Supreme Court Justice Ira Gammerman ruled that the waiters were not employees of the Cipriani family, which owns the Rainbow Room and a separate banquet hall, Cipriani 42nd Street, according to a report in the New York Law Journal.
In dispute was the revenue from the 22% service charge tacked onto banquet bills.
According to court documents, the waiters starting working at banquets for $20 per hour in 1997 and were assigned to work with full-time Cipriani employees. That came about when a banquet proved too large for the regular staff prompting the restaurant to call a referral agency for help.
Gammerman said the workers’ referral agency contract described them as independent contractors who got paid from the agency.
According to the union contract covering the regular employee banquet waiters, they received $4.82 per hour plus 14% of the banquet’s total food and beverage charge. The union contract also stipulated that the additional waiters would not get tips, according to the court.
To support his ruling that the agency waiters weren’t employees, Gammerman pointed out that:
- the waiters had no fixed work schedule,
- brought their own tools, such as wine bottle openers,
- were free to work for other competitors, and
- were selected by the agency
Gammerman rejected any suggestion that orders about when to arrive and what to wear given to the waiters by the Ciprianis changed the relationship.
The case is Bynog v. Cipriani Group Inc., 602586/01.