The New York Daily News has reported that Ben’s Best, an iconic kosher deli in Queens, is being sued by its kitchen workers for minimum wage and overtime violations. The attorney for the kitchen workers in the case is Louis Pechman, founder of waiterpay.com.
A Queens’ Uno Pizzeria & Grill has been accused of wage theft by its waitstaff in a case filed in New York federal court. The lawsuit accuses the restaurant of violating the minimum wage requirement, overtime requirement, tip-credit notice requirement, and the 80/20 rule of the Fair Labor Standards Act and New York Labor Law.
According to the lawsuit, workers at the Astoria restaurant were required to punch out at the end of their scheduled shift, but had to work as much as two additional hours after punching out. Wage statements issued by the restaurant did not reflect the off-the-clock hours work.
The lawsuit also claims that Uno required its waitstaff to engage in non-tipped activities, such as moving heavy boxes, preparing food, wiping the restaurant walls, and cleaning the kitchen, for 20% or more of their workday. Attorneys for the waiters claim that because the waitstaff engaged in those non-tipped activities must be paid at the full minimum wage of $8.75, rather than the tipped minimum wage of $5 per hour, because of the violations of the 80/20 rule.
Hakkasan New York illegally retained tips and failed to pay any wages to the waitstaff that were sent home after reporting to work, according to a federal court lawsuit filed in New York. The lawsuit charged the restaurant with violations of the minimum wage requirements under the Fair Labor Standard Act and New York Labor Law. Furthermore, the lawsuit charged the restaurant with failure to pay the waitstaff according to the “Call-In Pay” and Service Charge requirements under the New York Labor Law.
Attorneys for Hakkasan waiters, waitresses, bussers, and bartenders claim that Hakkasan engaged in unlawful pay practices that violated the FLSA and New York Labor Law. The wage theft lawsuit claims that Hakkasan required customarily tipped employees to pool their tips with non-tipped employees such as expeditors. Unlike tipped employees, expeditors do not perform any direct customer service, were not engaged in customarily tipped work, and did not have any meaningful interaction with customers. Specifically, an expeditor’s job duties were performed exclusively in the kitchen, completely out of the customers’ view. Expeditors worked as liaisons between the kitchen staff and front of house staff, and would ensure that food orders were organized and at the right temperatures.
The complaint alleges that Hakkasan employees would regularly report to work but be told to return home, and would not be paid their “call-in pay” as required by New York State Hospitality Wage Order § 146-1.5. The Wage Order provides that an employer must pay an employee who “reports for duty on any day, whether or not assigned to actual work, at the applicable wage rate for: (1) at least three hours for one shift, or the number of hours in the regularly scheduled shift, whichever is less; (2) at least six hours for two shifts totaling six hours or less, or the number of hours in the regularly scheduled shift, whichever is less; and (3) at least eight hours for three shifts totaling eight hours or less, or the number of hours in the regularly scheduled shift, whichever is less.”
The complaint also alleges that Hakkasan charged and collected “service charges,” from private events, and did not remit the gratuities to the waitstaff. The wage theft lawsuit claims that Hakkasan led or knowingly allowed its customers to believe that the Service Charge was a gratuity for the waitstaff by requiring a mandatory “service charge,” “administrative charge,” or a charge with a similar name compromising a percentage of the total bill. New York Labor Law § 196-d prohibits an employer from retaining “any part of a gratuity or of any charge purported to be gratuity.”
A Popeyes Louisiana Kitchen franchisee violated the age discrimination law when it refused to hire veteran applicants at its Coatesville, Pennsylvania restaurant because of their ages, according to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC).
Attorneys for the EEOC allege that during an interview for a cashier/cook position, the general manager asked Lula Wright-Hill, then age 54, her age and said the she was “too old” to work at the restaurant. The general manager allegedly made a similar age inquiry when Kevin Bryant, then age 58, applied for a vacant cook position and told Bryant the restaurant was not hiring. A Department of Veterans Affairs vocational counselor referred these two prospective employees and other veterans to the Popeye’s position. The EEOC said that the general manager told a vocational counselor not to bring him older applicants because “They don’t work hard for me. They get tired easily.”
The EEOC’s age discrimination lawsuit also alleged that when Leroy Keasley, then age 40, applied for a shift manager position, the general manager also asked Keasley his age and told him that he was “too old” to work for the restaurant. The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against individuals 40 or older on the basis of age. The EEOC filed the age discrimination lawsuit in U.S. District Court for the Eastern District of Pennsylvania after attempting to reach a pre-litigation settlement through its conciliation process.
“It’s absurd that [the applicants] were well able to serve our country in the military, but then when they sought to return to the civilian workforce, were wrongfully deemed too old to cook or serve chicken by Popeyes general manager,” said EEOC Philadelphia District Director Spencer H. Lewis, Jr. “The age discrimination laws ensure that older workers are not deprived of the right to earn a living due to outdated prejudices and biases.”
Louis Pechman, founder of waiterpay.com, spoke to CBS News about Danny Meyer’s new “no-tipping” policy at his restaurants, and what it means for kitchen workers and servers.
A Dunkin’ Donuts franchisee was sued for implementing a scheme to deny workers overtime under the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). The franchisee owns Dunkin’ Donuts stores in Shirley, Riverhead, Southampton, Southold, and West Hampton, and other locations in Long Island.
The class action lawsuit filed in New York Federal Court alleges that a counter-person at the franchisee’s Shirley location was cheated out of his overtime pay and was not paid one and one-half times his hourly rate for the hours that he worked in excess of forty per week. Lawyers for the Dunkin’ Donuts workers say that the company had a corporate policy of skimming overtime from the paychecks of workers at all of its Long Island locations. Attorneys for the employees claim that Dunkin’ Donuts fabricated workers’ pay stubs by deliberately decreasing the number of hours on each pay stub such that the gross amount resulted in the same hourly rate for all the hours that employees worked.
Better ingredients, better pizza, but worse pay. Papa Johns forks over $500,000 for wage theft violations.
Attorney General Eric T. Schneiderman and the U.S. Department of Labor recently announced four settlements totaling nearly $500,000 with three current Papa John’s Pizza franchisees and one former franchisee, who together owned a total of nine restaurants in Queens, The Bronx, and Brooklyn. The franchisees investigated by the Attorney General and the U.S. Department of Labor’s Wage and Hour Division admitted to a number of labor violations, including minimum wage, overtime and other basic labor law protections. The employees underpaid by franchises announced in the settlements worked in several neighborhoods across Queens, as well as in neighborhoods in Brooklyn and The Bronx.
“These settlements and our successful partnership with the Attorney General’s office are a warning to employers who choose to violate state and federal wage laws that we do not tolerate such mistreatment of employees and will actively work together to pursue and obtain proper compensation for workers,” said Jeffrey S. Rogoff, the regional solicitor for the U.S. Department of Labor. Back wages and damages will be distributed to over 250 underpaid workers.
The agreements followed joint investigations into the franchisees, covering various time periods beginning as early as 2008. All investigated franchisees admitted to the violations of law outlined in the settlement agreements. The admitted violations included the following:
• Some stores failed to pay employees the minimum wage and overtime wages required under the federal Fair Labor Standards Act and state law.
• Some stores violated a state requirement that employers must pay an additional hour at minimum wage when employees’ daily shifts are longer than 10 hours.
• Some stores failed to provide adequate uniforms for employees for the number of shifts in a week, and also failed to pay the required uniform laundry allowance.
In addition to payment of $469,355 in back wages and liquidated damages, the franchisees which remain open must also institute complaint procedures, post a statement of employees’ rights, and designate an officer to submit quarterly reports to the Attorney General’s Office regarding ongoing compliance for three years, and one franchisee must also retain an independent monitor going forward.
Houlihan’s engaged in “pervasive skimming from employees’ tips and wages,” according to a federal court lawsuit charging the restaurants with violations of the minimum wage, overtime and record-keeping requirements of the Fair Labor Standards Act.
The wage theft lawsuit against Houlihan’s could recover millions in back wages, tips and liquidated damages on behalf of approximately 1,430 current and former Houlihan’s employees. The defendants include A.C.E. Restaurant Group Inc., A.C.E. Restaurant Group of New York LLC and Arnold Runestad. An investigation by the Department of Labor found that the defendants engaged in a number of practices that violated the FLSA. These include the following:
- Requiring servers and bartenders to contribute a percentage of tips to a tip pool, but using the tips to pay employees for tasks, such as custodial and kitchen work. The lawsuit claims that Houlihan’s regularly retained a portion of employee tips.
- Denying overtime pay to employees who worked at more than one restaurant, even when their combined hours totaled more than 40 hours in one workweek.
- Having employees work off-the-clock, earning tips for their labor.
- Routinely deducting money from employees’ paychecks for meals consumed during breaks, while also requiring payment, at times, for the meals. The deductions were greater than the defendants’ cost for providing the meals, and often resulted in some employees receiving less than minimum wage.
According to the Department of Labor, the severity of these violations and the number of affected workers is such that restitution, could amount to millions of dollars. Restaurant workers are among those in our economy who are most vulnerable to wage violations, and we are committed to pursuing remedies vigorously on their behalf whenever necessary. Houlihan’s practices deprived many of their employees of money rightfully earned — money that they need to afford basics. Reducing labor costs by shorting workers also places law-abiding restaurants at a competitive disadvantage, and violates the principle of a fair and level playing field laid out in the FLSA.
The New Jersey restaurants are located in Bayonne, Brick, Bridgewater, Cherry Hill, Eatontown, Fairfield, Hasbrouck Heights, Holmdel, Lawrenceville, Metuchen, New Brunswick, Paramus, Ramsey, Secaucus and Weehawken. The New York locations are in Farmingdale and Westbury.
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week.
The FLSA requires an employer of a tipped employee to pay no less than $2.13 an hour in direct wages ($5.00 in New York), provided that amount plus the tips received equals at least the federal minimum wage of $7.25 an hour ($8.75 in New York). If an employee’s tips combined with the employer’s direct wages do not equal at least the minimum wage, the employer must make up the difference.
Tips are the property of the employee, and the employer is prohibited from using an employee’s tips for any reason other than as a credit against its minimum wage obligation to the employee (tip credit) or in furtherance of a valid tip pool among employees who customarily and regularly receive tips. A valid tip pool may not include employees who do not customarily and regularly receive tips (for example, dishwashers, cooks, chefs and janitors), and an employee cannot be required to turn over his tips to the employer. Employers also are required to maintain accurate time and payroll records.
A former server at T.G.I. Friday’s in Honeoye Falls in Upstate New York has filed a class action lawsuit alleging violations of the tip credit provisions of New York Labor Law (NYLL) and the Fair Labor Standards Act (FLSA). The lawsuit, filed in the Northern District of New York, alleges that T.G.I. Friday’s did not give its waiters, waitresses and busboys proper notice that it was taking a tip credit, and therefore is required to pay tipped employees at the full New York minimum wage of $8.75 per hour.
United States Department of Labor guidelines provide that, in order to be able to apply the tip credit toward the minimum wage under the FLSA, a restaurant must inform its employees “of the amount of cash wages the employer is paying a tipped employee, the additional amount claimed by the employer as a tip credit, that the tip credit claimed by the employer cannot exceed the amount of tips actually received by the tipped employee, that all tips received by the tipped employee are to be retained by the employee except for a valid tip pooling arrangement limited to employees who customarily and regularly receive tips, and that the tip credit will not apply to any tipped employee unless the employee has been informed of these tip credit provisions.”
The New York Hospitality Wage Order similarly provides that a restaurant “may take a credit towards the basic minimum hourly rate if a service employee or food service worker receives enough tips and if the employee has been notified of the tip credit.” In New York, servers are entitled to receive a wage of at least $5.00 per hour, and credit for tips shall not exceed $3.75 per hour, provided that the total of tips received plus the wages equals or exceeds $8.75 per hour. The Hospitality Wage Order provides that “prior to the start of employment, an employer shall give each employee written notice of the employee’s regular hourly pay rate, overtime hourly pay rate, the amount of tip credit, if any, to be taken from the basic minimum hourly rate, and the regular payday. The notice shall also state that extra pay is required if tips are insufficient to bring the employee up to the basic minimum hourly rate.”