A former Union Kitchen employee and the United Food and Commercial Workers Union Local 400, the labor organization that represents current employees, has filed a wage theft lawsuit against the food incubator and retailer. The lawsuit comes as Union Kitchen management and their workers negotiate a first collective bargaining agreement, which has been riddled with disagreement and conflict.

The complaint, filed Tuesday morning in D.C. civil court and shared with DCist/WAMU, accuses Union Kitchen and its CEO Cullen Gilchrist of pocketing the tips of workers and violating D.C. law.

Gilchrist did not respond to request for comment.

Just last month, Union Kitchen reached a settlement agreement through the National Labor Relations Board with several workers, including the named plaintiff in this new lawsuit, Gabe Wittes. The company agreed to pay nearly $25,000 in backpay and frontpay to a total of five workers after they accused their employer of retaliating against them for organizing a union drive.

Wittes was fired last April after helping to organize a union drive at Union Kitchen and now works at Local 400. Wittes says he sought to unionize Union Kitchen when he was still employed there in part because he and a colleague learned of a discrepancy in how tips were paid out. A collective bargaining agreement could give workers a say in future wage policies and grievance processes, he said when the union went public.

While last month’s NLRB ruling addressed the union busting and lost wages related to the firing of those five employees, this new suit addresses a separate wage theft claim that Wittes alleges began months earlier.

“In order to actually get backpay [for that period], we do need to pursue legal action,” says Wittes. “I was stolen from. Every worker I worked with at Union Kitchen prior to October 18 [2021] was stolen from.”

According to the lawsuit filed in D.C. Superior Court, Union Kitchen underpaid Wittes at least $418.58 for eight weeks of work. Wittes, who was employed at Union Kitchen between Dec. 2019 through March 2020 and from May 2021 through April 2022, estimates his former employer underpaid him even more than that, possibly thousands of dollars. Through the court’s discovery process, Wittes hopes to learn how much he’s owed, as well as how many of his former colleagues have been impacted.

Wittes and Local 400’s attorney, Nicholas Jackson of  Handley Farah & Anderson PLLC, says workers can still opt in as plaintiffs in lawsuit because it is a collective action.

Wittes first identified the pay discrepancy in July 2021, after he and a colleague compared their credit card tips from pay stubs and point-of-sale reports, according to the lawsuit. The colleague’s pay stub for April 16, 2021, stated that she’d earned $343.57 in tips but point-of-sale reports suggested she should have received $681.48, per the complaint — an underpayment of $337.91.  The lawsuit alleges that Wittes was similarly underpaid for several months in 2021, and possibly earlier.

The lawsuit claims that Gilchrist admitted to wrongdoing in a meeting with Wittes and his colleague, as well as in an email. “Mistakes happen, small and large, and we acknowledge them, do our best to fix them, and chart a course that removes them,” Gilchrist allegedly said. “Your review of the laws around tipping and your spreadsheets and your advice have spurred us to look deeper and make innovations and improvements. I am pleased with our tip pooling policy in the current handbook.”

After confronting Gilchrist about the alleged wage theft, Wittes and his colleagues received a bonus, which they interpreted as an admission of guilt on Gilchrist’s part.

When asked to comment on the tip discrepancy last year, Gilchrist told DCist/WAMU that the company follows “all applicable laws regarding employment, and certainly that extends to how tipping works.” He also confirmed revoking workers’ access to the point-of-sale reports. Gilchrist told DCist/WAMU that the information was confidential, but workers saw the move as a form of retaliation for uncovering the pay discrepancy.

Gilchrist ultimately ended the option for patrons to tip employees by credit card in February 2022, which Wittes says reduced his total wages substantially.

Tipped workers are more susceptible to wage theft, according to some labor experts.

Justin Zelikovitz, a managing attorney at DCWageLaw who represents workers who aren’t being paid properly, says lawsuits like the one against Union Kitchen are not uncommon. He’s representing a handful of workers with similar complaints right now. (And it’s not even the only suit for Local 400: The union is also supporting a class action lawsuit against Kroger, alleging that the grocery chain is engaging in widespread wage theft against their members, according to communications director Jonathan Williams.) That Union Kitchen employees had as much access as they did to tip data is rare, he adds, because this information is usually opaque and so wage theft is harder to prove.

While the allegations in the lawsuit appear damning, Zelikovitz says there could be a number of explanations for why the house kept a percentage of tips. For example, it could be related to fees. “The big lesson is tips are stupid and complicated and it’s very easy for employers to mess it up and employees to feel cheated,” says Zelikovitz.