Former owners of Kellys Brew Pub to pay servers $1,375,000 to settle wage theft lawsuit

ALBUQUERQUE—After a public hearing today, a court approved a class action settlement agreement that requires the former owners of Kellys Brew Pub and Restaurant to pay servers over a million dollars. Second Judicial District Court Judge Benjamin Chavez approved the settlement. 

The judge ruled in July 2019 that the former owners of Kellys violated Albuquerque’s minimum wage ordinance.

The former owners will pay one million of the agreed upon amount within 30 days. All parties agreed to additional time for the former owners to pay the remaining $375,000 and for the plaintiffs to investigate the former owners’ assets.

“This is money that should have been in our hands in the first place. It was ours. We earned it,” said Bianca Garcia, a plaintiff in the lawsuit. “If that money had never been taken from us, it could have made differences in where some of us are today. Those funds may have helped someone pay off a student loan. Buy a car. Move to a better situation. Support a family. But it was deliberately kept from us. We will continue to fight for what is rightfully ours.”

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. 

In his July 2019 ruling, Judge Chavez 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. 

Sixteen 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, Dennis and Janice Bonfantine “settled on an unlawful response to the wage increase: servers would pay for it themselves, out of their tips.” 

“Workers have the right to a fair and legal wage. This includes people who work for tips” said Stephanie Welch, director of workers’ rights at the Center. “Albuquerque has a strong law that holds employers accountable, whether or not there is a pandemic. Employers should know that if they don’t pay their employees a legal wage, they can be sued and end up paying much more in damages than if they had just paid their employees fairly.”

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.

“We encourage every employee who is a victim of wage theft to come forward,” said Shane Youtz, an attorney at Youtz & Valdez, P.C. “You deserve to collect every dollar you worked for and are owed.“

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

The settlement agreement approved today can be found here: http://nmpovertylaw.org/atyani-v-bonfantine-settlement-agreement-final-and-approved-2020-09-29/

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

ACTION ALERT: Senate Public Affairs Committee Hearing on HB 31 to raise NM’s minimum wage

New Mexico’s minimum wage has remained stagnant for years. There hasn’t been a raise in the state’s minimum wage in over a decade. It’s time all workers in our state get a raise!

Show your support for HB 31 this Saturday!

WHAT: Senate Public Affairs Committee hearing of HB 31

WHEN: Saturday, February 23rd at 2 p.m.  (Make sure to arrive early to get a seat!)

WHERE: Santa Fe Roundhouse Room 321 (490 Old Santa Fe Trail, Santa Fe, NM 87501)

HB 31 would increase the state minimum wage to $12 per hour phased in over the next three years for New Mexico’s workers and would increase wages for tipped workers as well!

Find the Facts on Tipped Wages in HB 31 Right Here: http://nmpovertylaw.org/wp-content/uploads/2019/02/Factsheet-HB-31-Tipped-Wages-2019-02-08.pdf

Action Alert: House floor vote on HB 31 raising New Mexico’s minimum wage

New Mexicans keep working harder and harder but haven’t seen a raise in the state minimum wage in over 10 years.

It’s time our state increase the minimum wage for all workers, including tipped workers.

Show your support for HB 31! Don’t let tipped workers and their families behind, they deserve a raise too. Join us!

WHAT: House floor vote on HB 31

WHEN: Wednesday, February 13, 4:30 p.m. (subject to change)

WHERE: House of Representatives gallery at the Roundhouse (490 Old Santa Fe Trail, Santa Fe, NM 87501)

HB 31 would increase the state minimum wage to $12 per hour phased in over the next three years for New Mexico’s workers, including tipped workers, who would earn a higher base wage plus tips.

If you can’t make it out make sure to:

Get on social media and share your support for HB 31

FIND THE FACTS ON TIPPED WAGES IN HB 31 RIGHT HERE