The Law Firm of Lowell J. Kuvin and Morgan & Morgan File Suit Against NOBU Restaurant in South Beach

The law firm of Lowell J. Kuvin and Morgan & Morgan have filed suit in federal court against NOBU restaurant located in South Beach. The complaint alleges two violation of the Fair Labor Standards Act (“FLSA”) in that NOBU did not properly pay its servers overtime and it allowed managers and kitchen staff to participate in the tip pool. The restaurant has yet to file a response to the claims made by the two former employees.

Restaurants in Florida are allowed to pay employees who receive tips as little as $4.23 — less than the federal and Florida minimum wage of $7.25 per hour.

To apply the so-called tip credit, employers are not permitted to share tips among managers, according to Lowell J. Kuvin, 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. Kuvin 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. Kuvin 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.

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

A similar suit was filed against NOBU and two sister restaurants in New York state. That suit was settled before it went to trial for approximately $2.5 million.