A sex harassment expose by Eater accuses celebrity chef Mario Batali of inappropriately touching four women and engaging in a pattern of sex harassment that has spanned the last twenty years. According to Eater, one woman accused Batali of repeatedly forcibly pulling her towards his body from behind. Another woman accused him of groping her and compelling her to straddle him by blocking her exit. Two of the women allege Batali grabbed or rubbed their breasts during a party.
Following the allegations of sexual misconduct, Batali has announced that he would step away from his company and ABC asked him to take a break from his position as host of The Chew. Batali has not denied the allegations and has offered a public apology saying “I apologize to the people I have mistreated and hurt. Although the identities of most of the individuals mentioned in these stories have not been revealed to me, much of the behavior described does, in fact, match up with ways I have acted. That behavior was wrong and there are no excuses. I take full responsibility and am deeply sorry for any pain, humiliation or discomfort I have caused to my peers, employees, customers, friends and family.”
While sex harassment by household Hollywood names has dominated the media, far too little attention has been focused on the endemic sex harassment which exists in the restaurant industry. The Economist recently reported that while just 7% of working American women are employed in restaurants, a third of all those who bring sex-harassment cases to the EEOC are restaurant workers.
The U.S. Department of Labor has issued a proposal to change the tip sharing regulations under the Fair Labor Standards Act (FLSA). Under the proposed rule, workplaces would have the freedom to allow sharing of tips among more employees. The proposal would help decrease wage disparities between tipped and non-tipped workers – an option that is currently restricted by a rule promulgated in 2011 that has been challenged in a number of courts.
The Department of Labor’s proposal only applies where employers pay a full minimum wage and do not take a tip credit and allows sharing tips through a tip pool with employees who do not traditionally receive direct tips – such as restaurant cooks and dish washers. These “back of the house” employees contribute to the overall customer experience, but may receive less compensation than their traditionally tipped co-workers. The proposal would not affect current rules applicable to employers that claim a tip credit under the FLSA.
The Department of Labor promulgated tip regulations in 2011 that restricted this option. Since 2011, there has been a significant amount of litigation involving the tip pooling and tip retention practices of employers that pay a direct cash wage of at least the federal minimum wage and do not claim a FLSA tip credit. There has also been litigation directly challenging the Department’s authority to promulgate the provisions of the 2011 regulations that restrict sharing of tips.
The Department of Labor stated that in the past several years, several states have changed their laws to require employers to pay tipped employees a direct cash wage that is at least the federal minimum wage. This means that fewer employers can take the FLSA tip credit. The Department of Labor’s proposed new rule follows these developments, along with serious concerns that it incorrectly construed the statute when promulgating the 2011 regulations.
It should be noted that many states like New York and California, have laws that prohibit tips from being shared between back-and-front-of-the-house employees, and that also explicitly prohibit management from sharing in the pot.
Servers at Smokey Bones Bar & Fire Grill claim that the restaurant chain has engaged in tip credit violations and wage theft, according to a lawsuit filed in South Carolina federal court.
The lawsuit alleges that Smokey Bones, while taking advantage of the FLSA’s tip credit provision, required waitstaff to perform non-tipped side work that was not related to their tipped occupations as servers and bartenders, as well as required them to spend more than twenty percent of their shifts performing non-tipped side work that was related to their tipped occupations. The servers allege that they were required to pay the restaurants out of their tips when a customer walked out, were required to purchase additional Smokey Bones t-shirts with their tips, and were never notified that Smokey Bones was paying them less than minimum wage pursuant to the FLSA’s tip-credit provision. The waitstaff also allege that all three of those requirements violate the tip-credit provision.
In a May 31 decision, a South Carolina federal court ruled that conditional certification of a nationwide class of servers and bartenders was warranted. The court held that the waitstaff produced evidence of nationwide Smokey Bones job descriptions for servers and bartenders that on their face require side work. While the court ruled, there is no doubt that requiring side work does not necessarily violate the FLSA, the waitstaff made a sufficient showing that Smokey Bones’ nationwide side work policy potentially caused FLSA violations for all Smokey Bones servers and bartenders. The waitstaff and the other opt-ins’ declarations stated that at least three Smokey Bones locations in three different states all implemented the side work discussed in the server and bartender descriptions in such a way as to require violations of the dual-jobs regulation and/or the FOH’s twenty-percent rule.
Smokey Bones has 67 locations along the East in 16 states including Pennsylvania, New York, North Carolina, South Carolina, Florida, Massachusetts, Rhode Island, Maryland, Illinois, Kentucky, Indiana, Tennessee, Michigan, Georgia, Ohio, and Virginia.
Talula’s Garden, a Philadelphia restaurant, has agreed to pay 63 workers $400,000 for wage theft violations, including requiring employees to work unpaid hours, according to a lawsuit initiated by the U.S. Department of Labor. The lawsuit alleges Talula’s Garden violated the overtime, minimum wage, and recordkeeping provisions of the Fair Labor Standards Act (FLSA).
“The workers at Talula’s Garden did not receive the required minimum wage and overtime pay,” said a representative for the Department of Labor. “Our agency is committed to ensuring that workers not only receive the wages they have rightfully earned, but that employers are provided all the tools they need to understand and comply with the law.”
The investigation found that line cooks did prep work off-the-clock before the start of their shifts, resulting in unpaid overtime work. Servers and bartenders also worked – off-the-clock and without pay – to prepare food, the restaurant, and their individual work stations, resulting in minimum wage and overtime violations. The restaurant also failed to maintain accurate records of work hours for bartenders, servers, and line cooks.
“The off-the-clock work performed by Talula’s Garden employees resulted in clear violations of the Fair Labor Standards Act,” said another Department of Labor employee. The FLSA requires that covered, nonexempt employees be paid at least the minimum wage of $7.25 per hour for all hours worked, plus time-and-one-half their regular rates, including commissions, bonuses, and incentive pay, for hours worked beyond 40 per week. Employers also must maintain accurate time and payroll records.
Tipped employees at Mastro’s Steakhouse in Chicago sued the restaurant in Illinois state court, claiming that the restaurant illegally retained a portion of the tip pool, and failed to pay its servers the correct minimum wage.
Former Mastro’s busser Jose Murata brought the class action in Illinois State Court against Mastro’s, accusing the restaurant of violating Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act when it kept part of the pool of tips shared by its front of the house employees.
Attorneys for the severs claim that “the net effect of defendant’s policies and practices is that defendant willfully failed to pay the full amount of compensation earned and due to plaintiff and all other similarly situated employees,” and that “defendant thus enjoyed ill-gained profits at the expense of its hourly employees, including its Tip Credit Employees and Tip Pool Employees.” The class action lawsuit alleges that “in exchange for said labor, defendant was obligated to plaintiff and each member of putative … class the full amount of wages they earned, including tips. Defendant’s practice of operating an illegal tip pool and its improper taking of the Tip Credit has resulted in defendant’s Tip Credit Employees not being paid the full amount of minimum wages owed to them.” The lawsuit, claims that the restaurant was not allowed to take a tip credit because it failed to pay the proper amount of wages to its servers.
Restaurants cannot require servers to share their tips with non-service employees who do not customarily and regularly receive tips, such as dishwashers, cooks, chefs, janitors, and managers. Restaurants can require waiters to split their tips from customers with other front of the house employees who provide personal service to customers as a principal and regular part of their duties (such as bussers, bartenders, barbacks, food runners, captains who provide direct food service to customers, and hosts who greet and seat guests).
LA Louisanne, a popular Los Angeles restaurant and jazz night club, fired an employee because of her pregnancy, according to a discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC’s discrimination lawsuit, the restaurant cut a pregnant server’s hours after she announced she was pregnant and refused to let her return to work after she gave birth. The EEOC alleges that other employees at the restaurant have also been subject to discrimination because of their pregnancies.
Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC’s discrimination lawsuit seeks back pay, compensatory and punitive damages for the female employee and a class of similarly affected employees, as well as relief intended to prevent further discrimination at the restaurant.
Employment attorneys for the EEOC’s said, “employers should be cognizant of their obligations under the law to maintain a workplace free of discrimination against employees who are expectant mothers. Women should not have to choose between their job or having children. Employers need to be aware that the EEOC takes pregnancy discrimination seriously and the agency will continue to protect the rights of pregnant employees.”
Ruby Tuesday’s Times Square location was sued for wage theft by a former bartender, Amanda Zarfos, who alleges that the restaurant failed to pay tipped employees for all hours worked and violated the so called 80/20 rule.
The lawsuit, filed in New York federal court, claims that during her employment at Ruby Tuesdays, servers and bartenders at Ruby Tuesday were improperly paid at the tipped minimum wage rate for all hours worked even though they spent more than 20 percent of her shifts performing work that involved no customer interaction and did not generate tips. For example, Zarfos was required to brew beverages, cut lemons, bake bread, help pack to-go orders, and wipe wood. According to the Department of Labor’s Field Operations Handbook,
The FLSA permits the employer to take a tip credit for time spent in duties related to the tipped occupation of an employee, even though such duties, are not by themselves directed toward producing tips, provided such related duties are incidental to the regular duties of the tipped employees and are generally assigned to the tipped employee. For example, duties related to the tipped occupation may include a server who does preparatory or closing activities, rolls silverware and fills salt and pepper shakers while the restaurant is open, cleans and sets tables, makes coffee, and occasionally washes dishes or glasses. However, where the facts indicate that tipped employees spend a substantial amount of time (in excess of 20 percent of the hours worked in the tipped occupation in the workweek) performing such related duties, no tip credit may be taken for the time spent in those duties. All related duties count toward the 20 percent tolerance.
Similarly, the New York Labor law has an analogous prohibition covering non-tipped work exceeding 20 percent of a shift.
Attorneys for the restaurant workers also claim that tipped employees were required to work off-the-clock without pay. The lawsuit claims that employees were not allowed to clock in despite the restaurant knowing and expecting them to start working. Willful refusal to pay employees wages for off-the-clock work is a violation of the Fair Labor Standards Act and the New York Labor Law.
Renowned Long Island restaurant, Maroni Cuisine, has agreed to pay $110,000 to settle a lawsuit alleging that the restaurant did not pay a cook overtime pay, in violation of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). Maroni, notable for its exceptional meatballs, was voted the second best restaurant on Long Island by Zagat, and was also featured on “Throwdown with Bobby Flay.”
The cook who brought the lawsuit alleged that he was required to work approximately fifty-two hours per week, and was misclassified as an exempt employee and paid a weekly salary contrary to the Fair Labor Standards Act and the New York Labor Law. The FLSA and NYLL provide that only employees who fit within the administrative, executive, or professional exemption qualify as exempt from the overtime laws, and all other employees must be paid overtime pay for hours worked over forty.
Vivianna Morales, an attorney with Pechman Law Group, was the lead attorney on behalf of the worker at Maroni.
The New York Post reported on the growing trend of delivery worker lawsuits where food-delivery services are “stiffing” their workers to remain competitive. Louis Pechman, founder of waiterpay.com, was quoted in the article.
The U.S. Department of Labor and Sonic Drive In, the nation’s largest drive-in restaurant chain have signed a voluntary agreement to help Sonic’s 3,000+ drive in franchise locations comply with federal labor laws. Sonic has been one of a number of fast food restaurants that have been hit with wage theft lawsuits complaining that workers have had their time shaved, did not get overtime after 40 hours, and were required to work “off the clock.”
The Department of Labor announced, “We encourage other franchisors to follow Sonic’s example and take similar steps to benefit their franchises’ employees and owners by complying with the law… Abiding by the law makes better business sense than facing the prospect of paying back wages, damages, and penalties for violations of the Fair Labor Standards Act.”
The Department of Labor will provide easy-to-use compliance assistance tools designed for the franchise restaurant industry. The package will include video and online training, educational articles for use in internal company publications, and sample training materials for use in company staff meetings. The Department of Labor will also make representatives available to provide training and labor law compliance assistance to Sonic franchisees.
The Fair Labor Standards Act requires that fast food workers be paid at least the federal minimum wage of $7.25 per hour (note that New York has a higher minimum wage) as well as time-and-one-half their regular rates for every hour they work beyond 40 per week. Fast food restaurants and many chain restaurants have been sued recently for violating workers’ rights by failing to pay overtime and by forcing employees to work “off the clock.”