The case, Jaime Urtubia, et al. v. B.A. Victory Corp., et al., Index No. 11-cv-2901, was filed in the U.S. District Court for the Southern District of New York. After a four day trial, the eight person jury unanimously returned a verdict in favor of three former Buenos Aires waiters who had worked at the restaurant between 2009 and 2011. The wage and hour claims were filed pursuant to the Fair Labor Standards Act (“FLSA”) and New York state labor laws to recover damages for unpaid overtime pay, minimum wages, spread of hours wages, and misappropriation of tips.
At trial, the plaintiffs alleged that the owners of the restaurant, Ismael Alba, and his wife, Karina Demarco, knowingly violated the labor laws governing tip credits and tip pooling by forcing their wait staff to give all cash and credit card tips each day to the husband and wife team, who then retained exclusive control and possession of all tip money. Plaintiffs proved that the owners never gave the waiters any documentation about the total tip money collected or provided a formula for distribution of the tips and simply distributed a portion of the tips to employees once a week. Such an “arrangement”
Pursuant to federal law, the jury awarded plaintiffs back wages for overtime and minimum wage violations, and awarded 100% (double) liquidated damages in addition to the back wages. Pursuant to their New York Labor Law claims, plaintiffs recovered withheld tips, spread-of-hours pay (the failure to pay an extra hour of pay on days in which employees worked more than ten hours) and 25% liquidated damages. In addition to the back wages and liquidated damages which will be paid to the plaintiffs, the defendants are liable for the plaintiffs’ attorneys’ fees and costs.
At trial, the plaintiffs were represented by attorneys Jeanne Christensen, Maurice Recchia and Brittany Weiner of Imbesi Christensen.