Emboldened workers sick of living on tips

“What we are saying is that there have been rampant abuses, and they need to stop,” she said.

Attorney Michael S. Weisberg, who represents the Saigon Grill, said every worker at the company was paid at least minimum wage, which in New York is now $4.60 per hour for tipped foodservice workers.

“They make a fortune!” Weisberg said of the delivery men, all of whom were fired after filing their lawsuit, and now picket the restaurant several times a week.   He accused the workers, many of whom are Chinese nationals in the U.S. illegally, of lying about how many hours they worked, and of unfairly turning on a boss who offered jobs without asking too many questions about a worker’s immigration status.

“Let them justify one salary that is short!” Weisberg said.

Managers at some of the grocery stores being sued over their treatment of baggers have said the workers weren’t employees at all, and were offering their services to customers on their own time.

Still, more scrutiny could be on the way.

This month, New York’s state labor commissioner, M. Patricia Smith, announced the creation of a new Bureau of Immigrant Workers’ Rights.

The office will help coordinate enforcement efforts, and make sure bilingual investigators are dispatched to inspect potentially unscrupulous employers, said its new chief, Deputy Labor Commissioner Terri Gerstein.

“This administration is strongly dedicated to protecting all workers, regardless of their immigration status, and we will be taking a strong approach to enforcement,” she said.

It’s not clear that the surge in litigation means there are more violations taking place.

The U.S. Labor Department said the number of wage and hours complaints it received last year actually fell for the second straight year, to 26,256 compared to 31,786 in 2004.

Some of the biggest states also reported a decline in wage violation investigations. California opened 38,873 such cases last year, compared to 50,127 in 2002. Texas looked into 15,301 labor violation claims last year, down from 20,138 in 2001.

So why the increase in lawsuits?

Labor attorneys said there has been a proliferation over the past six or seven years in the number of lawyers who specialize in wage and overtime disputes, meaning more cases can be handled without government intervention.

“A few years ago there were very few people were toiling in this field,” said David Borgen, a labor attorney in Oakland, Calif.

A second could be a growing realization, in some immigrant-rich cities, that workers can go to court over a pay dispute, regardless of whether they are here legally or not.

Courts across the country have, in fact, repeatedly barred employers from trying to kill suits by arguing that their immigrant employees weren’t eligible to work in the U.S. in the first place. In New York, attorney Justin M. Swartz’s firm, Outten & Golden LLP, was involved in a $3.2 million settlement with the Gristedes supermarket chain in 2003 over pay for West African delivery workers.

“I think workers, in general, are becoming more and more aware of their rights to be paid properly,” he said.

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