or dishwashers existed in at least 9 separate Capital Grille locations. Moreover, the Court rejected Defendants’ contention that tip pools at Capital Grille were voluntary as Defendants failed to support their argument with any evidence.
Finally, Defendants’ claimed that Plaintiffs had failed to establish that they and other tipped employees, were victims of a common policy that required tipped employees to work off-the-clock. Defendants maintained that Capital Grille’s time-recording and Safe and Secure policies were facially lawful and that Plaintiffs had failed to establish common deviations from that resulted in FLSA violations. In rejecting this argument, the Court relied on evidence establishing that Defendants maintained control over the timekeeping policies and procedures at TCG, including Safe and Secure, and that these policies often resulted in tipped employees working off-the-clock.
If you have worked as a tipped employee at Capital Grille since November 18, 2008, you do not have to wait to receive notice to join the case. Please contact Fitapelli & Schaffer, LLP at 212-300-0375 to discuss your employment with Capital Grille.