Maimon Kirschenbaum Earns Reputation of “Giant Killer” in Restaurant Industry

A recent article in Palm Beach Illustrated characterizes New York attorney Maimon Kirschenbaum as a “giant killer” in the restaurant industry. Kirschenbaum’s reputation for holding restaurateurs responsible for illegal tip withholding practices may be leading to a shift in the way famous chefs do business.

In the past few years, workers at multiple high-profile restaurants in the city have received over $40 million in damages from their employers, including Jean Georges, Smith & Wollensky, Balthazar, Nobu, Le Bernadin and Mario Batali. At only 34 years old, Kirschenbaum is “shaking the very foundation of Manhattan’s restaurant industry,” according to Batali’s partner, Joe Bastianich.

The “foundations” to which Bastianich refers include the widespread (yet illegal) practices of stealing tips from servers to contribute to the salaries of other support staff, such as bartenders or bus help. In this manner, restaurants continue to pay their staff paltry wages and generate higher profits for themselves.

When Kirschenbaum takes on new clients in similar suits, additional plaintiffs often join in, leading to class-action lawsuits. These high-visibility cases impose significant negative publicity on restaurants, the owners of which often can little afford to tarnish their “celebrity chef” reputations.

According to Illustrated, The recent actions of Sushi Yasuda to move to a gratuity-free pay structure and pay their staff living wages likely reflects a shift in paradigm among New York restaurants, who know attorneys like Kirschenbaum are there to represent their employees.

Two recent lawsuits in the New York Court of Appeals regarding tip distribution among Starbucks workers will likely shed light on practices in the larger hospitality industry, according to a recent article by Law360.

In the cases, two different groups of Starbucks workers are setting forth claims regarding how the chain allows tips to be distributed. The first group, hourly baristas, asserts that supervisory staff should not have access to the tip pool, as the latter individuals are “agents” of the company.

The second group, comprising assistant managers, has filed a case before the Court of Appeals claiming the primarily customer-facing duties of these positions entitle them to a share in tips. Because these individuals earn comparable wages and cannot hire or fire employees, they argue their positions should not be exempted from tip earnings.

According to the Department of Labor, the plaintiffs and attorneys in the baristas’ case misinterpreted Statute 196-d, which allows those with “managerial or supervisory responsibilities” to partake in tips as long as such duties do not take precedence over the services they provide to customers.

Representing the baristas in their case is Daniel Maimon Kirschenbaum of Joseph Herzfeld Hester & Kirschenbaum LLP, who believes the restaurant industry will try to use the case to sanction irresponsible compensation practices should the court not rule for the plaintiffs.