Hartnett v. Wade-Mark Eleven, Inc.
| Decision Date | 18 December 1989 |
| Docket Number | WADE-MARK |
| Citation | 156 A.D.2d 559,549 N.Y.S.2d 69 |
| Parties | , 116 Lab.Cas. P 56,355 In the Matter of Thomas F. HARTNETT, etc., Petitioner, v.ELEVEN, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Robert Abrams, Atty. Gen., New York City (Jane Lauer Barker and Michael R. Adams, of counsel), for petitioner.
Rossi, Kehoe, Murnane & Hughes, Utica, for respondent Wade-Mark Eleven, Inc.
Before MANGANO, J.P., and LAWRENCE, KOOPER and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Industrial Board of Appeals of the State of New York, dated April 7, 1988, which after a hearing, revoked an order of the petitioner, the Commissioner of Labor, dated March 28, 1986, which found that the respondent Wade-Mark Eleven, Inc., had violated Labor Law § 196-d.
ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
On March 28, 1986, the Commissioner issued an order to the respondent, Wade-Mark Eleven, Inc. (hereinafter Wade-Mark), directing it to pay a former employee $1,446.38 in wrongly appropriated tips, interest and a civil penalty. The basis of the order was the Commissioner's conclusion that Wade-Mark violated Labor Law § 196-d by operating a mandatory tip sharing policy. Specifically the Commissioner found that Wade-Mark required its waitresses to turn over to management 2% of their gross sales receipts for each shift, which would be put into a "tip-pool" and distributed to other employees. Wade-Mark subsequently petitioned the Industrial Board of Appeals of the State of New York to review the Commissioner's order. After a hearing, the Board found that the tip-pooling arrangement was voluntary.
Judicial review of a determination rendered by an administrative body after a hearing is limited to whether that determination is supported by substantial evidence upon the entire record (CPLR 7803[4]. In other words, this court must determine whether there exists a rational basis to support the findings upon which the agency's determination is predicated (Matter of American Tel. & Tel. Co. v. State Tax Comm., 61 N.Y.2d 393, 400, 474 N.Y.S.2d 434, 462 N.E.2d 1152; see also, Matter of Purdy v. Kreisberg, 47 N.Y.2d 354, 358, 418 N.Y.S.2d 329, 391 N.E.2d 1307; Matter of County of Nassau v. State of New York Public Employment Relations Bd., 103 A.D.2d 274, 479 N.Y.S.2d 750).
In this case, there was testimony...
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Va. M. ELLIOTT v. LEATHERSTOCKING Corp.
...the employees whatever has been charged to provide gratuities, without reference to a specific percentage."); Hartnett v. Wade-Mark Eleven, Inc., 156 A.D.2d 559 (2d Dep't 1989) (affirming the decision of the Industrial Board of Appeals that revoked the Commissioner of Labor's determination ......
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Ayres v. 127 Restaurant Corp.
...of the restaurant, was permitted to share in the tips. While tip-pooling is not per se illegal, see Hartnett v. Wade-Mark Eleven, Inc., 156 A.D.2d 559, 549 N.Y.S.2d 69, 70 (2d Dep't 1989), N.Y. Labor Law § 196-d prohibits any "employer or his agent" from "demand[ing] or accept[ing], directl......
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Garvin v. New York State Public Employment Relations Bd.
...300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183; Matter of Hartnett v. Wade-Mark Eleven, 156 A.D.2d 559, 549 N.Y.S.2d 69). ...