Tuesday, January 26, 2010

Sushi Chefs CAN Participate in Tip Pools

The DOL found that itamae-sushi chefs and teppanyaki chefs were tipped employees under the FLSA, eligible to participate in employer-mandated tip pools.

Section 3(t) of the FLSA defines tipped employees as “any employee engaged in an occupation in which he/she customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t). Section 3(m) allows tip-pooling among employees who customarily and regularly receives tips. 29 U.S.C. § 203(m); see also 29 C.F.R. § 531.54.

Itamae-sushi chefs and teppanyaki chefs have direct contact with customers, at the bar counter area (itamae-sushi chefs) and at customer tables (teppanyaki chefs). In support of its opinion, the DOL cited its “longstanding position that counter persons who serve customers may participate in tip pools. Citing FLSA Field Operations Handbook § 30d04(a); Wage and Hour Opinion Letter 1/25/83 (waiter chef who brings food order from kitchen to table and cooks it on hibachi grill in front of customers may share in tip pooling).

Employers should note that not all chefs and cooks may participate in tip-pooling arrangements. Only those who have regular customer contact may do so. Similarly, servers, bellhops, bus persons, counter persons and service bartenders may participate in tip-pooling arrangements. Dishwashers, for example, cannot participate in tip pools. Employers also should note the variations in state laws regulating tip-pooling arrangements. See, e.g., California Division of Labor Standards Enforcement Opinion Letter dated 9/8/05 (tip pool should include only “those employees who contribute in the chain of the service bargained by the patron,” and should exclude any supervisory employee “with the authority to hire or discharge any employee or supervise, direct, or control the acts of employees”).

Saturday, January 2, 2010

Tavern On The Green To Close

NY's Tavern on the Green's $38 Million a Year Was Not Enough

From: Associated Press

By: Verena Dobnik

NEW YORK ( Dec. 31, 2009 ) Tavern on the Green, once America's highest-grossing restaurant, is singing its culinary swan song.

The former sheepfold at the edge of Central Park, now ringed by twinkling lights and fake topiary animals, is preparing for New Year's Eve, when it will serve its last meal. Just three years ago, it was plating more than 700,000 meals annually, bringing in more than $38 million.

But that astronomical sum wasn't enough to keep the landmark restaurant out of bankruptcy court. Its $8 million debt is to be covered at an auction of Baccarat and Waterford chandeliers, Tiffany stained glass, a mural depicting Central Park and other over-the-top decor that has bewitched visitors for decades.

Even the restaurant's name is up for grabs. At stake is whether another restaurateur taking over the 27,000 square feet of space, owned by the city, can reopen as Tavern on the Green.

For 75 years, since it first opened amid the Great Depression, the Tavern has attracted clients from around the world.

"This reminds me so much of Poland!" exclaimed Vermont resident Meg Kearton as she entered for her first time in late December. "It reminds me of a restaurant in Warsaw - the grandeur and the colors."

She came for lunch a few days after Christmas, whose green and white colors fill the Tavern's year-round wonderland of lights, flowers and ornamental curved bull's-eye mirrors.

Hanging over the main Crystal Room, an all-glass dining area, is a century-old chandelier made of green glass, said to have been owned by an Indian maharajah. Two elk decked with red and green ornaments stand at the entrance, and outside is a huge King Kong topiary.

Former Tavern mogul Warner LeRoy, befitting his heritage as son of a producer of "The Wizard of Oz," searched the globe for the whimsical goods after he took over the Tavern's lease in 1973. He died in 2001, leaving the business to his wife, Kay LeRoy, and daughter Jennifer LeRoy.

As the end of the family's operating license approached, the city sought competing bids.

The LeRoys lost to Dean Poll, who operates the stylish Loeb Boathouse restaurant overlooking the Central Park lake and offered to invest $25 million on Tavern renovations. The city awarded him a 20-year license in August, citing his significant capital investment and vision; the new Tavern will incorporate green building technology while a conservatory-style dining space will complement the original Victorian architecture.

Poll also plans an outdoor cafe, bicycle racks and new public restrooms.

The LeRoys, employing more than 400 unionized workers with full benefits, couldn't match that. As the recession hit, they accrued more than 450 creditors.

A spokeswoman for the company running the auction said the LeRoys couldn't be reached for comment Wednesday, but people close to 31-year-old Jennifer LeRoy said she feels heartbroken over the closure and betrayed by a city that pulled the lease to a business her father turned into a New York icon.

The decisive moment in the intellectual-property dispute over the name comes in January. That's when a Manhattan federal judge will either side with the city and rule that the moneymaking name Tavern on the Green, valued at about $19 million, can be used by whoever operates the space or say the LeRoys own it.

If the city loses, Poll will use the name Tavern in the Park, creating a new menu of American cuisine with fresh seasonal ingredients and reopening by March, said his attorney, Barry LePatner.

"We're going to bring the park into the restaurant," said LePatner, by eliminating the thick shrubbery around the premises to reveal Sheep Meadow, where the animals grazed until 1934, housed in the 19th century Victorian Gothic shed that is part of the restaurant.

Just about everything from the current restaurant will be for sale Jan. 13 through Jan. 15 at a Guernsey's auction held live at the Tavern, with a public preview there from Jan. 6 to Jan. 12.

The city's parks department has asked the bankruptcy court to bar the sale of items that "cannot be removed without irreparably damaging the space they occupy," according to an objection that department lawyers filed in court this week.

Those items include lavish decorative elements on the Crystal Room ceiling, chestnut paneling, brass lettering for The Bar and six banquettes.

A judge has scheduled a hearing on the disputed items for Jan. 11.

The dazzling decor was once a backdrop for private milestone events as well as public celebrations from film productions and political gatherings to the special carb-loading dinner on the eve of the New York Marathon.

Recently, as many as 1,500 meals could be served a day, with dinner entrees costing $26 to $42 on a menu heavy with meat and potato dishes, plus standard seafood and a few forays into foreign fare such as risotto.

Not everyone drips with praise for this "tourist trap," as one contributor on the Web site Yelp called it.

Another Yelp contributor didn't mince words: "Besides my risotto being just eh, and besides finding a small bug on my plate, I had a fiasco getting my jacket from the coat check."

That didn't deter a smiling Diane Allen-Smith from coming for a lunch with her husband in December, three years after their Tavern wedding, on a visit from Boca Raton, Fla.

"Our wedding food was wonderful," she said. "And we didn't have to do anything for the rest."

A New York magazine reviewer once asked, "So what if the Eisenhower-era menu is strictly an afterthought?"

But the things that annoy some about Tavern on the Green are exactly what made it irresistible to fans, including three generations of a family from New York's northern suburbs.

"My parents brought us here," said Lisa Holz, who brought along her daughters, 4-year-old Kayla and 7-year-old Erika, and her husband and parents.

It would be her last time at the old Tavern on the Green, and she got sentimental.

"When I was little," she said. "I remember getting tears in my eyes when I looked at all the lights and colors."

© Associated Press, 2009

OSI Restaurants settles suit for $19M

OSI Restaurants settles suit for $19M

TAMPA, Fla.  (Dec. 30, 2009) Outback Steakhouse parent company OSI Restaurant Partners LLC has agreed to pay $19 million to settle a class-action lawsuit filed by women claiming that corporate promotions were tainted by sex discrimination.

The Tampa-based restaurant operator said this week that the consent decree with the U.S. Equal Employment Opportunity Commission “includes no finding of fault on the part of Outback.”

The lawsuit was originally filed in September 2006 on behalf of two Colorado women, Rosalind Martinez and Mindy Byers. The suit alleged they were not promoted beyond low-level restaurant management jobs while less qualified men were made “managing partners,” who could share in restaurant profits. Female employees “hit a glass ceiling at Outback and could not get promoted to the higher-level profit-sharing management positions in the restaurants,” the EEOC lawsuit alleged.

The settlement could include numerous female employees at various locations throughout the United States. The Outback Steakhouse chain totals about 971 restaurants, of which 792 are based in the United States. OSI also operates and franchises the Carrabba’s Italian Grill, Bonefish Grill, Fleming’s Prime Steakhouse & Wine Bar and Roy’s Hawaiian Fusion Cuisine brands.

Liz Smith, the new chairman and chief executive of OSI, said in a statement: “I am very pleased the company and the EEOC have resolved this legacy issue. There is no glass ceiling at OSI, and we do not tolerate discrimination in any form.”

The EEOC also claimed women were denied favorable job assignments, particularly kitchen management experience, which was required for employees to be considered for the top management job in the restaurants.

In addition to the $19 million in the four-year consent decree, which was signed by Federal Court Judge Christine M. Arguello, Outback must:

# Institute an online application system for employees interested in managerial and other supervisory positions
# Employ a human resource executive in the new post of vice president of people
# Hire an outside consultant for at least two years to determine compliance with the decree and analyze data from the online application system to determine if women are being provided equal opportunities for promotion
# Report every six months to the EEOC on progress.

OSI said Tuesday that the consent decree “reflects the policies, procedures and systems that were developed by Outback to provide all employees the opportunity to express interest in and be considered for promotions.”

Smith said further: “I have a profound commitment to ensuring not only equal, but very compelling and rewarding employment opportunities for all individuals and I look forward to building on the processes already in place at Outback to ensure we live up to that standard every day.”

The company, which said it decided to settle the lawsuit with funds provided by insurance rather than litigate the case further, said it was “pleased that the EEOC recognizes [OSI’s] electronic registry as an important tool to provide and track equal employment and advancement opportunities for all employees.”

Mary Jo O’Neill, a regional attorney in the EEOC’s Phoenix district, which covers Colorado, said, “We are pleased with the initiatives that Outback has agreed to in this settlement and look forward to seeing its efforts to promote women into management positions realized.”

Rita Byrnes Kittle, a senior trial attorney in the agency’s Denver field office, said, “We are particularly pleased about Outback’s commitment to a new process for employees to apply for promotion online and for hiring managers to make their selections from the online applications. We think this new process will help give women a fair opportunity to advance in the company.”

An administrator will set up a claims process for women who might be eligible for relief in the $19 million pool provided in the consent decree. Letters will be sent to women who worked in corporate Outback restaurants from 2002 to the present and have at least three years with the company.

Stephanie Struble, the EEOC Denver trial attorney who worked with Byrnes Kittle on the case, said, “We encourage women who believe they were discriminated against by Outback to come forward and complete the claims form to obtain monetary relief.”