Workers win wage theft fight against former owners of Kellys Brew Pub

ALBUQUERQUE—The former owners of Kellys Brew Pub and Restaurant violated Albuquerque’s minimum wage ordinance, Judge Benjamin Chavez of the Second Judicial District Court ruled late Friday. The court also determined that because Kellys failed to follow the rules for paying the tipped minimum wage, the former owners owed their employees the full minimum wage for those hours worked. 

Under Albuquerque’s minimum wage ordinance, if employers fail to pay workers their full wage, they must pay triple the wages that were withheld as well as attorneys’ fees. The business and the business owners, executives, and officers can be liable. A trial to determine the exact amount of damages and attorneys’ fees the business and its owner owe the servers is currently set for October 2019.

“This victory puts all restaurants on notice that they must pay every worker, by law, for every hour they have worked,” said Bianca Garcia, a plaintiff in the case. “The law is on the side of fair pay. Dennis and Janice Bonfantine should be ashamed of themselves for going through such extremes—trying to overturn the minimum wage law altogether—just to avoid paying back the money they took from us.”

15 servers, represented by Youtz & Valdez, P.C. and the New Mexico Center on Law and Poverty, brought the class action lawsuit, Atyani v. Bonfantine, in April 2016 on behalf of about 150 former servers who worked at Kellys from 2013 to 2016. The lawsuit contends that after city voters overwhelmingly passed a ballot initiative in 2012 raising the Albuquerque minimum wage, the Bonfantines “settled on an unlawful response to the wage increase: servers would pay for it themselves, out of their tips.” 

Kellys required servers to pay their employers cash each shift, calculated at two percent of their total daily sales, plus three dollars per hour they worked on the clock. After making these required payments to their employer, servers sometimes owed more in cash than they had actually earned in cash tips during the shift. When this happened, servers were required to pay the difference from their wallets or their paychecks. 

To defend against these claims, the Bonfantines argued that the Albuquerque minimum wage was invalid because it was increased through a voter initiative that put a summary of the wage increase on the 2012 ballot rather than the entire ordinance. In May 2017, the Second District Court rejected this argument, ruling that any challenge to how the 2012 election was conducted must have been made right after the election.

“Albuquerque’s minimum wage law has teeth. Unscrupulous employers who don’t pay their workers the legal wage can be sued and end up paying much more in damages than if they had just paid their employees fairly,” said Stephanie Welch, supervising attorney with the New Mexico Center on Law and Poverty. “Workers have the right to a fair and legal wage. This includes people who work for tips.” 

“The Kellys servers showed incredible persistence in fighting the Bonfantines, who literally took their hard-earned money out of their pockets,” said Shane Youtz, an attorney at Youtz & Valdez, P.C. “We encourage every employee who is a victim of wage theft to come forward. You deserve to collect every dollar you worked for and are owed.“

Attorneys on the case are Stephanie Welch and Sovereign Hager of the Center and Shane Youtz and James Montalbano of Youtz & Valdez, P.C.

The order on Atyani v. Bonfantine can be found here: http://nmpovertylaw.org/case-law-summary-judgement-order-atyani-v-bonfantine-2019-07-12/

The transcript of the hearing in which the judge explains his ruling can be found here: http://nmpovertylaw.org/transcript-atyani-v-bonfantine-hearing-ruling-only-2019-05-29/

The Atyani v. Bonfantine complaint can be found here: http://nmpovertylaw.org/complaint-kellys-final-2016-04-28-filed

Judge Rejects Challenge to Albuquerque Minimum Wage Ordinance

District Court Rules against Kelly’s Brewpub in Wage Theft Case

ALBUQUERQUE— On May 30, 2017, Second Judicial District Court Judge Alan Malott rejected a legal challenge to Albuquerque’s Minimum Wage Ordinance, denying a motion to dismiss a minimum wage case, Atyani et al. v. Bonfantine et al., No. D-202-CV-2016-2775, filed by employees of Kelly’s Brewpub against the former owners of the restaurant, Dennis and Janice Bonfantine.

The Bonfantines’ former employees have alleged that Kelly’s illegally required workers to kick back three dollars per hour from their tips after the tipped minimum wage officially increased in Albuquerque from $2.13 per hour to approximately $5.16 per hour. To defend against these claims, the Bonfantines argued that the Albuquerque minimum wage was invalid because it was increased through a voter initiative that put a summary of the wage increase on the 2012 ballot rather than the entire ordinance. Judge Malott rejected this argument, ruling that any challenge to how the 2012 election was conducted should have been made right after the election.

“Thousands of hard-working families can breathe easier now, knowing that the minimum wage in Albuquerque isn’t going to be slashed,” said Bianca Garcia, a plaintiff in the case. “The Bonfantines should be ashamed of themselves, not only for their violations of the minimum wage ordinance, but also for trying to eliminate the Albuquerque minimum wage altogether just to avoid paying back the money they took from us. We thank the court for seeing through this bogus defense.”

Judge Malott also rejected the Bonfantines’ argument that the Albuquerque minimum wage ordinance was invalid because it “logrolled” multiple issues into one question presented to voters. Malott ruled that “logrolling” is not an issue in municipal ballot measures.

“For years, the former owners of Kelly’s took hard-earned money out of their employees’ pockets, violating Albuquerque’s minimum wage ordinance that was overwhelmingly passed by city voters in 2012,” said Elizabeth Wagoner an attorney on the case from the New Mexico Center on Law and Poverty (the Center). “We’re looking forward to moving forward in this case. The Bonfantines’ employees deserve to collect every dollar they worked for and are owed.”

A similar case, Association of Commerce and Industry et al. v. City of Albuquerque et al., No. D-202-CV-2017-02314, filed in April by a group of business organizations, also asks the courts to invalidate the Albuquerque Minimum Wage Ordinance. That case, which is currently pending before Second Judicial District Court Judge Shannon Bacon, raises many of the same arguments that Judge Malott rejected in the May 30 Atyani v. Bonfantine decision.

Atyani v. Bonfantine is set to go to trial in summer 2018. Attorneys on the case are Wagoner and Tim Davis of the Center, and Shane Youtz and James Montalbano of Youtz & Valdez, P.C.

A copy of Judge Malott’s order can be found here.