A federal judge has dismissed a class-action lawsuit that accused an upscale Aspen restaurant of running an illegal tipping pool.
Denver U.S. District Judge Lewis T. Babcock signed an order Friday that requires both the defendant, Cache Cache restaurant, and the plaintiff, Sandro Torres, who represented the class, to pay their own fees and costs. The suit was dismissed with prejudice, meaning that Torres can’t refile the complaint. A trial had been scheduled for this month.
“We are very pleased with the outcome on behalf of Cache Cache,” said Aspen attorney Peter Thomas, who represented the restaurant in the case.
Thomas said the settlement is confidential and that he could not go into details about the agreement. However, Thomas said that Cache Cache admitted no wrongdoing as part of the settlement.
Fort Collins lawyer Brian Gonzalez, who represented Torres, did not return a telephone message seeking comment.
Of the some 80 notices that were sent to past and current employees asking them to join the class, two of the respondents joined it.
That came after Torres, who once bused tables at the downtown restaurant, filed suit in January 2012 in Denver federal court accusing Cache Cache of violating the Colorado Wage Claim Act and the federal Fair Labor Standards Act by running an illegal tip pool.
Torres’ complaint said he made less than minimum wage — $4 to $4.25. Paying less than minimum wage to regularly tipped employees is a standard practice in the restaurant industry. But for restaurants to take a tip credit against the minimum wage, they must adhere to state labor laws, which allow for tip pools.
By Colorado law, Torres’ suit alleged, the only employees who could collect from a tip pool were “front of the house” workers such as servers and hostesses. But at Cache Cache, such employees as chefs, dishwashers and food preparers — who were not regularly tipped — also participated in the tip pool, the suit says.
In court filings, Cache Cache claimed it didn’t have a mandatory tipping pool but instead ran a “proper and legal” gratuity program by having its servers pool their tips at the end of the shift and share them with other restaurant workers who helped provide customer service during the shift.
Torres worked at Cache Cache from 2004 through 2008 and from January 2011 to April 2011.
Thomas, in court filings, argued that Torres, of Mexico, worked here illegally as an undocumented worker during his first stint at Cache Cache. He obtained the employment by using a fake ID, yet Gonzales suggested in court flings that employers like Cache Cache would exploit illegal immigrants by paying them less.