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Minimum wage lawsuit heads to trial

The Route 66 Malt Shop & Grill is the focus of a trial beginning this week about whether management retaliated against an employee because of that person’s stand on the city’s new minimum wage three years ago.

The Route 66 Malt Shop & Grill is the focus of a trial beginning this week about whether management retaliated against an employee because of that person’s stand on the city’s new minimum wage three years ago.

ALBUQUERQUE, N.M. — It’s been nearly three years since waiter Kevin O’Leary told his then-employer at Route 66 Malt Shop & Grill that customers had left the shop that day because of delays caused by faulty equipment used to turn in food orders.

O’Leary had appeared on television two months earlier advocating in favor of the proposed minimum wage ordinance on the ballot in the general election, and had allegedly been told by general manager Andrew Szeman (pronounced “seaman”) that malt shop employees would lose their jobs if the ordinance passed.

O’Leary alleged in a February 2013 lawsuit that the day the customers walked out, he was told to take a week off without pay, and that when he returned, his hours were cut from 35 a week to four. A week later, Szeman, the general manager, presented a document to employees they were required to sign saying they would accept less than the legally required wage, the lawsuit claims.

Today O’Leary and his private lawyers Sara Berger and Molly Schmidt-Nowara, along with Assistant City Attorney Blake Whitcomb, will press their case for damages stemming from violation of the ordinance and retaliation against O’Leary in a jury trial before 2nd Judicial District Judge Denise Barela-Shepherd.

Route 66’s lawyer, Charles Lakins, will try to show that the document presented to staff was prepared without the knowledge of the defendants and that the cutback in O’Leary’s hours was discipline for poor work performance.

Attorneys spent a contentious day Monday arguing over what evidence could and couldn’t be admitted during the trial.

The document presented to employees presumably permitting a subminimum wage will be allowed into evidence, for instance.

Lakins lost an argument to exclude Szeman’s guilty plea to disorderly conduct, a criminal misdemeanor, in connection with the dispute. Szeman allegedly took a bat and a machete to O’Leary’s home after local television broadcast reports that Route 66 was violating the minimum wage law. O’Leary told Szeman the next day that he was afraid to go to work.

According to the complaint, O’Leary was considered a “tipped employee” who was being paid $2.13 an hour, when he should have been paid $3.83 an hour – 45 percent of the minimum wage of $8.50 per hour for workers not receiving benefits.

The judge excluded media reports from the time as hearsay.

The lawsuit was originally filed by the City Attorney’s Office, though then-City Attorney David Tourek said he hoped private lawyers would come in.

Szeman said at the time the lawsuit was filed that he had offered to pay O’Leary the difference between the old pay rate and the minimum wage, which he estimated at a total of $140. He also called the lawsuit politically motivated.

Enforcement became an issue in the wage debate, as Democrats on the City Council called on the administration to enforce the law.

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