For two years, Daniel Cordero ladled lobster bisque and served fancy food to guests at New York Institute of Technology’s Old Westbury, N.Y., catering hall.
Cordero and his hard-working co-workers, Kevin Hyde and Kelly Hyde, poured wine and hauled heavy trays piled with plates during weddings, banquets, and department functions held at NYIT’s Long Island campus, where the private college runs a lucrative catering business.
But in 2012, Cordero and his catering-hall colleagues filed a federal class action lawsuit against New York Institute of Technology and its managers. Their court papers say management violated wage and labor laws regarding overtime, uniforms, and gratuities.
Now, after months of motions, depositions and evidence collection, Cordero et al. v. New York Institute of Technology is preparing for a trial.
C.Z. Guest lived here
NYIT set its catering hall in an old mansion it bought next door to its Old Westbury headquarters on Route 25A in 1972. The exquisite Neo-Federal manor came with 300 acres known in another lifetime as “White Eagle” to the duPont family, who used it as a summer home 100 years ago.
The Frederick Guests bought it at auction in 1926, at the height of its Gold Coast era, and called it “Templeton”. Garden colunnist C.Z. Guest planted tomatoes in the kitchen garden and raised orchids in the greenhouse while husband Winston Guest played polo in the back yard. In 1962, C.Z. was photographed in front of her 28-room mansion on the cover of Time Magazine.
After they bought the building from the Guest family, NYIT officials renamed their conference building “DeSeversky Center.” Trustee Alexander de Seversky was credited with negotiating the real estate deal.
Then, capitalizing on the building’s breathtaking architecture, exquisite landscaping and storied past, the money-hungry non-profit college went into the restaurant business.
Lifestyle of the rich and famous
The DeSeversky Center hosted faculty meetings, white tie weddings and fancy, fundraising galas, where guests wined and dined surrounded by Venetian glass and marble.
On May 6, 2005, the Long Island Labor and Employment Relations Association held its spring conference at DeSeversky, with panelist Dr. Philip Nicholson addressing “Wal-Mart’s notorious labor practices” and public policies that do not “protect employees from exploitation and abuse.”
But the current plaintiffs recall their employer was cheap, cheap, cheap when it came to the help. Their legal complaint says that NYIT managers kept their tips and refused to pay them overtime.
They also said the college forced them to buy their uniforms — ruffled shirt, black bowtie and striped tuxedo pants — and refused to pay the cleaning costs.
They insisted that NYIT had committed violations of federal and state labor laws that cover employees like them in the restaurant business.
NYIT’s defense: Labor laws don’t apply to them.
In its answer to the complaint, Fulbright & Jaworski, representing New York Institute of Technology, said there was no law that forbids non-profit employers in the education trade from taking employee tips. The laws on the books simply don’t apply to them. NYIT’s position was summed up in the judge’s order.
NYIT argued that the status of “non-profit” and “educational” organizations confers with it “special treatment” exempting the college New York law.
Baloney, says the Judge
But the federal judge and the New York civil rights warriors at Wigdor Law LLP, which represents the plaintiffs, saw it differently.
Quoting from New York Institute of Technology’s official website, Wigdor attorneys pointed to a page describing services offered at deSeversky, which says a “portion” of the catering hall’s income goes to the college.
Wigdor said sharing its profits with a private party would disqualify the college from the “special treatment” it will need to win this lawsuit. Only “purely” non-profit colleges escape certain labor statutes.
The judge agreed. Nonprofits might get a break for some rules. But only if “no part of the net earnings” is shared with private parties. If a “portion” of the proceeds goes somewhere else, the college is no longer eligible.
Judge Sandra J. Feuerstein quoted straight out of the N.Y. Labor Law: “No employer … shall demand or accept, directly or indirectly, any part of the gratuities received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.”
Judge: ‘Service charges’ were employee tips
“There is no indication that the New York Legislature intended to exclude not-for-profit organizations from the scope of section 196-d,” Feuerstein said, referring to the part of the law that forbids restaurants from taking tips left for waiters and waitresses.
A hefty “service charge” is included in the DeSeversky bill. The plaintiffs said very little of that money went to them. Often, they said, NYIT kept the full fee. A service charge is a “tip” if customers are led to believe it will be paid to workers.
During the summer high season, they said, when they put in long hours, they never received overtime wages.
The court case, in its third year, is now preparing for trial. Both sides have agreed to have Magistrate Judge Gary Brown preside. It will be the latest litigation in a trend of similar lawsuits filed by restaurant workers in recent years over the same things as Cordero.
In March, Richard Cisneros, who owns seven MacDonald’s in New York, agreed to a $500K settlement with 1600 former employees for back wages and uniform cleaning.
In January, 61 former Domino’s Pizza employees received a $1.3 million settlement from New York franchisee David Melton for minimum wage and other violations. Their case was handled by the New York Legal Aid Society. Twenty-four employees were fired after they complained about the violations were ordered back to work by New York Attorney General Eric Schneiderman.
Starbucks Corp. won a federal class action lawsuit over its use of barista tips to pay shift supervisors. The federal appellate judge sided with Starbucks in 2011, holding that shift supervisors can share in the tips because they aren’t “managers” and do the same work as baristas.
Back at NYIT, settlement talks were scheduled between Wigdor and Fulbright & Jaworski, but failed. New York Institute of Technology was ordered to supply the names of former employees who might want to join the class action. The case now proceeds to trial.
Current and former waiters, waitresses, bartenders and other DeSeversky employees can contact Wigdor to participate: (212) 257-6800.