Lawsuit accuses Lafayette pizza owner of tip theft

LAFAYETTE — A former employee of Martino’s Pizzeria is suing the restaurant and its owner, who is accused of improperly including himself in a tip pool meant for workers. 

Cullen McGinnis, in a complaint filed this month in Boulder County District Court, alleges that Martino’s owner Martin Vacco II regularly helped “employees with preparing food and serving customers,” and “would include himself in the employee tip pool for all shifts that he was present at the restaurant.”

The restaurant ownership “had a policy or practice of stealing tips by wrongfully including Vacco in the tip pool and stealing a portion of the tips that were the sole property of McGinnis and others,” the complaint said. 

State labor law “prohibits an employer from a claim to, right of ownership in, or control over an employee’s gratuities (tips),” according to the Colorado Department of Labor and Employment. “However, employers may require employees to share or allocate gratuities on a pre-established basis with other employees so long as the employer notifies each patron in writing.”

McGinnis, who worked at Martino’s on 1389 Forest Park Circle from 2019 to April 2023, was initially unaware that owners aren’t allowed to dip into the dip pool. That changed late last year, and McGinnis filed a complaint with the CDLE.

“McGinnis was unable to calculate all of the tips owed to him during the relevant period because he did not have access to all of the records from that period, but with the limited records available to him calculated that he is owed at least $30,265.36 in stolen tips,” the lawsuit alleges. 

Vacco, the complaint claims, told McGinnis that “he felt he was entitled to being included in the tip pool, regardless of his status as the owner.”

This spring, Vacco, who didn’t respond to requests for comment Monday, was confronted about the alleged tip theft, the lawsuit said. The conversation “grew hostile and led McGinnis to quit employment because of Vacco’s improper taking of employee tips.”

McGinnis alleges that Vacco offered to settle the dispute with a $3,000 payment, less than a tenth of what the plaintiff claims he is owed.  

The lawsuit is Cullen McGinnis vs. Martino’s LLC, doing business as Martino’s Pizzeria, and Martin J. Vacco II. Case number 2023CV30496, filed July 13, 2023, in Boulder County District Court. 

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