Judge Paul Gardephe
Kurniawati charged defendant restaurant and its owner with failure to pay overtime and spread-of-hour wages, and misappropriating tips contrary to the Fair Labor Standards Act. The court dismissed defendants’ counterclaims asserting: (1) Kurniawati did not perform her duties and harassed and discriminated against other restaurant employees based on their Asian heritage; and, (2) that she filed inaccurate time sheets and manipulated tip calculations. To the extent defendants asserted a discrimination claim on behalf of other restaurant employees, that claim must be dismissed for lack of standing. Under state law an employer’s sole recourse for a worker’s poor performance is termination. The employer cannot sue workers for lost profits caused by alleged poor performance. In dismissing defendants’ counterclaim sounding in fraud, the court noted their failure to allege the number of hours Kurniawati reported or actually worked. Defendants lacked standing to assert Kurniawati’s manipulation of tip calculations. State law bars employers from retaining for themselves any portion of employees’ tips. Because defendants had no right to the tips, they lacked standing to claim Kurniawati "received more in tips than she was entitled to."
