by Geoff Rushton

Five former delivery drivers have filed a federal lawsuit against Wings Over Happy Valley and its owner.

Jacob Wilson, Ty Carts, Lewis Grove, Colin Krieger and Branden Ronald filed the suit on Wednesday in U.S. Middle District Court against the takeout restaurant, located at 244 W. Hamilton Ave., and owner Steven C. Moreira. The suit seeks overtime and other relief under the Fair Labor Standards Act (FLSA), Pennsylvania Minimum Wage Act and Pennsylvania Wage Payment and Collection Law.

They have asked the court to designate the suit as a class action. In addition to the individual former drivers, it is also filed “on behalf of all other similarly situated individuals,” which the lawsuit says may exceed 50 drivers who worked for the restaurant in the past three years.

The plaintiffs are seeking the return of wages they allege were taken from them and placed in an unlawful and unapproved “tipping pool.” The FLSA and Minimum Wage Act require employers to pay employees at least $7.25 per hour, except for tipped employees. Employers can pay tipped employees an hourly rate less than minimum wage if “all tips received by such employee have been retained by the employee.”

The exception to that, according to the lawsuit, is an authorized tip pool, where employers can have employees share tips “among employees who customarily and regularly receive tips.”

The drivers say they were paid less than minimum wage, drove their own vehicles for deliveries and that customer tips constituted the majority of their compensation. But, they claim, Wings Over required all delivery drivers to put 8 percent of their tips in a pool that was shared with kitchen workers.

“Through this tip pool, Defendants use the compensation earned by Plaintiffs and all other similarly situated individuals to compensate other employees… Defendants’ kitchen workers are not ’employees who customarily and regularly receive tips,'” the lawsuit states.

The suit claims that Wings Over and Moreira used drivers’ tips to “avoid their responsibility to pay their kitchen workers an appropriate wage.” The drivers believe Wings Over had the ability to pay the kitchen workers the standard minimum wage.

The drivers are seeking back pay, liquidated damages, monetary penalties and legal fees.