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José Andrés blames software glitch for underpaid workers; plaintiffs move ahead with lawsuit

Mercado Little Spain opened in April in the expansive Hudson Yards development in New York City. (Spencer Platt/Getty Images)
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This story was updated on Aug. 29.

ThinkFoodGroup, the Washington-based parent company that oversees Mercado Little Spain in New York City, said Wednesday that it had discovered a payroll glitch that underpaid some employees at the gigantic Hudson Yards food hall and market. The affected workers will receive back wages, plus another check of equal size to “offset any difficulties,” ThinkFoodGroup founder José Andrés said in a statement.

The announcement came two days after a bartender at Mercado Little Spain had sued Andrés and Hudson Hall LLC, the company behind the sprawling Hudson Yards project, claiming that the superstar chef and restaurateur’s debut in New York has violated state and federal wage laws.

“Well, look at that,” said lawyer D. Maimon Kirschenbaum, upon learning about Andrés’s pledge from a reporter. “An American hero.” (Last year, the chef and restaurateur was nominated for a Nobel Peace Prize for his humanitarian work feeding victims of natural disasters.)

Kirschenbaum apologized for his flippant remark, but said that as attorney for Tina Braunstein, the bartender who filed the initial class-action complaint on Monday, he will continue with his case against Andrés and Hudson Hall.

“There is no way they would try to settle it without my intervention unless they were trying to save money,” Kirschenbaum said. He said that Andrés and ThinkFoodGroup are trying to avoid the potentially heavy fines that can accompany such wage-violation cases. Kirschenbaum said a company must pay $250 a day, per employee, for each day there is inaccurate information recorded on a worker’s pay stub. There is a $5,000 cap per employee.

Andrés, the lawyer said, is “hoping for some sort of mulligan on whatever penalties he might owe.”

ThinkFoodGroup declined to respond to Kirschenbaum’s allegations about avoiding fines. The company did issue this statement from Eduardo Sanabia, chief people officer for ThinkFoodGroup:

Following an allegation that Mercado Little Spain may have underpaid certain employees with respect to certain rates of pay, we immediately conducted an accounting and pay audit and discovered a glitch in our payroll software that caused both underpayment of some employees and overpayment of others. While the total amounts underpaid are very small and do not affect every employee, we take an error like this very seriously and intend to rectify it immediately. We’re working with the software company to fix the error, and employees who were underpaid will receive back payment and wages owed this week. In fact, Chef José has directed that any employee who had the wrong rate used to their detriment will receive a second payment in an equal amount in an effort to offset any difficulties. Moreover, employees who were in fact overpaid will be able to keep the extra wages.

Braunstein was hired in April to work as a bartender at various sites at the sprawling Mercado Little Spain, which had opened in March at Hudson Yards. In her complaint, Braunstein alleges that she was paid the tipped minimum wage for work that, according to New York law, requires employers to pay the full minimum wage.

She also alleges that Mercado Little Spain did not pay her the proper overtime wage of $17.50 per hour and did not pay her the correct $15 premium, as required by New York state law, when she worked more than 10 hours in a day. Furthermore, Braunstein alleges that pooled tips were improperly shared with non-service workers, such as barbacks, in violation of the Fair Labor Standards Act.

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In response to the initial lawsuit, a spokeswoman for ThinkFoodGroup sent The Washington Post a statement that denied all charges.

“We work very hard to provide our employees with a safe and supportive environment and take claims like this very seriously. We firmly believe that we have properly paid all of our employees and will vigorously defend any claims to the contrary. We are very proud of our employees and entire team in New York.”

But on Wednesday, ThinkFoodGroup’s Sanabia provided more background. He said Braunstein never went to the human resources department before filing her complaint.

“I wish she had come to us to raise the issue directly so we could have identified and corrected this right away,” Sanabia said in a statement.

On Thursday, Kirschenbaum said Braunstein did complain to her higher-ups, including bar managers, a general manager and even Charlotte Robertson, the director of restaurant operations at Mercado Little Spain.

At issue, according to Kirschenbaum and the complaint, are the hours during which Braunstein performed side work, such as bar setup, restocking wine, polishing silver and other tasks that don’t involve her interacting with the public. If an employee spends two hours or more per shift doing side work, Kirschenbaum said, the employer must pay the worker the full minimum wage for the entire shift, per New York law.

The minimum wage in New York City was raised to $15 per hour this year for companies with 11 or more employees. The tipped minimum wage for food service workers is $10 in New York City.

“It is so unusual for a company like this to make this type of error,” Kirschenbaum told The Post on Tuesday. “It’s a plain straight minimum-wage violation on a massive scale.”

The plaintiffs in the case increased by one on Thursday, when former Mercado Little Spain bartender and barback Cindy Martinez was added to an amended complaint. Martinez, the lawsuit alleges, “felt so strongly that defendants were not interested in paying her properly that she resigned her position only days after the formal opening.” The number of plaintiffs could rise further. The complaint mentions a potential class of 40 members, but Kirschenbaum said Braunstein claims there could be hundreds of employees who may also be underpaid.

In the amended complaint, Kirschenbaum argues the alleged wage and labor violations cannot be chalked up to software malfunctions. For example, the complaint said, Martinez worked three shifts from 2 p.m. to 12:30 a.m. as a bartender/barback at a Mercado Little Spain space that allegedly did not open until 5 p.m. and closed at “roughly” 11 p.m., requiring her to work at least four hours without the opportunity for tips.

The “blatant minimum wage violation has no relation to any alleged software glitch,” the complaint noted. “Rather, defendants saved money by having tipped employees perform non-tipped setup and breakdown work while illegally paying them as though they were receiving tips for that work.”

What’s more, the amended complaint singles out Andrés’s opposition to Initiative 77, the ballot measure that would have eliminated the tipped minimum wage in the District. Voters approved the ballot initiative last year, but the D.C. Council later repealed the measure amid pressure from the restaurant industry. Given his past statements on higher minimum wages for tipped employees, the complaint said, “it is quite brazen and unbelievable that he now chalks all underpayments up to a glitch and believes that he should get a free pass by repaying only a small portion of his true liability.”

Mercado Little Spain has been generally well-received since its debut. Both Eater New York and the New York Times have given it positive reviews. “I was well into my fifth meal in the complex before I came across a dish I didn’t really like; as a general rule, everything is good, which is not something restaurant critics are in the habit of saying,” wrote Times critic Pete Wells in a July review.

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Kirschenbaum said his niche is representing restaurant workers who accuse employers of wage theft and other labor violations. In 2017, he represented two plaintiffs who accused Sushi Nakazawa, owner Alessandro Borgognone and chef Daisuke Nakazawa of misappropriating tips and not paying workers the minimum wage. (The case has since been settled, Kirschenbaum said.)

The attorney also represented Braunstein as a plaintiff in a case against activist chef Dan Barber and his Blue Hill at Stone Barns, the farm-to-table destination where the farm resides next to the restaurant. Braunstein sued in 2006 for discrimination, harassment and retaliation, a case in which the bartender claimed she was called names and belittled by management after receiving praise in media coverage of Blue Hill, including a 2004 review by Frank Bruni in the New York Times.

According to court documents, the Blue Hill complaint was voluntarily dismissed in early 2010. There was a settlement in the case, reached just ahead of a jury’s decision, but the terms were not made public.

Braunstein has been a plaintiff in other cases against restaurants, too, including one against the now-closed Telepan restaurant on the Upper West Side (the case was dismissed) and a still-open discrimination and retaliation complaint against the Plaza Hotel in New York City.

In the Mercado Little Spain action, Braunstein, and other potential plaintiffs who join the class action, are seeking unpaid wages, liquidated damages, attorneys’ fees, and “other legal and equitable relief as this court deems just and proper.”

Kirschenbaum said it was standard practice to name an individual — in this case Andrés — in this type of lawsuit.

“You never know what’s going on with a company’s finances,” Kirschenbaum said. “Having an individual on the hook is always a good way to make sure a company will make good on their debts.”

Magda Jean-Louis provided research assistance on the updated story.

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