Employees Sue Mario Batali Over Waiters' Tips

By Robin Enos on May 17, 2011 | Last updated on March 21, 2019

The server and waiter staff at Del Posto, the super-swank Manhattan Italian eatery owned by Mario Batali and Joe Bastianich, don't like the portions they are getting.

Not food portions. We hear the grub is four-star.

A group of 40 Del Posto restaurant workers claim they suffered wage theft, discrmination, abuse and retaliation at the hands of Del Posto, and its owners, reports Change.org.

The claim arises from a so-called "tip pool," which distributes tip money based on a point system. Wait captains get the most, then bartenders, then front waiters, then expediters. Stockers get one-third of wait captains' share, reports Change.org.

Other sources have referred to the wage claim lawsuit less charitably. Ny.Eater.com describes Batali and Bastianich as "the latest restauranteurs to fall prey to a labor suit from disgruntled workers."

It depends on which side of the bread gets the butter.

Interestingly, the minimum wages laws applicable in New York, and also federal law, only appear to require that $7.25 per hour be paid for straight time up to 40 hours per week, and $10.88 per hour for overtime.

Special rules apply to employees who earn tips, under the federal Fair Labor Standards Act. Thus, an employer who elects to use the tip credit provision must:

1) Inform each tipped employee about the tip credit allowance (including amount to be credited) before the credit is utilized.

2) Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined.

3) Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement.

The employees at Del Posto, and other restaurants owned by Mario Batali and Joe Bastianich, have alleged the tip pool is discriminatory, and also that the house retainage of 4%-4.5% of the wine sales tips is unlawful. If the tip pool averages out so that everyone is making at least minimum wage, it looks like that employee lawsuit might not turn out like the recipe.

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