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Chop't Accused Of Underpaying Delivery Workers

Law360—Jonathan Randles

Chop't Creative Salad Company LLC was accused Tuesday in a putative class action lawsuit of paying its New York City delivery employees below state and federal minimum wage and failing to pay overtime wages or compensate them for the cost of bicycles used to deliver food.

The lawsuit was brought by four current and former employees who allege operators of the salad restaurant chain have taken unfair advantage of the Fair Labor Standard Act's tip credit, which allows employers to credit a portion of their workers' tips toward their minimum wage obligations. Chop't requires its delivery workers to do at least two hours of non-tipped side work, including food preparation and dishwashing, the complaint says.

Chop't was not allowed to take a tip credit because it failed to meet the strict requirements that would allow it to do so under federal and New York labor law, the lawsuit said.

"Defendants consistently required delivery workers to perform general food preparations, dishwashing, maintenance work, and/or other non-tipped work ('side work') for two hours or more and more than twenty percent of their time at work," according to the complaint.

The employees also allege Chop't fails to pay delivery workers overtime pay, off-the-clock pay, call-in pay and has failed to provide proper wage statements and wage notices to similarly situated workers. In addition, Chop't is accused of making unlawful deductions from delivery workers' pay to cover the cost and maintenance of their bicycles.

The lawsuit seeks certification of a collective action under the FLSA on behalf of all Chop't delivery workers employed by the company three years before filing the lawsuit. Plaintiffs also seek a class certification under state labor laws on behalf of similarly situated workers employed by Chop't in the previous six years.

The complaint seeks monetary damages for alleged violations of state and federal law, unpaid minimum wages and overtime and reimbursement for business expenses and unlawful wage deductions.

The lawsuit names as defendants Chop't and company co-founders Colin McCabe and Tony Shure and CEO Nick Marsh.

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The lawsuit is brought by plaintiffs Angel Ortiz, Ored Trujillo, Antonio Fuentes and Isaac Barreto. All four have worked as Chop't delivery employees in locations throughout New York City.

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The plaintiffs are represented by Justin M. Swartz and Molly A. Brooks of Outten & Golden LLP and C.K. Lee, Anne Seelig and Shin Hahn of Lee Litigation Group PLLC.

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The case is Ortiz et al. v. Chop't Creative Salad Company LLC et al., case number 1:13-cv-02541, in the U.S. District Court for the Southern District of New York.