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At Nobu, a Lawsuit Over Workers’ Tips

Just who is entitled to share the tips at New York City’s fanciest restaurants?

That question is at the heart of a federal lawsuit filed in Manhattan yesterday against Nobu Restaurants, on behalf of workers at its Lower Manhattan businesses, Nobu and Nobu Next Door, and its Midtown location, Nobu 57. The actor and director Robert De Niro is a part owner of the Manhattan restaurants; the Nobu chain includes 11 restaurants in the United States and 8 overseas.

As The Associated Press reported, the two waiters behind the lawsuit, Alisa Agofonova, 28, and Aaron Pou, 31, say they were forced to share tips with restaurant management, a violation of state law, which bars managers from taking any part of workers’ tips. The suit also alleges that the restaurants failed to pay employees overtime.

Carolyn D. Richmond, a lawyer for Nobu, said the restaurants would contest the suit. She said the company did nothing wrong.

The lawsuit [pdf] raises a number of issues in labor and employment law.

Restaurants in New York State are allowed to pay employees who receive tips as little as $4.35 — less than the federal minimum wage of $5.85 per hour and the New York State minimum wage of $7.15.

To apply the so-called tip credit, employers are not permitted to share tips among managers, according to D. Maimon Kirschenbaum, a lawyer for the plaintiffs. The lawsuit asserts that Nobu did just that by sharing tips with floor managers, or floor captains.

“They were basically supplementing managers’ salaries from waiters’ pay,” Mr. Kirschenbaum said. “They’ve created a ridiculous subterfuge, saying, ‘If we call them a floor captain then he’s not a manager.’ It’s a thinly veiled attempt to get around the law.”

The definition of who is properly considered a tipped employee is an interesting one. Along with waiters and bartenders, maître d’s, hosts, sommeliers and busboys are generally considered entitled to share in tips, while a floor manager who simply directs waiters generally is not.

“It’s question of service,” Mr. Kirschenbaum said. “A maître d’ that actually serves you” — even if it means clearing a single plate if the waiter is busy, for example — is entitled to tips, he said.

Mr. Pou was a server at Nobu in TriBeCa from 2001 to 2006 and now lives in San Francisco. Ms. Agofonova was a server at Nobu 57 from early 2006 until this year.

These are incredibly hard–working waiters,” Mr. Kirschenbaum said. “The standards to get a job at Nobu is pretty high.”