Despite the recent revised Hospitality Wage Order, the culmination of a multi-year process seeking to bring clarity to the at-times murky wage/hour regulations governing New York restaurants, litigation over these issues continues unabated. This phenomenon was ably remarked upon in a recent New York Times editorial by Zagat’s guide founder Nina Zagat. Now, the most recent installment in this lengthy chapter concerns popular midtown-Manhattan restaurants Alto and Convivio, which have closed recently amidst speculation that the closures are related to a wage lawsuit. Counsel for the restaurants has denied this allegation.
Last August, three individuals who worked as an assistant, food runner and busser, respectively, filed a putative collective and class action against the corporate under the FLSA and New York Labor Law, alleging minimum wage violations under the FLSA, misappropriation of gratuities, failure to pay New York’s “spread of hours” premium and failure to pay the required uniform allowance. In December, District Judge Berman granted Plaintiffs’ request for conditional certification under the FLSA, and permitted the circulation of a notice of pendency inviting “similarly situated” employees to join the lawsuit. Reyes v. Altamarea Group, LLC, 2010 U.S. Dist. LEXIS 139132 (S.D.N.Y. Dec. 22, 2010). Since that time, counsel for the named Plaintiffs has filed approximately a dozen consents to join the case against Altamarea pursuant to 29 U.S.C. § 216(b).
While the actual basis for the closure decision remains confidential and a mystery, it is certainly no secret that class action wage-and-hour litigation continues to be a, if not the, most prominent legal threat to industry employers in New York state, and there is no substitute for reviewing practices with counsel before they become the subject of litigation.