Bronx, New York-based 1761 Fonda Mexico Magico LLC, which does business as Mexico Magico, and one individual are the defendants in a proposed collective action that claims individuals employed as delivery drivers were not paid proper wages under the Fair Labor Standards Act (FLSA) and New York labor statutes. The plaintiff claims he worked as a food preparer, dish washer, and ostensibly as a delivery worker, yet was required to spend a significant amount of his time each day performing non-tipped duties unrelated to deliveries. The plaintiff and similarly situated workers, the lawsuit continues, were allegedly not paid proper time-and-a-half hourly overtime wages for all hours worked over 40 in a week or spread-of-hours pay for shifts that lasted longer than 10 hours in a day.
Under the FLSA and New York Labor Law, the defendants unlawful took a tip credit on the plaintiff’s wages to which they were not entitled since his non-tipped work duties exceed 20 percent of each work day, the case argues. Further, the defendants allegedly employed this unlawful practice to disguise the plaintiff’s actual duties in payroll records “to avoid paying the plaintiff] at the minimum wage rate.”