The New York State Department of Labor, in response to a Freedom of Information Law request by The Citizen, has shed more light on its investigation of a Skaneateles resort for tip appropriation.

However, the department has not explained why its investigation only covered months of a policy that appropriated tips for a decade at the resort, Mirbeau Inn & Spa at 851 W. Genesee St.

According to a letter shared with The Citizen on Aug. 9, the department ordered Mirbeau to pay $121,605.80 in September 2022 after an investigation into tip appropriation at the resort's locations in Skaneateles and the Dutchess County town of Rhinebeck. The amount covered the appropriated tips, civil penalties and liquidated damages, including a $1,000 penalty for violating state labor law.

After Mirbeau missed the state's payment deadline of Oct. 17, the Department of Labor requested that the resort perform a self-audit, according to the department's final narrative of the investigation that was provided to The Citizen. The reason for the state's request was not included in the narrative. The self-audit determined the amount of appropriated tips to be $82,288.84, but Mirbeau requested that liquidated damages be removed from its payment. The department agreed to lower them from 25% to 12.5% if the amount was paid in full, and the resort paid the state $92,588.90 that December.

Mirbeau employees received payments later that month compensating them for the appropriated tips, as reported by The Citizen in April. According to former employees, the resort's gratuity policy deducted 3% of a service's revenue from the gratuity for the employee who provided that service — lowering a standard 20% tip to 17%, for example. The policy lasted from 2008 to 2018.

"Employee statements and detailed tip reports show that the tips earned by employees did not match the tips paid to employees," the Department of Labor wrote to Mirbeau in September 2022. "Tip policies need to be put in writing and given to the employee to sign at the time of hire. Percentages deducted for a tip pool must be taken from the tips directly and not the service charges."

The 3% deducted from Mirbeau employees went to support workers who assisted with the guest's experience at the resort as part of "a team approach to service," said Jonathan T. Dal Pos, a partner in the company's general counsel. The resort itself "did not keep one dime," he told The Citizen. The policy was modeled after restaurants and other spas that Mirbeau employees worked at previously.

In her December email to Mirbeau employees announcing the payments, Director of Human Resources Danielle Nighelli described the resort's violation of state labor law as a "grey area."

While the resort's policy spanned 2008 to 2018, the Department of Labor's investigation spanned 2018 to 2021. That limited window, former Mirbeau employees said, resulted in their payments being "frustratingly small" compared to the amount of tips that were appropriated from them — seven months compared to several years. The department did not respond to The Citizen's questions about why its investigation window was limited to those years, nor has the department responded to former employees of the resort who have asked if the investigation could be extended further back in time.

Jenn Derbyshire, who worked at Mirbeau in Skaneateles as an esthetician from 2006 to 2020, received a payment of $3,085 when she should have received 10 times that, she told The Citizen this week.

"To say it’s disappointing to be so severely let down by the people who are supposed to be protecting New York state employees is a severe understatement," she said. "Sadly, I had given up on Mirbeau doing the right thing years ago. ... It's disgusting (but) it seems it worked out in their favor. To only be held responsible for seven months' worth of a decade-long illegal practice is laughable."

Heather Farr, who worked at the resort as a massage therapist from 2011 to 2021, told The Citizen this week that the ownership and management of Mirbeau "should be ashamed of themselves."

"To send those checks out and act like they were happy to send them, as though they're actually pro-worker, without explaining why it was only for that short window, is to be deliberately dishonest."