What's on Tap

What's on Tap

Cary restaurant settled similar suit with employees in 2011

Posted March 3

An Asian Cuisine  (Facebook)

— An Asian Cuisine and its sister company North Carolina Culinary Ventures agreed to pay $20,000 in back wages and damages to six former employees who accused the companies of labor violations that mirror those cited in another lawsuit filed by current and former employees last month.

In a lawsuit filed in 2010, An and North Carolina Culinary Ventures were accused of requiring wait staff to participate in a tip pool that included managers.

According to the U.S. Department of Labor's Fair Labor Standards Act, tip pools are prohibited from including any employees who do not normally receive tips, including back of house employees and chefs.

Lawyers for An argued that the "allegedly ineligible employees did not have sufficient 'managerial control' to invalidate the tip pool," and those employees "received tips out of the tip pool only sporadically, and in no more than 14 weeks."

The parties were able to settle via mediation, with An and North Carolina Culinary Ventures agreeing to pay damages to the employees and cover attorney fees.

The allegations are very similar to a lawsuit filed in February by a group of current and former employees citing unpaid minimum wages and overtime compensation.

In the filing dated Feb. 21, former An server Brandon Kelly alleges that the restaurant "had a systemic company-wide policy, pattern or practice of failing to pay their employees at the appropriate statutory rate for hourly work, or for hours worked in excess of 40 each week at a rate of one and one-half their regular rate of pay."

An is also being accused of requiring servers to remit a set percentage of their tips/wages into a mandatory tip pool, which was divided with employees who were not customarily or regularly tipped. Those employees included sushi chefs and helpers and other back-of-house employees who did not interact with customers. The suit also names a back-of-house manager who was part of the tip pool.

The lawsuit, which was filed in the United States District Court for the Eastern District of North Carolina, was brought individually and as a class action suit.

Kelly was employed with An from June 2010 until it closed this past January. He earned at least one "Employee of the Year" award during his time there. In the suit, Kelly claims he worked about 50 hours over a six day period each week.

Wai Man Tom, a current employee of An's parent company NC Culinary Ventures, is also a plaintiff in the suit.

Since joining the company as a server in 2012, Tom alleges that he has not been paid correctly either.

In the lawsuit, it is alleged that An and its co-defendants had "internally investigated similar mandatory surrendering of tip issues in the past, including the taking of tips by employees who were not customarily tipped employees, and have thereafter terminated the employment of at least one employee connected with the tip misappropriation, and retroactively compensated other employees for their surrendered tips" in an effort to resolve similar issues.

The employees are seeking unpaid straight-time compensation, unpaid overtime compensation and illegally withheld and misappropriated tips or wages, in addition to damages and court costs.

An Asian Cuisine, which closed its doors Jan. 30, is an extension of Umstead Hotel and Spa in Cary and owned by Ann Goodnight. Each were named defendants on the lawsuit, as was SAS Institute and N.C. Culinary Ventures.

Goodnight and her husband, SAS CEO Dr. Jim Goodnight, founded An in 2006. The restaurant's culinary team was led by director Steven Devereaux Greene, who is also the executive chef of The Umstead Hotel and Spa.

Calls to legal representatives of SAS and Goodnight have not been returned.

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