We have yet to hear from Team Batali, but Maimon Kirschenbaum and his colleague Denise Schulman have now told us a bit more about the lawsuit against Babbo that they’re filing on behalf of Stephanie Capsolas (a server of two and a half years) and Hernan Ricardo Alvarado (a runner and back waiter of five to six years). According to Kirschenbaum, the server made about $239 or $256 in tips on a given night, and the runner received about $120 or $130 (in addition to their $4.60 hourly wage); however, their tips were illegally retained owing to the fact that, as a tip deduction sheet is said to indicate, Babbo deducted from the tip pool the equivalent of 4.5 percent of the wine sales (on a given night, six waiters are said to have made about $4,500 in gratuities).
Here’s how Kirschenbaum explains it: “The restaurant pays the sommelier a salary, that’s Fact A. Fact B is that the restaurant retains 4.5 percent of the wine sales by deducting it from the tip pool. The fact that the restaurant retains 4.5 percent is an illegal deduction of tips. The fact that they’ve keyed it into the wine sales is an attempt to either justify to the employees that they’re retaining this amount by saying they provide a salary to the sommelier [via tips] or trying to trick the employees by showing they do tip out these sommeliers. But one way or another it doesn’t go into the pockets of these sommeliers — it goes into the pockets of Babbo.”
Kirschenbaum also alleges that runners received a cut of the tip pool on nights when their sole job was to polish and arrange silverware and glassware, something he says is illegal since they weren’t providing direct customer service (on those nights, Kirschenbaum says, the runners should have been salaried).
Another complaint: Capsolas and Alvarado allegedly weren’t properly compensated under the New York “spread of hours” law, under which an employee must be paid an additional hour’s premium if they work more than ten hours per day (according to Schulman, a typical shift was eight or nine hours but some were longer).
Kirschenbaum is confident he’ll be able to make the case class-action — he says he’s received similar certification for recent lawsuits against Milos, Masa, Park Avenue, and Westway Café.
Update: A Batali rep says both he and Bastianich are away on summer vacation and cannot be reached for comment.
Earlier: Batali and Bastianich Sued for Failure to Pay Overtime, Minimum Wage