Fig & Olive Restaurants Sued for Wage Theft

Fig & Olive restaurants in New York have been sued by servers, bussers, food runners and bartenders for wage theft violations. The class action lawsuit claims that the three Fig & Olive locations in Manhattan unlawfully retained tips and applied a tip credit against tipped employees’ wages despite not providing notice and requiring the tipped employees to engage in non-tipped duties for more than 20% of the total hours worked each workweek.  

The lawsuit claims that Fig & Olive was not entitled to claim any tip credit allowance under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) because it had failed to inform employees that (1) the tip credit cannot exceed the amount of tips actually received by the workers; (2) that all tips received by the workers have to be retained by them; and (3) that the tip credit would not apply unless they had been given tip credit notice. The workers also allege that Fig & Olive was not permitted to apply a tip credit because the tipped workers spent more than 20% of their working time in non-tipped related duties including, taking out trash, putting away supplies, maintaining the kitchen area, and setting up for private events.

According to the lawsuit, Fig & Olive also unlawfully charged a gratuity fee to banquet event customers but did not remit the gratuities to the workers.  The lawsuit alleges that Fig & Olive failed to inform banquet event customers that the fee was not considered a gratuity and would not be distributed to the workers.  Further, the workers allege that managers unlawfully took cash tips which should have been distributed to the tipped workers.  Restaurants cannot require tipped workers to share their tips with non-service employees who do not customarily and regularly receive tips, such as managers.  Some restaurants choose to use tip sharing or tip-pooling methods for tip distribution, however restaurants can only require employees to split their tips from customers with other tipped workers who provide personal service to customers as a principal and regular part of their duties.

The workers are seeking unpaid minimum wages, overtime pay, illegally retained gratuities, liquidated damages, and attorneys’ fees and costs.

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