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Court finds restaurant wellness surcharges are totally legal, actually

Brian Mark Peterson, Star Tribune

Brian Mark Peterson, Star Tribune

Remember when we had the time and energy to get heated over wellness surcharges?

It feels like a lifetime ago, so let's recap. Last year, when restaurants were just struggling generally and not rapidly circling an industrial-sized COVID-19 drain, many began introducing employee wellness fees.

The upcharge—typically somewhere between 3 and 5 percent of the total bill—had started appearing on the menu at places owned by Jester Concepts (Parlour/Borough, P.S. Steak), Parasole Restaurants (Manny’s, Chino Latino), and Craft and Crew Hospitality (the Howe Daily Kitchen & Bar, Stanley’s Northeast Bar Room), among others.

The idea? To help business owners pay for the ever-skyrocketing cost of health insurance. A few told City Pages at the time that their premiums can shoot up as much as 30 percent in a single year. 

Most also said that in cases where customers complained, they'd simply waive the fee. But not Blue Plate Restaurant Company, which owns restaurants like the Lowry and Longfellow Grill. 

That didn't sit well Minnesota's Christopher Ashbach, who filed a class action suit against Blue Plate in December. He didn't care for their newly introduced surcharge, which he noticed on the menu at the Freehouse. 

Or rather, didn't notice, at least at first—Ashbach's suit alleged that he "unknowingly paid more to Blue Plate and has been damaged," though the restaurant said it printed information about the charge on its menus. He was charged $.52 (52 cents) in addition to what he paid the Freehouse for his oysters and coffee. He was seeking an injunction against the fee, plus more than $50,000 to “recoup the fee that’s been paid by consumers."

The case was dismissed last week.

"After a very quick review of the allegations and discussion of the actual facts with Blue Plate, I knew that they had not done anything wrong," says Joe Windler, the Winthrop & Weinstine attorney who represented the restaurant company in the suit. Windler says he's "grateful that we were able to put this meritless lawsuit behind Blue Plate so that they can get back to doing what they do best: making great food and memories for Minnesotans to enjoy."

If the class was certified, Ashbach was asking to have all employee wellness fees be repaid and to have Blue Plate pay punitive damages along with his attorneys’ fees.

But! The bottom line is that these fees are perfectly legal when they're disclosed. The Freehouse disclosed their charge on the menu and on the bill; it's not their fault he didn't notice. 

Our guy seems a little trigger-happy with the litigation, so we won't editorialize too much here. Let's just say that the restaurant business was always fickle and uncertain, and it's gotten worse thanks ("thanks") to COVID-19.

Meanwhile cooks and servers find themselves on the front lines of a pandemic, maybe working for less than if they could collect unemployment, often without healthcare.

If you're still employed and still eating out... is 3 percent really that much after all?