Ex-employees sue Lexington restaurant for more than $105,000 in wages

vhoneycutt@herald-leader.comMay 10, 2013 

Three former employees of a Lexington restaurant are alleging in a federal lawsuit that they are owed $105,144.94 in unpaid minimum-wage pay and overtime.

Diego Rosello, Sonia Torres Esparza and Raquel Lara Rojo alleged in a complaint filed May 1 in U.S. District Court that managers at El Toro Cantina and Grill on Nicholasville Road violated the Fair Labor Standards Act.

The Act allows employers to pay less than the $7.25 per hour minimum wage to employees who receive tips, but only under specific conditions.

Jesus Ortiz, the owner of El Toro, said he had not seen the lawsuit, but he didn't "do anything wrong."

"I paid everything" that they were entitled to, he said.

Ortiz said he immigrated to the United States from Mexico with no money about 20 years ago and had been cheated by some people he had worked for, so he was extra careful to make sure his employees were compensated.

"I've been working very hard," he said.

The former employees are being represented by Trent Taylor, an employment law attorney for the non-profit Kentucky Equal Justice Center in Louisville. Taylor said Thursday that allegations of failure to pay minimum wage or overtime "is a latent but prevalent issue" at several restaurants in Kentucky.

Under the Fair Labor Standards Act, the complaint said, employers can take a "tip credit," which allows employers to include in their calculations of wages the amount that an employee receives in tips. The complaint says El Toro was not entitled to apply a tip credit toward the three employees' minimum wage, because they failed to satisfy the required two conditions: The employer must inform the employee of the tip credit, and tipped employees must keep all the tips they receive, except tips included in a tipping pool among employees who regularly receive tips.

El Toro "willfully, or with reckless disregard, carried out their illegal pattern or practice of failing to pay minimum wage and overtime compensation," the complaint said.

The three said in the complaint that El Toro did not pay them minimum wage, "not even the $2.13 (an) hour that an employer who wishes to take advantage of the tip credit" is required by the Fair Labor Standards Act to pay.

The complaint says Diego Rosello, who worked at El Toro from September 2010 to August 2011, worked an average of 64 hours a week and was not paid minimum wage or overtime for more than 3,000 hours.

Sonia Torres Esparza, an employee between July 2009 and January 2012, said in the lawsuit that she worked an average of 59.5 hours a week and was not paid minimum wage or overtime for 4,938.5 hours.

Raquel Lara Rojo, an employee between May 2010 to April 29, 2012, worked an average of 46 hours a week and was not paid minimum wage or overtime for 4,842 hours, according to the complaint.

The former employees allege in the complaint that they were required to pay a portion of their tips to management, in violation of the Fair Labor Standards Act.

The former employees are requesting that the court impose civil penalties on El Toro management for ''illegally requiring employees to remit portions of their tips to management, failing to maintain accurate employment records'' and failing to pay them in a timely manner.

According to the complaint, a court can award additional money equal to what the employees are owed as a punitive measure.

In addition to the unpaid wages, the former employees are seeking damages and attorney fees.

Valarie Honeycutt Spears: (859) 231-3409. Twitter: @vhspears.

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