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Legal Sea Foods sued over tip policy

Roger Berkowitz, President and CEO of Legal Sea Foods, rebutted the allegations the restaurant chain violated state wage laws by forcing servers and bartenders to share tips with workers who rolled silverware in napkins.
Roger Berkowitz, President and CEO of Legal Sea Foods, rebutted the allegations the restaurant chain violated state wage laws by forcing servers and bartenders to share tips with workers who rolled silverware in napkins. (Kayana Szymczak for the Globe/File)

Legal Sea Foods is facing two class-action lawsuits alleging the restaurant chain violated state wage laws by forcing servers and bartenders to share tips with workers who rolled silverware in napkins.

Under state law, employees who make tips can be paid a lower minimum wage — $2.63 an hour — but only those who serve food or beverages directly to patrons, or clear their tables, are entitled to gratuities. By requiring the wait staff to share tips with workers whose only duties were rolling silverware, the lawsuits contends, Legal violated the tips law and therefore owes servers and bartenders the regular minimum wage of $8 an hour.

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“One of the problems with a practice like this is that the employer is having one group of employees pay another to do their job,” said Hillary Schwab, the lawyer representing the wait staff. “Silverware rolling has nothing to do with customer service, it’s just something that has to be done in the restaurant, and Legal was having the waiters pay the silverware rollers.”

Legal Sea Foods chief executive Roger Berkowitz rebutted the allegations in a statement: “We have always operated with the principle that our employees are our greatest asset. These lawsuits are ludicrous and we will vigorously defend.”

The lawsuits were filed on behalf of more than 200 servers and bartenders at Legal Sea Foods’ restaurants in the Prudential Center and Burlington Mall. Both suits were initially filed this year, but new complaints were issued last week to take advantage of the recently expanded minimum wage law that now allows lawsuits to recover three years of back wages instead of two.

Schwab would not speculate on the amount of money the workers could be awarded if the suits are successful.

Rick Heller, general counsel for Legal Sea Foods, said the suits are taking advantage of a poorly worded tips law to create a separate job, silverware roller, which is typically done by servers or workers who bus tables during their regular shifts.

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At the Prudential Center, he said, servers decided — with the general manager’s blessing — to give bus personnel an extra $2 per shift per server out of the tip pool to have them take care of the silverware instead. The bus personnel, who normally get 10 percent of the tip pool, rolled silverware between clearing tables, not as a separate job, as the suit claims, and therefore were entitled to tips, Heller said.

In Burlington, the servers worked out a side deal to pay bus workers out of their own pockets to roll silverware, not the tip pool, and the general manager was not aware it was going on, Heller said.

Before the lawsuits, the practice did not generate any complaints, he said, but it is no longer taking place in either location. Both restaurants have since hired silverware rollers who don’t get tips.

Schwab estimates the cases could involve more than 100 workers at the Prudential Center, and more than 100 in Burlington. The suits seek to recover from Legal Sea Foods the amount silverware rollers were given in tips for three years before the court filing, plus the additional hourly wage the wait staff should have received to bring them up to $8 an hour.

The suits also seek interest on the back wages, attorneys’ fees, and a mandatory tripling of damages required under the tips statute.

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The plaintiffs in both cases declined to be interviewed.


Katie Johnston can be reached at katie.johnston@globe.com. Follow her on Twitter @ktkjohnston.