October 7, 2010 – Attorneys for Smith & Wollensky will meet with U.S. District Judge Ruben Castillo next month to try to work out a settlement in the class action lawsuit against the Chicago steakhouse.

The settlement conference was set for November 10 at a status hearing Thursday morning.

A waiter at Smith & Wollensky filed the case last year, over hourly workers being paid less than minimum wage. Gerald Schmidt claimed waiters and bartenders at the Marina City restaurant are paid less than $8.25 per hour. Employers can do that if wages plus tips equals the minimum. But Smith & Wollensky is accused of requiring employees to work at the lower wage before the restaurant opened and after it closed, when they would not be tipped.

On July 26, Castillo granted a motion for class certification. That meant that anyone who has worked at Smith & Wollensky since March 25, 2006 – earning below minimum wage plus tips – is now a plaintiff. Also included is anyone who may have worked more than 40 hours a week but was paid less than time-and-a-half. According to Douglas Werman, an attorney for Schmidt, that could amount to 140 current and former employees.

U.S. District Judge Ruben Castillo (left) is the first Latino federal judge in the state of Illinois.

In December 2009, Smith & Wollensky, claiming privacy concerns, was reluctant to provide court-ordered time and payroll documents – needed to identify the names of tipped employees – until class certification was granted. Werman says documents provided in January 2010 were so heavily redacted, “they contained virtually no useful information.”

On July 9, subpoenas were served on six employees of Smith & Wollensky, seeking a variety of employment-related documents.

Werman noted in court on Thursday that attorneys for the restaurant, part of a chain based in New York, were now “responding promptly” to discovery requests.

 Related story: Smith & Wollensky in class action lawsuit over wages