A former delivery driver for New York Korean eatery Barkogi has filed a proposed collective action against his ex-employers over alleged violations of federal and state labor law. The suit accuses the defendants—Golden Abacus Inc. and four individual owners/managers of the restaurant— of failing to appropriately compensate its delivery workers, unlawfully appropriating tips, and other violations of the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL).
According to the lawsuit, the plaintiff worked at the restaurant from January 2014 to January 2016, where he was paid an hourly tip-credited rate of $5.00 until December 2014, and a rate of $7.50 per hour from January 2015 for the remainder of his employment. The suit argues that although the plaintiff was ostensibly employed as a delivery driver, he should have been paid at least the full hourly minimum wage—not the tip-credited rate—given that he spent over 20 percent of each shift performing non-tipped work, such as washing the sidewalk before placing dining tables outside and cleaning the restaurant.
Adding to the alleged wage violations, the suit accuses the defendants of unlawfully appropriating a portion of the proposed class’ tips. The plaintiff claims that the defendants “pocketed” five to six dollars of his weekly tips, as well as a portion of all tips from catering orders.
“Under the FLSA and NYLL, in order to be eligible for a ‘tip credit,’ employers of tipped employees must either allow employees to keep all the tips that they receive or forgo the tip credit and pay them the full hourly minimum wage,” the complaint reads.
The plaintiff typically worked 62.5 hours per week without appropriate time-and-a-half overtime pay, the suit continues, and was further deprived of lawful “spread-of-hours” pay, as required by NYLL. The plaintiff also alleges he never received a legally required written notice of his rate of pay or his employers’ intent to take a tip credit against his earnings.
“Defendants’ pay practices resulted in [the plaintiff] not receiving payment for all his hours worked and resulted in [the plaintiff’s] effective rate of pay falling below the required minimum wage rate,” the case summarizes.