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A New York Supreme Court judge has thrown out a $10 million lawsuit brought by the Rainbow Room’s banquet waiters, who claimed they were being bilked out of tips. Supreme court Justice Ira Gammerman ruled that the waiters were independent contractors, not employees of the Cipriani family, who operate the Rainbow Room and another banquet hall, Cipriani 42nd Street. As such, the judge ruled, they were not entitled to a cut of the 22 percent “service charge” that the caterers bill for banquets. Seeking class action status, the waiters filed the suit, Bynog v. Cipriani Group Inc., 602586/01, under Labor Law � 196-d, which prohibits an employer from accepting part of a gratuity “purported to be a gratuity for an employee.” The waiters had been hired by a referral agency, M.J. Alexander & Co. Inc., which was also named in the suit. The judge dismissed the claims against the agency, as well as claims against Michael Alexander, the head of the agency, because M.J. Alexander did not negotiate or receive any of the service fees that the Ciprianis charge their clients. The waiters worked at banquets starting in 1997 for $20 an hour, alongside full-time employees of the Cipriani family, according to the ruling. When a banquet was too large for the regular staff, the caterers would call the referral agency and ask for additional help. Justice Gammerman said the contract between the additional waiters and Alexander’s agency clearly proved that they were independent contractors. The agency paid the waiters, and the judge said that testimony revealed that the waiters did not expect tips for their work because they were being paid higher hourly wages than restaurant waiters. The Ciprianis’ regular banquet waiters belong to a union, and by contract receive $4.82 an hour plus 14 percent of the total food and beverage charge for the banquet. The union contract also stipulates that additional waiters, if they are members of the union, will work for $25 an hour but receive no portion of tips, while non-union extras will receive $20 an hour and no tips. Gammerman pointed out that the waiters had no fixed work schedule, brought their own tools, such as wine bottle openers, and were free to work for other competitors. He said the Ciprianis did not screen or select the waiters, but relied on Alexander’s agency to refer qualified people. The judge said the referral agency’s handbook instructed the waiters not to talk to the Ciprianis and to bring any problems to the attention of the agency. He also said that both the Worker’s Compensation Board and the Unemployment Insurance Board had found the agency to be the waiters’ employer. WAITERS’ ORDERS Gammerman rejected any suggestion that orders given to the waiters by the Ciprianis changed the relationship. The orders — such as when to arrive, what to wear (a tuxedo), and where to eat (out of sight of the guests) — were “not unlike instructions given to an independent contractor in order to get the job done,” the judge said, quoting Matter of Baker, 209 AD2d 751 (Third Dept. 1994). Robert K. Erlanger, who represented the waiters, could not be reached for comment. Marshall E. Bernstein, Christy L. Reuter and John D. D’Ercole, of New York’s Robinson Brog Leinwand Greene Genovese & Gluck, represented the Cipriani family. Reuter said the ruling was “a victory for the entire catering industry.”

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