Japanese Restaurant Faces $440,000 Judgment for Waiters’ Claims for Unpaid Overtime, Tips and Spread of Hours Pay

Four former waiters at Aoki Sushi in Manhattan are entitled to $420,627 in damages and $19,425 in attorneys’ fees, according to the May 2, 2011 Report and Recommendation of United States Magistrate Judge James C. Francis IV. The Report and Recommendation, coming out of federal court in the Southern District of New York, found that the restaurant unlawfully forced the waiters to pay the kitchen staff out of their tips.  Under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law, an employer is not entitled to a tip credit if the waitstaff is forced to share tips with managers or the kitchen staff.  The Report and Recommendation also found that the restaurant failed to pay these workers overtime compensation for hours worked over forty in a week and failed to pay the workers “spread of hours” compensation for workdays that lasted more than ten hours.