On May 3, 2019, Fitapelli & Schaffer, LLP filed a class action lawsuit against Restaurant Marc Forgione (“Forgione”) for unpaid wages. This lawsuit seeks to recover minimum wages, misappropriated tips, call-in pay, and other damages for the plaintiff and his similarly situated co-workers. Affected employees may include servers, bussers, food runners, bartenders, and other tipped employees (collectively, “Tipped Employees”) – who work or have worked at Forgione, located at 134 Reade Street, New York, NY 10013.
Forgione has paid its Tipped Employees at or below the applicable “tipped” minimum wage rate but failed to satisfy the strict requirements under the Fair Labor Standards Act (“FLSA”) or the New York Labor Law (“NYLL”) that would allow them to apply a “tip credit” to Tipped Employees’ wages. For example, they failed to provide Tipped Employees with proper notification of the tipped minimum wage rate or tip credit provisions of the NYLL, or of their intent to apply a tip credit to Tipped Employees’ wages. Forgione also maintained a policy and practice where Tipped Employees were required to spend more than 20% of their shift and/or 2 hours performing non-tip producing side work, including, but not limited to: folding napkins, refilling ice buckets, stocking and refilling garnish stations, chopping fruits and vegetables, refilling the chef’s station, setting up tables, attending pre-shift meetings, cleaning service stations, and restocking plates. Tipped Employees performed this side work at the start, during, and at the end of each shift, usually before or after service when the restaurant is closed to the public. Tipped Employees were unable to earn tips during the time they had to complete side work and should therefore receive at least the full minimum wage rate during the applicable side work time.
In addition to excessive side work, the Forgione required Tipped Employees to share their hard-earned tips with non-tip eligible positions, specifically, with expeditors and the bar/event & service manager. The Complaint alleges that expeditors at Forgione did not have enough customer interaction to receive tips. In addition, Forgione made Tipped Employees share part of tips from private parties with the bar/event & service manager, who should not have received tips.
Unfortunately, violations like this are far too common in the restaurant industry. Fitapelli & Schaffer, LLP specializes in wage and hour violations in employment law and can offer helpful insight if you have questions about how you are being paid. If you work or worked for Restaurant Forgione as a tipped worker or would like a free consultation for an employment matter, you can reach us at (212) 300-0375 or visit our website for additional information.
You may also view the complaint here.