Finds La Tolteca Authentic Mexican Restaurant unlawfully retained workers’ tips
WILKES-BARRE, PA – The U.S. Department of Labor has obtained a consent judgment to recover $1.3 million in back wages, withheld tips and liquidated damages for 51 workers employed by a Wilkes-Barre restaurant and its owner, whose pay practices illegally deprived workers of their full wages.
Entered in the U.S. District Court for the Middle District of Pennsylvania, the judgment follows an investigation by the department’s Wage and Hour Division and lengthy litigation by the department’s Office of the Solicitor, that found several violations of federal wage regulations by La Tolteca Wilkes-Barre Inc., operator of La Tolteca Authentic Mexican Restaurant, and owner Carlos De Leon.
The division found the employers violated the Fair Labor Standards Act by requiring servers and bartenders to surrender a percentage of their tips, based on their total sales, to the restaurant at each shift’s end, instead of contributing them to a valid tip pool. The employers failed to keep records of how the tips were used, making them unable to prove the restaurant’s tip pool was valid. Investigators also determined the employers did not pay three non-exempt salaried cooks overtime wages for hours over 40 in a workweek, as the law requires. Before entering the consent judgment, the court agreed with these findings in granting the department’s motion for summary judgment.
“Customer tips for good service are the property of the people who earned them, not their employers,” said Wage and Hour Administrator Jessica Looman. “Misuse of all or any portion of tips by management violates workers’ rights. This is a common concern in the restaurant industry and the U.S. Department of Labor remains committed to ensuring all workers are paid all of their rightful wages and that businesses do not gain an unfair advantage over competitors that abide by the law.”
The judgment requires the restaurant and De Leon to pay the affected workers $651,778 in back wages and restored tips, plus an equal amount in liquidated damages. The employer will also pay a $26,443 civil money penalty, due to the willful nature of the violations. The consent judgment permanently forbids the employers from future FLSA violations.
“The outcome of this investigation and litigation shows restaurant industry employers that illegally tampering with their workers’ wages and tips violates their rights and can have costly consequences,” said Solicitor of Labor Seema Nanda. “The U.S. Department of Labor will use every tool available, including litigation, to prevent employers from depriving workers of their wages.”
The Wage and Hour Division’s Wilkes-Barre District Office conducted the investigation. The regional Office of the Solicitor in Philadelphia litigated the case.
The division is currently distributing monies owed to workers covered by this investigation. Current and former employees who believe they are owed wages are encouraged to use the division’s Workers Owed Wages online search tool to claim their back wages or to contact the division’s Wilkes-Barre District Office at (570) 826-6316 if they have questions.
The FLSA requires that most employees in the U.S. be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one-half the regular rate of pay for all hours worked over 40 in a workweek.
Learn more about the Wage and Hour Division and workers’ rights, including a restaurant compliance assistance toolkit and a search tool to use if you think you may be owed back wages collected by the division.
Employers and workers can call the division confidentially with questions, regardless of their immigration status. The division can speak with callers in more than 200 languages through the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Download the agency’s new Timesheet App for Android and iOS devices, available in English and Spanish, to ensure hours and pay are accurate.
