A State College restaurant has denied any wrongdoing in response to a federal lawsuit by former employees and filed counterclaims against one of the plaintiffs, alleging fraud and misrepresentation.
In a filing in U.S. Middle District Court on Friday, the attorney for Wings Over Happy Valley wrote that the restaurant never required delivery drivers to put a portion of their tips into a pool to be shared with kitchen workers.
Jacob Wilson, Ty Carts, Lewis Grove , Colin Krieger and Branden Ronald filed a lawsuit in in May against Wings Over Happy Valley, and Steven C. Moreira, who they claim is the restaurant’s owner, seeking the return of wages they allege were taken from them and placed in an unlawful and unapproved ‘tipping pool.’
They are seeking class-action designation for the lawsuit also filed ‘on behalf of all other similarly situated individuals,’ which the lawsuit says may exceed 50 drivers who worked for the restaurant in the past three years.
The Fair Labor Standards Act (FLSA) and Pennsylvania Minimum Wage Act require employers to pay employees at least $7.25 per hour, except for tipped employees. Employers can pay tipped employees an hourly rate less than minimum wage if ‘all tips received by such employee have been retained by the employee.’ The exception to that, according to the lawsuit, is an authorized tip pool, where employers can have employees share tips ‘among employees who customarily and regularly receive tips.’
The plaintiffs claim that Wings Over Happy Valley paid them less than minimum wage but required them to share 8 percent of their tips in a pool with kitchen workers, who would not customarily receive tips. They allege the tipping pool was employed for the defendants ‘avoid their responsibility to pay their kitchen workers an appropriate wage.’
They are seeking back pay, liquidated damages, monetary penalties and legal fees.
Wings Over and Moreira denied the claims in a response filed on Friday.
There was a tip jar for kitchen workers, ‘but any contributions to that jar were made by the Delivery Drivers themselves and were entirely voluntary. At no time did Wings Over or Mr. Moreira withhold, take, or in any way place the Delivery Drivers’ tips into that jar,’ according to the filing, which added that the plaintiffs were paid above minimum wage, including tips, at all times of their employment.
The lawsuit claims that the plaintiffs believe the ‘tip pool’ practice continues at the restaurant, but the defendants say that Wilson had been ‘informed in writing that the tip jar in question was voluntary, and therefore it is denied that Plaintiffs can possibly have any good faith ‘belief’ that Wings Over ‘continue[s] to require’ the alleged tip pooling.’
Wings Over denied it was taking driver tips to supplement kitchen worker wages, saying that it paid its kitchen staff a starting wage between $9 and $10.50 an hour during the time period in question, which is over the minimum wage and above the market wage rate for comparable jobs, according to the response.
The filing also denies that Moreira individually owns or operates Wings Over and did not personally employ the plaintiffs.
The defendants asked the court to enter a judgment in their favor and award attorneys fees.
Two of the plaintiffs were not primarily employed as delivery drivers, the restaurant says. Wilson was primarily the driver manager and Carts was also a shift manager, and both were paid in excess of minimum wage excluding tips when performing those duties, the filing states.
Wings Over’s counterclaims are against Wilson, who the defendants say earned $15 an hour when he was acting as driver manager, and $6 an hour plus customer tips when acting as a delivery driver.
‘On many occasions, Mr. Wilson would falsely enter his time as though he were working as Driver Manager, when in reality Mr. Wilson was actually working as a Delivery Driver,’ the counterclaims say, citing specific dates in 2015 and 2016 when Wilson allegedly clocked in as driver manager but reported tips as a driver.
The defendants claim Wilson used the time tracking system to misrepresent the nature of his work and defraud the restaurant. Wings Over is seeking monetary and punitive damages along with attorneys’ fees in the counterclaim.
