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December 22, 2009

Jason Zink and the tip pooling lawsuit

Let's start with an introduction: Jason Zink is the owner of No Idea Tavern and the operator of Don't Know Tavern.

For more than two years, Zink was also a bartender at Don't Know Tavern. All of the tips Zink and the other bartenders made went into a collective tip pool, which he said was divided evenly at the end of the night. Since Zink didn't pay himself a salary, he lived off the money he made as a bartender. He and the other bartenders made less than minimum wage, but the tips more than made up for it.

However, it's a violation of the Fair Labor Standards Act for an owner or manager to collect a share of the tip pool when their employees are making less than minimum wage.

Zink found this out the hard way, when earlier this year, several of his former employees filed a lawsuit against him, seeking $250,000 in punitive damages. ...

"When you see '$250,000 in punitive damages,' it scares you," Zink said. "It literally made me sick to my stomach. It wasn't even anger. It was just scary, because it's my livelihood. ... I take it very personally."

In the 15 years Zink has bartended, he had never heard of anything like this. He can rattle off several bars in South Baltimore alone where an owner or manager bartends and shares the tip pool.

"Pooling tips is common practice," he said. "Unfortunately, now I know that everything that's common practice might not necessarily be legal."

The lawsuit was originally filed by Tara Gionfriddo, a former employee of Don't Know, as well as five other employees. Since then, three of the plantiffs have dropped off the suit, which leaves Gionfriddo and two others.

"I would bet this is a very common practice, because the truth of it is, as long as it's not policed, it will go on," said Philip Zipin, Gionfriddo's lawyer.

"If you're management and you have a chance to take $100 out of the till every night and no one's calling you on it, why wouldn't you keep doing it? The problem is, Mr. Zink was working these shifts and he felt -- rightly or wrongly -- that he was entitled to his share of the tips. He may have thought that way, but that is simply not what the law provides."

Zink toyed with the idea of going to court, but figures it will cost him as much -- if not more -- money than settling out of court. Since the lawsuit, he has gone back to being the sole bartender at No Idea. He thinks he'll probably end up settling in the coming weeks.

"It's a lose-lose situation for me," he said. "I just want to find out a way to make sure the other bar owners don't have this happen to them."


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Posted by Sam Sessa at 1:57 PM | | Comments (40)
Categories: Bars & Clubs
        

Comments

In my opinion, being a business owner ALSO means being educated about laws that could negatively impact your business. Not knowing about this labor law seems pretty irresponsible to me. Just because other bars in the area do it doesn't mean it is legal.

There also is bound be an unstated reason why the former employees filed. I assume a dispute over a firing or something to that effect.

When in doubt, go to an attorney before hand just to see if you're doing anything wrong. A few thousand dollars to have a legal audit of your business would have prevented all of this trouble.

Yeah, but this is not obviously illegal. Why would you even check to see if it is when it seems a perfectly normal business practice?

I understand the intent of the law but I don't believe that this is the purpose.
I believe that the intent would be to keep managers and owners from taking tips for "managing" which I agree should be illegal. But if the owner or manager is working as a "bartender" or "server" then they should be allowed to pool tips. If I understand this correctly, if the owner would keep their own tips and not pooledthen there would not have been an issue.
Hopefully this doesn't become Mr. Zipin's personal quest to catch every bar in Baltiomore doing this. Then again he is a lawyer.

Obviousy I'm not going to drop any names since weasel-y ears might be listening but I think this is very common practice. What constitutes management? That seems a little squishy. If one bartender does the scheduling is that a manager?

Tara Gionfriddo and the other bartenders should be ashamed of themselves. If Jason worked for tips, then he should keep his share. If she needs more money, she should be a better bartender as opposed to clogging the legal system with petty issues like this. And, $250K… are you kidding? Did they lose out on that much in tips? I think not. What a joke all-around. Welfare and disability scams are next.

Just recently Starbucks found themselves in a similar case in the state of California. Originally they were found guilty and ordered to pay $100 million:

http://www.bloomberg.com/apps/news?pid=20601103&sid=anpEgLE7dRco&refer=us

But they appealed and the judgment was tossed out on appeal earlier this year:

http://blog.thelawplanet.com/2009/06/starbucks_wins_on_appeal_100_m.html

It could still go to a higher court. I don't know the similarities between California law and Maryland law, but the Starbucks case dates back to 2004. I feel bad for anyone who is sued when they thought they were doing the right thing, but I also feel that an owner is responsible to check on this stuff.

Agree with John that there has to be more to this story.

But hey ... the law is the law. Sounds like Zink realizes he was breaking it, so he's settling out of court.

I am an attorney, who just happens to be an ex-bartender. I am wondering if Mr. Zipin will enlighten us to the exact provision in the FLSA which precludes this behavior.

It's a shame it has come to this. Jason is a reputable business owner and his establishments are a welcome addition to the South Baltimore community, in my opinion.

I have some experience with the FLSA and I agree with the poster who said he didn't believe this goes to the intent of the act. The real problem is that our laws are dictated by the actions of the few. There are owners out there who benefit by taking advantage of the laws that allow paying less than minumum wage to servers, while also taking a portion of tips "for the house." However, that is not what was happening here.

Under the FLSA, owners and managers cannot have anything to do with tip pooling - cannot make bartenders participate and cannot partake themselves. If Jason had set up a separate tip jar for himself, he would have theoretically been fine, although who really does that?

The Starbucks case was interesting in that the decision turned on how much control the supervisors had over the other employees in the tip pool. If they didn't have the power to fire them, it was a grey area, but the appellate court thought it was enough to overturn. FLSA is federal, so technically, the same decision would apply in MD, however, in this case, Jason is the owner of the bar, which doesn't leave much grey area.

Unfortunately, many of these cases start with a petty argument or pay dispute between an owner/manager and an employee. Often, when the employee seeks out an attorney for basic advice on small claims court, etc. more serious issues are discovered and sometimes exploited.

It is interesting that several employees here distanced themselves from the lawsuit even though it looks like they could have gotten something out of it. Maybe their conscience got the better of them.

I am sorry to hear Jason may have to settle this one as it may prompt more like it. It also raises the importance of proactive legal assistance when starting a business and the need for affordable legal counsel for small business owners.

Jason, keep your head up, hopefully the right side of this will prevail.

I agree with James comments (except for the "he is a lawyer" part). Zink is a responsible licensee and I support him.

250k? Really? Seems like someone has more then fairness and legal president in mind.
If they had such a huge issue with this, the way civilized adults settle it is to discuss it before running off to a lawyer and suing for an amount that will obviously severely hurt a small business.

I think Jason ran the numbers and figured it was more feasible to settle out of court. That's not an admission of guilt, that's being able to do the math. Also, being that it is "common practice" he just had the bad luck of having several people P'Oed at him.

Chin up, Mr Zink.
Remember that ill gotten gains have a price tag all there own.. it's called karma, and i'm sure those people will soon learn this to be true.
Also, i will be making it a point to more regularly patronize your bars.

(precedent, not president)

Meekrat, karma is not for this life, so you might want to reserve such glib invocation.

I'm afraid that this post will serve as an advertisement for hateful money-grubbers and bottom-feeding lawyers.

Kant said that the law should be a moral minimum. It's sad that some people use to be minimally moral.

Anybody who's spent time on a barstool across from J knows what a toll this has taken on him and his business. Sad situation all around. Best to settle, put it behind and move forward.

Put their vendetta to rest dude - it's not worth your energy! (or your additional money)

Sounds like a struggling bartender looking for an easy way to make some extra cash. 250k?? are you kidding me? Is he being charged criminally for the FLSA violation? That would seem to make more sense, pay a small fine and be done with it. But this suit seems frivolous. Glad to know my tax dollars are going to fund this clown lawyer getting his day in court.

Glad to know my tax dollars are going to fund this clown lawyer getting his day in court.

Tax dollars? No.

Tax dollars? No.


Really? Then can you explain to me who pays all of the administrative and processing costs for everything involved at the court to get this suit on file? Not to mention the salary of the judge who may or may not have to hear the case? That's what I thought.

My point was it's just another frivolous lawsuit clogging the legal system (that yes, my and your tax dollars support) that would be better off settled privately.

If you settle it just encourages more suits like it. Fight it and beat those ____'s!!!

Sam should have never posted this, in my opinion. Yes, it's good to get the word out to others so they can be careful in the FUTURE...but it also could have planted seeds. It may be too late now for some small business owners who are already struggling to make ends meet without having to deal with stuff like this.

It will be interesting to see if the judge regards this as frivolous, and throws it out, them maybe fining the lawyer for wasting the courts time.
It has happenned in the past.

Tax dollars? No.

Yeah, there's probably some public burden but I think in civil cases one of the parties pays court costs. You're right there are probably plenty of hidden costs.

I don't know about the rest of you guys, but I am thinking "class action."

Those interested parties out there, please reach me at "I Can't Believe It's A Law Firm" Law Firm in the Springfield Shopping Mall. Call KLondike 5-LAWW. Ask for Lionel Hutz AKA Miguel Sánchez, AKA Dr. Nguyen Van Falk.

@JTK

Works on contingency? No! Money down.

JTK, I thought you worked at Dewey, Cheetum, and Howe.

Free smoking monkey with every consultation!

Why is everyone getting so worked up about this? Zink admits to breaking the law. If you're a business owner, something called the "Fair Labor Standards Act" sounds like it might be kind of important. I'm sure Zink is a nice guy and everything, but it's his responsibility to know the law. I would like to see it work out in his favor since it doesn't look like he broke the spirit of the law, but that doesn't seem likely. People here seem to forget that lawsuits are typically based on the law rather than their opinion on the legitimacy of the lawsuit. And their issues should be with the people who created the laws rather than the person suing under it.

And of course the plaintiff is going to sue for a lot of money. "Punitive damages", you know, so people get the picture that this is illegal. I doubt they would get the full $250,000 if it went to trial, but that a strong starting negotiation point for the plaintiffs. Plus, the bloodsucker litigating the case has to make sure it's worthwhile for them.

As a small business owner myself, you can not know every law to the letter, and it seems in this case that he may or may not have broken it so as someone wrote it wasn't that obvious. If he was working as a bartender at the time, owner or not, he deserved his fair share.

And tax records would show that. If the feds and the state already got their portion, then Tara G has no right to it. And last I checked, Don't Know's bartenders wear clothes so there's no way $250k is a responsible amount. Of course you ask for the moon and hope you get sky, but that's still rediculous.

I'll go help pay my share this weekend. Hopefully it goes to Jason and not some numbnuts who has an entitlement problem. There's way too much of that going around. What do you think she got from the flat broke state of MD in unemployment on top of this?

Too many laws. I would replace the whole legal code with this:
"Don't be a d*ck".
That goes for the plaintiff too.

Civil lawsuits are ruining this country. I was on a jury for a lame civil lawsuit for glorified whiplash. The case was strung out by bloodsucking lawyers for three years. The rest of the jury was so glib, ah sure give them $500,000 who cares the insurance company will pay.

Ha ha, enter Owl Meat GiantPain. I vited for innocent. My "compromise" was to find them guilty and give them a $100 for the emergency room visit. If not for me, the jury would have raped the defendant. Never trust a dozen people who are too stupid to get out of jury duty.

It's really sad, Jason, but you can't trust the courts to do the right thing.

Zink!

@JTK, do you know if there's an Orange Julius on your floor of the mall?

And when will my shoes be ready?

Vic Damone-

Ouch! In 4 1/2 years this is the worst beating that I have ever taken. I definitely respect your opinion however, wow, it hurts more than any other before.

For those who have never met me, I work Wednesday thru Sunday night at No Idea Tavern and I hope to give you the most fun that you have ever had in South Baltimore.

To my knowledge, I am being sued for sexual harrassment, but it is from the same person who file the same lawsuit that I am dealing with now. I have no ill will towards the plaintiff however I must defend myself. The lady involved in my lawsuit about wages is the same person who is suing me for sexual harrassment.

I am a reputable business owner and I operate on the right side of the law. I have been charged with sexual harrassment by the same person who is filing this lawsuit, no other!

I was trying not to respond to everybody's question until I got this bashing from Mr. Damone.


The people in South Baltimore know who I am, please let them judge for themselves.

I didn't purposely break the law and I don't think that I did break the law. I worked very hard with my staff and i made them a lot of money. I would love to be able to keep my own tips.

As far as Tara goes, I have no ill will towards her at all, I wish her the best in life, I just want this lawsuit to be over.

I am by far a terrible entrepeneur, as I have brought a lot of business to South Baltimore. I may not be the nicest person that you have ever dealt with but I have a lot of stuff on my head. I am always thinking on how to improve the situation that I am in.

As far as me being an alcoholic, I have to deny that fact as well. I, as many other people do, enjoy the occasional cocktail, however, I have no DUI or DWI on my record like many chefs in the neighborhood do or don't if you know what I mean.

Please talk to people that I have worked with in the past before you judge me.

And of course if you don't know me, please call me up for a dinner and a discussion of you dare. Thank you for your feedback.

Sincerely yours,

Jason Zink
410-212-7521


Whether or not I am a reputable business owner dependends on the person, however there are a lot of people who have received a lot of money from me in donations.

And as far as my defendants go, they are more than welcome to my houses as they have no value in them. However, I have worked very hard for my businesses and I would be very disappointed if they ever ended up in the hands of the defendants.

Don't worry, Jason Z, I have a foolproof strategy to get you out of here. Surprise witnesses, each more surprising than the last. The judge won't know what hit him.

I thought this lawsuit was common knowledge in the SoBo community and the underlying reason of its filing... Some people get fired or quit out of spite, hire a lawyer and here it is today. If Jason isn't easy to work for, quit. Baltimore is a small community and I'm pretty certain the girl suing him will never work in a bar in Bmore again. Anybody know this girl?

Jason,

"The lady involved in my lawsuit about wages is the same person who is suing me for sexual harrassment."

It seems lady isn't the appropriate noun for Tara Gionfriddo at this moment, maybe it never was or will be.

If this strictly a personal problem on her part, she deserves to be countersued for slander. The sexual harassment charge, independent of the case decision, can be persistent and enduring problem, people often take at face value without checking out the back story, and even knowing the back story far too often think if there's smoke, there‘s a fire.

These days when some is acquitted, it is usually treated as the person beat the charge, not that he has been vindicated or found of no wrong doing.


I’ve seem the pandemic hell that created in the life of an acquaintance who was falsely accused and acquitted of sexual abusing his ex-girlfriends children*, particularly when he got stop by a cop for a traffic violation, and when he applied for a job because it never was successfully deleted from all data bases it was recorded in and often popped up.

*It was spite. She was pissed off when he moved out, and had to completely foot all her and her children’s bills and those owning a house on her own again. He wasn’t the children’s father. The children loved him and keep sending cards and letters where ever he was, including jail.


As a fellow Federal Hill business owner I have known and interacted with Zink for years. He has taken two crappy bars that were filled with drunks and drugs and turned them into great establishments that bring dollars to the neighborhood.

He is also one of the rare owners that actually loves to continue in a service capacity. Think Player/Coach a la' Johnny Bench. He also runs a tight ship in terms of theft and other activities.

Jason is one of the best 'old school' bartenders in South Baltimore. What these dummies don't realize is that by pooling tips with Jason they actually made more money since he typically rings more and takes better care of the customers.

Making your employees 'tip out' the manager is wrong from every sense of the word. It's also wrong if a manager occasionally floats to help out behind the bar to expect tips. But if he works his station from open to close he deserves some type of compensation.

I would encourage everyone to take a stand with your wallets in regards to this. If you don't like Jason or think he is fair, then do not visit his establishments. If you believe that this lawsuit is frivolous and out to hurt a small business owner, then refuse to be served by any of the bartenders involved. Some of which still work in our 'Hood.

An aside ...

I think the smartest thing that bar and restaurant owners and management can do is take part in this blog and be real. It seems to help people connect with them as humans and their businesses. I've seen it do amazing things here and at the restaurant blog.

It makes for better good will and business than pretending to be a customer and lavishly praising yourself. I'm surprised more owners don't do it. In this faceless corporate word we live in, more faces are needed.

I just wanted to say that I know every bartender that was and is involved in the lawsuit against Jason.

Jason was informed by his employees months prior to this lawsuit getting filed that the tip pooling was illegal and he changed nothing! And as for the $250K comments. Anyone who knows anything about lawsuits and punitive damages know that a complaint will max out damages. It's not as though Tara expects to get compensated in that amount.

Although I personally dislike Jason, I say this from an impartial standpoint so that people have a better perception of the situation. This was NOT the case of him being ignorant of the laws he must abide by, but rather the case of him disregarding it for his own gain. Does anyone really believe that bartending was Jason's only avenue of compensation at Dont Know?

LivinginSoBo-

Bartending is my only avenue of compensation. I will fully disclose my personal financials to anyone that wants to see them. They aren't going to see much. I had more money when I only bartended and less stress.

Do you really think that I want to bartend if I didn't have to?

I was previously told that there are alot of grey areas in this matter and that is why I have now decided to fight it in court so that this doesn't happen to anybody else.

Think about the bars all around in the area that people go to, does the GM or owner bartend there? And that is why I have to unfortuantely defend this in court.

im late to this thread as i dont jump on the computer that often but just wanted to wey in as a former employee and current friend of jason.
he never treated me with anything other than the utmost respect, especially reguarding my frequent tardiness. jason may not get along with everyone but who does?
i no longer work for jason as i am a current business owner in the area who relies on tips as income and would like to point out i bartend every shift because my LLC cannot afford to pay "me the bartender" a legal minimum wage and thus need to rely on the fair labor practices act stipulations so i can not only comply with National minimum wage regulations but alo keep my doors open
an excerpt from the acta that i think everyone is interpereting is this "The law forbids any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. A tip is the sole property of the tipped employee. Where an employer does not strictly observe the tip credit provisions of the Act, no tip credit may be
claimed and the employees are entitled to receive the full cash minimum wage, in addition to retaining tips they may\should have received." however as i interpret this when clocked in as a bartender i am no longer the owner but an employee of the llc.

unfortunately im not a loyer im just a server as many patrons point out to me on a weekly basis so what should i know.

http://citythatbreeds.com/2011/03/the-trials-and-tribulations-of-jason-zink/

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About Erik Maza
Erik Maza is a features reporter at the Baltimore Sun. He writes for several sections of the Sun paper and contributes weekly columns on music and nightlife. He also writes and edits the Midnight Sun blog. He often covers entertainment, business, and the business of entertainment. Occasionally, he writes about Four Loko, The Block, the liquor board, and those who practice "simulated sex with a potted palm tree." Before The Sun, he was a reporter at the Miami New Times. He's also written for Miami magazine, the Orlando Sentinel, the Sarasota Herald Tribune and the Gainesville Sun. Got tips? Gripes? Pitches? He's reachable at erik.maza@baltsun.com. Click here to keep up with the dumb music he's listening to.

Midnight Sun covers Baltimore music, live entertainment, and nightlife news. On the blog, you'll find, among other things, concert announcements, breaking news, bars closings and openings, up-to-date coverage of crime in nightlife, new music, round-the-clock coverage of Virgin Mobile FreeFest, handy guides on bars staying open past 2 a.m. on New Year's Eve and those that carry Natty Boh on draft. Recurring features include seven-day nightlife guides, Concert News, guest reviews of bars and concerts, Wednesday Corkboard, and photo galleries, as well as reader-submitted photos. Thanks for reading.
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