June 10, 2021 – “Top Chef” Judge Colicchio, ‘Wichcraft Partners Settle Lawsuit for $180K
The proposed class action detailed on this page has been settled for $180,000.
According to the proposed settlement agreement, ‘Wichcraft and its operators, including “Top Chef” judge Tom Colicchio, have agreed to pay nearly two-thirds of the $180,000 to 23 former delivery workers who alleged they were deprived of proper wages due to the use of an improper tip credit. In a letter submitted to the court on June 4, the plaintiffs stressed that the settlement is “fair and reasonable,” the result of extensive discussions and several mediation sessions with a court-appointed mediator, and an “excellent result” considering the risks of proceeding to trial:
“Moreover, throughout the litigation of the Original Action and the Settlement Action, there were sharply contested factual and legal disputes that went to the heart of Plaintiffs’ claims. To exemplify same, Defendants were adamant that Plaintiffs worked less hours than claimed, and indicated they were willing to provide witnesses to this effect. Considering these risks, and the inherent risks of proceeding to trial, Plaintiffs believe that this settlement is an excellent result, and should be approved as fair.”
The letter in support of the settlement notes that the defendants categorically deny the allegations levied in the lawsuit.
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Twenty-three former ‘Wichcraft delivery drivers claim the operators of the New York City sandwich shops failed to pay them proper wages in accordance with state and federal labor laws.
Filed against the restaurants’ owners—“Top Chef” host Thomas Colicchio, chef Sisha Ortuzar and “Best New Restaurant” judge Jeffrey Zurofsky—the 85-page lawsuit alleges tipped delivery workers at ‘Wichcraft’s locations across New York City were required to spend a considerable amount of time each shift performing non-tipped work without receiving proper minimum and overtime wages.
According to the case, ‘Wichcraft delivery drivers were ostensibly employed as tipped workers and paid at a tip-credit rate, which is less than the hourly minimum wage. The lawsuit alleges, however, that the defendants were not entitled to take a tip credit given the workers spent more than 20 percent of each workday, or two hours per day (whichever is less), performing non-tipped duties, such as preparing and stocking food, assisting kitchen staff, cleaning the restaurant, washing dishes, food running and performing other “general restaurant work” unrelated to their delivery duties.
Per the complaint, the defendants attempted to disguise the workers’ actual duties by designating them in payroll records as delivery workers, rather than non-tipped employees, in order to avoid paying them the full minimum wage rate.
“In violation of federal and state law as codified above, Defendants classified Plaintiffs as tipped employees and paid them at the tip-credited rate when they should have classified them as non-tipped employees and paid them at the minimum wage rate,” the complaint charges.
Moreover, the lawsuit alleges ‘Wichcraft delivery drivers were required to pay out of pocket for “tools of the trade,” such as bicycles and other equipment necessary to perform their duties, and were not reimbursed for such costs.
The plaintiffs go on to claim they were deprived of a portion of their tips in that they were required to share the money with non-tipped workers, such as cooks and cashiers. Further, the workers allege the defendants retained part of the gratuity paid by customers for catering orders. In order to be eligible for a tip credit under state and federal law, employers must, among other requirements, allow tipped employees to keep all tips they receive, according the case.
In all, the plaintiffs argue they and other delivery drivers are owed unpaid minimum wages and time-and-a-half overtime for the hours they worked over 40 each week.
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