On July 24, 2018, Fitapelli & Schaffer, LLP filed a class action lawsuit on behalf of tipped employees who work or have worked at Sushi Seki restaurant locations throughout New York City. This lawsuit seeks to recover minimum wages, overtime compensation, misappropriated tips, call-in pay, and other damages for tipped workers who work or have worked at the following Sushi Seki locations:
• 365-367 West 46th Street, New York, New York 10036 – Sushi Seki Times Square
• 208 West 23rd Street, New York, New York 10011 – Sushi Seki Chelsea
• 1143 1st Avenue, New York, New York 10065 – Sushi Seki UES
Affected employees include servers, bartenders, bussers, food runners, and other similarly situated tipped employees.
Tipped Employees at Sushi Seki Restaurants are paid at or below the applicable “tipped” minimum wage rate. Defendants, however, have not satisfied 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. In this regard, Sushi Seki failed to provide Tipped Employees with written notification of the tipped minimum wage rate or tip credit provisions of the NYLL. Additionally, Sushi Seki maintained a policy and practice whereby Tipped Employees are required to spend more than 20% of their shift and/or 2 hours performing non-tip producing side work, including, but not limited to: stocking and cleaning service areas, polishing and restocking silverware and glassware, taking inventory and restocking sake and other alcohol bottles, setting up, refilling, and breaking down service stations
putting used towels into the laundry in the basement, setting up and breaking down Tatami rooms, including cleaning cushions and cleaning rooms, and rolling hot towels/napkins with chopsticks.
This extensive side work was to be completed at the start, during, and at the end of each shift, usually before or after service when the restaurants are closed to the public. These duties, customarily assigned to “back-of-the-house” employees in other restaurants, should be paid at the full minimum wage rate.
Additionally, Defendants required Tipped Employees to attend pre-shift meetings that ran between 20 and 30 minutes long per shift, for which Tipped Employees were paid at the tip-credit rate. Defendants’ timekeeping system is capable of tracking multiple job codes for different work assignments. Despite this, Tipped Employees are not required to record the amount of time they spend performing side work.
Sushi Seki also misappropriated gratuities from Tipped Employees by requiring them to engage in a tip distribution scheme where tips were shared with employees in positions that are not entitled to tips under the FLSA and/or NYLL, including, but not limited to, Sushi Chefs, Service & Beverage Director(s), and expeditors. Individuals employed in the position of Service & Beverage Directors are responsible for curating the restaurants’ wine and sake list(s) but have virtually no customer interaction, as they do not readily take orders from customers, do not bus customers’ plates or glasses, do not set tables for customers, and spend the majority of their shift in the back office, away from customer view. Additionally, Service & Beverage Directors at Sushi Seki also have meaningful authority or control over Tipped Employees, thus barring them from participating in any tip sharing arrangement. Individuals employed as expeditors are responsible for plating food and garnishing dishes in the kitchen. Expeditors have virtually no customer interaction, do not take orders from customers, do not bus customers’ plates or glasses, and do not set tables for customers. In addition, expeditors primarily remain in the kitchen away from customer view to perform their duties. As a result, expeditors at Sushi Seki are not entitled to share tips under the FLSA and/or the NYLL.
Unfortunately, these violations are not uncommon in the restaurant industry. If you work for any of the Sushi Seki locations and would like to learn more about this case, feel free to call us at (212) 300-0375 for more information. If you’ve worked at another restaurant and feel you are experiencing similar issues call us for a free consultation to discuss your potential claims. Visit our website for additional information.
You can also view the complaint here.