Past and present employees of Mirbeau Inn & Spa have received payments after an investigation by the New York State Department of Labor into the Skaneateles resort’s gratuity policy.
However, several of those employees told The Citizen the state’s investigation did not cover a long enough time period, making those payments “frustratingly small” as a result.
Those were the words of Heather Farr, who worked at Mirbeau as a massage therapist from March 2011 to September 2021. As Farr would learn from management, the policy deducted 3% of a service’s revenue from the gratuity for the employee who provided that service. So instead of a 20% gratuity for a massage, for example, a therapist like herself received a 17% one. The other 3% went to support workers like spa attendants and front desk staff who “assist with your guest’s spa experience,” according to an email from a manager she shared with The Citizen.
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“That seemed reasonable and too trivial to even question at the time,” Farr said. “The deduction for the redistributed tips was also never reflected in our paystubs.”
Mirbeau Hospitality Services, which operates the spa in Skaneateles as well as four other locations in New York and Massachusetts, created the policy as part of “a team approach to service,” said Jonathan T. Dal Pos, a partner in the resort company’s general counsel. Mirbeau “did not keep one dime,” he told The Citizen. The policy was modeled after restaurants and even other spas.
“We didn’t invent this,” he said. “Our spa managers recommended it based on their experiences at previous spas they worked for. It’s very common in the spa industry.”
It wasn’t until Farr consulted the state’s Hospitality Industry Wage Order in late 2017 that she realized the policy violated state labor law, which “prohibits employers from demanding, accepting, or retaining, directly or indirectly, any part of an employee’s gratuity or any charge purported to be a gratuity.” She said management responded to her concerns by attempting to hold a meeting with her to “explain how they were being compliant,” which she believed was “an attempt to fearmonger me.” In early 2018, she filed a complaint with the Department of Labor.
The department has moved on the complaint at “a glacial pace,” Farr said. To her confusion, it appears to have investigated Mirbeau’s newer location at Crossgates Mall in Albany first.
According to an order issued Dec. 31, 2019, and obtained by a Freedom of Information Law request by The Citizen, Mirbeau Crossgates LLC and owners Gary and Linda Dower were found by the department to owe employees $16,695.60 in appropriated tips. The Albany spa employed about 100 people at the time. With interest, damages and penalties, the total due was $75,480.27.
The department said in its order that Spa Mirbeau at Crossgates failed to pay wages and provide complete wage statements, as required by law, for the period of Oct. 30, 2017 — the time of its opening — through Aug. 27, 2018. The Dowers and their LLC have since appealed the order to the state’s Industrial Board of Appeals. As of this week, no decision has been issued.
Less is known about the department’s investigation of Mirbeau’s Skaneateles location. In response to requests for comment and a Freedom of Information Law request last year, the department did not provide The Citizen any information because the investigation was still open. Once the investigation was closed, the department again asked The Citizen to file a Freedom of Information Law request, which it did on March 21. On April 18, the department informed The Citizen it would need another 90 business days to respond due to its current volume of requests.
However, a December email to Mirbeau Inn & Spa employees from Director of Human Resources Danielle Nighelli indicates that the department’s investigation spanned 2018 to 2021. Before announcing the payments that resulted from the investigation, she said the department “questioned” the resort’s tip policy and whether it meets the state’s “strict tip eligibility criteria.”
“While our opinions on this grey area continue to differ, we agreed to settle the dispute,” she said.
But for Farr and other employees, the dispute is anything but settled.
Not only did the department’s investigation neglect several years that the gratuity policy was in place, but Mirbeau changed the policy in September 2018. So the investigation only covered seven months of appropriated wages, Farr said. The payment she received for a little less than $3,000 “barely touches” the full amount she calculates she is owed for her seven years working under the policy.
Jenn Derbyshire, who worked at Mirbeau as an esthetician from 2006 to 2020, may be owed even more. Her payment was $3,085, she told The Citizen. But since she worked at the spa from the time of the policy’s introduction in 2008 until its change 10 years later, she estimates she is owed at least 10 times the amount she received. She said the change was announced to employees with little fanfare, let alone an apology. Customers, she continued, were never made aware of the policy in the first place. Immediately after the change, her paycheck increased about $100.
“They were doing something wrong and they’re going to continue to do wrong things because there’s no consequence,” Derbyshire said of Mirbeau. “Maybe by the time I’m 80 I’ll get those tips back.”
Dal Pos declined to say how many Mirbeau employees received payments, and how much they totaled. Like Nighelli, he said the state labor law that prompted the investigation is “very gray and most certainly antiquated as pertains to spas,” but the company agreed to settle because only the employees would be paid. He added that he did not know why the investigation was limited to 2018 to 2021.
Farr said she remains in communication with Department of Labor officials in hopes of reopening the investigation into the Skaneateles resort with a longer time period.
“Several balls were dropped in this process,” she said.