ASPEN - The hiring of an illegal immigrant has emerged as an issue in a class-action lawsuit over an Aspen restaurant's tipping pool.
Faced with allegations that it runs an illegal tipping pool, Cache Cache claims that the federal suit lacks merit because its sole plaintiff so far, Sandro Torres, entered the United States as an illegal immigrant and used phony documentation to get a job at the upscale restaurant.
Torres, who once bused tables at the downtown restaurant, sued Cache Cache in January. The suit was filed in the U.S. District Court of Denver by Fort Collins attorney Brian Gonzales, who has sued other restaurants throughout Colorado making similar accusations.
Depositions, including those of Torres and Cache Cache owners Jodi Larner and Chris Lanter, have been taken. The discovery deadline was Nov. 1; a jury trial is set for June.
Transcripts from July 24 deposition of Torres show he admitted to entering the country illegally from Mexico. He also conceded, when deposed, to working at three other Aspen businesses illegally.
According to the deposition transcripts, Torres arrived in the U.S. in 2000 and worked various jobs in the Roaring Fork Valley. He did not file state or federal income tax returns from 2000 to 2007, but in 2008, when he obtained legal status, he made good on his back taxes, he said in a deposition.
Although Torres worked here illegally, his attorney has contended in subsequent court filings that it's an "open secret" that restaurants such as Cache Cache hire undocumented workers and Torres' immigration status is not germane to his case.
The arguments underlie a motion pending before U.S. Judge Lewis T. Babcock. Filed Oct. 8 by Cache Cache's attorney, Peter Thomas, of Aspen, the motion says the suit has not achieved the class-action status required to move forward and that Torres' allegations are unsubstantiated and his credibility tainted.
Torres, the only Cache Cache worker who has accused the restaurant of illegal tip pooling, has "hopes of profiting from this period of ill-gotten employment," the motion says. He is the sole plaintiff in the suit, which is seeking other workers "similarly situated" as Torres to join the claim.
"Mr. Torres was hired by Cache Cache in 2004 where he worked until 2008. Mr. Torres provided Cache Cache with a counterfeit social security card and submitted falsified paperwork to the federal government in order to obtain employment with Cache Cache," Thomas, Cache Cache's attorney, wrote in a motion filed Oct. 8.
Gonzales, on behalf of Torres, who also worked at Cache Cache from January 2011 to April 2011, when he had legal status, conceded as much. But Torres' immigration status is not relevant, Gonzales argued in a response to the Cache Cache motion dated Oct. 28.
"It is an 'open secret' that the restaurant industry, including Cache Cache, employs numerous undocumented workers," the response says. "Nonetheless, Cache Cache impugns (Torres') credibility by arguing that he worked illegally. This fact is irrelevant both to issues of credibility and to the question of whether (Torres) should be paid his earned wages."
During his deposition, Torres said Cache Cache management was aware that he had a fake ID at the time of his hiring. And Gonzales also suggested that employers can exploit illegal immigrants by paying them less.
"If employers could use an employee's immigrant status to undermine the (Fair Labor Standards Act) protections and enforcement, employers would be further incentivized to capitalize on what is perhaps the most attractive feature of such workers - their willingness to work for less than the minimum wage," Gonzales wrote in his response to Cache Cache's October motion.
Torres' complaint says he made less than minimum wage - $4 to $4.25. Paying less than minimum wage to regularly tipped employees is a standard practice in the restaurant industry. But for restaurants to take a tip credit against the minimum wage, they must adhere to state labor laws, which allow for tip pools.
By Colorado law, Torres' suit alleges, the only employees who can collect from a tip pool are "front of the house" workers such as servers and hostesses. But at Cache Cache, such employees as chefs, dishwashers and food preparers - who were not regularly tipped - also participated in the tip pool, the suit says.
By doing so, Cache Cache violated the Colorado Wage Claim Act and the federal Fair Labor Standards Act, the suit alleges.
Yet Cache Cache's October motion says it did not have a mandatory tipping pool as Torres alleged.
"Mr. Torres' story depends upon believing his allegation that he and all other wait staff were required to participate in a mandatory tip pooling/sharing policy," the motion says. "The undisputed facts belie his contention."
According to Cache Cache's motion, its tip-pooling policy has been "proper and legal." That's because its servers pool their tips at the end of the shift and share them with other restaurant workers who helped provide customer service during the shift.
"These other employees include bartenders, bussers, and servers who had performed host and other customer service functions during the shift," the motion says. "Only employees who customarily receive tips as part of their job duties and functions participate in the tip pool."
Torres' suit also accuses Cache Cache's management of receiving tips, another allegation the restaurant disputes. But when Torres was deposed, he admitted that just one person in management, the restaurant's head sommelier, received tips.
"Put simply, Mr. Torres has no cognizable claim that Cache Cache has an illegal tip pooling policy requiring the improper pooling of tips with management. The sommelier receives tips for his services to customers," the motion says. "(Torres') suggestion that this is improper lacks any factual or legal basis."
Torres also took another restaurant, Campo de Fiori, to federal court earlier this year on the same allegations. That suit has been settled for undisclosed terms, and it won't be officially closed until January, according to court filings.