On December 31, 2021, Juan Jesus Mata Enriquez and Javal Encarnacion filed a putative class and collective action complaint against 189 Chrystie Street Partners, LP d/b/a The Box, Variety Worldwide LLC, Simon Hammerstein and Javier Vivas in the Southern District Court of New York, which is assigned case number 1:21-cv-11195.
Scope of class and collection action members:
The lawsuit is brought on behalf of all individuals whom Defendants employ or have employed as bussers, bartenders, waiters, waitresses, hosts, hostesses, and barbacks.
Claims in the lawsuit:
The lawsuit alleges the following causes of action on behalf of the class and collective members:
- Failure to pay the minimum wage under the New York Labor Law (“NYLL”). This claim alleges that Defendants failed to pay Plaintiffs and the class action members the statutory minimum wage. Defendants would take a tipped credit and pay Plaintiffs and the class action members below the statutory minimum wage. Before 2020, Defendants also failed to inform Plaintiffs and the class action members of the NYLL’s tip credit provisions. This claim seeks to recover Plaintiffs and the class action members unpaid wages.
- Unlawfully retaining gratuities under the Fair Labor Standards Act (“FLSA”) and NYLL. These claims are based on the allegations in the Complaint that Defendants retained a portion of Plaintiffs and the class action members’ tips, distributed a portion of these tips to managers, and paid the back of the house employees from the Tip Pool. This claim seeks to recover Plaintiffs and the class action members’ unlawfully retained gratuities.
- Recordkeeping violations under the NYLL. These claims alleges that Defendants failed to provide Plaintiffs and the class action members with a Notice and Acknowledgement of Pay Rate and Payday as required under NYLL 195.1 and with an accurate wage statement with each payment of wages as required under NYLL § 195.3. The Complaint therefore seeks to recover for Plaintiffs and class members a civil penalty of $50.00 for each workweek that this violation occurred, with a maximum of $5,000.00 per class member under NYLL § 195.1. The Complaint also seeks to recover a civil penalty of $250.00 for each work day that this violation occurred, with a maximum of $5,000.00 per class member under NYLL § 195.3.
Status of Case:
- December 31, 2021: Plaintiffs filed the Complaint
- March 21, 2022: Defendants’ responsive pleading is due.