Today is National Waiters and Waitresses Day. To commemorate, check out this blog about the top ten wage violations in the restaurant industry written by waiterpay.com founder Louis Pechman, featured on the Huffington Post.
DC Court Of Appeals Rules That Culturally Acquired Knowledge Can Be Considered “Specialized Knowledge” For L-1b Work Visa
A chef was wrongfully denied a work visa by the U.S. Department of Homeland Security, according to a recent decision by the U.S. Court of Appeals for the D.C. Circuit. Fogo de Chao, a nationwide chain of Brazilian steakhouses, sued the Department of Homeland Security when a visa for one of its chefs, Rones Gasparetto, was denied. The restaurants feature chefs called churrasquieros or gaucho chefs, who come from a rural area in southern Brazil and specialize in traditional preparations of meats. The steakhouse, which also has restaurants across Brazil, typically trains chefs in Brazil before sending them to their restaurants in the United States.
In the past, the Department approved over 200 L-1B visa applications, which allow the transfer of foreign workers with specialized knowledge to the United States, for the steakhouse’s chefs. Here, however, the government said that the chef’s cultural knowledge and training were insufficient to qualify as “specialized knowledge” and denied the visa.
In its decision, the Court of Appeals held that the Department failed to articulate why the requirement of “specialized knowledge” barred knowledge acquired through cultural traditions, upbringing, or life experiences, and that the government did not, as it suggested, have a long history of holding as such. The court remanded the case for further consideration.
Restaurant Opportunities Center (ROC), a restaurant worker rights advocacy group has been accused of misconduct. In an opinion piece published in the New York Post, Mike Paranzing accused the ROC of being a labor union front that doesn’t practice what it preaches. Acccording to Paranzing, ROC exploited its own workers and cheated its employees at the restaurant Colors, and is guilty of the same labor abuses and health violations that it has leveled against other restaurants.
In an important decision supporting the rights of undocumented workers for protection under the labor laws, the Eleventh Circuit Court of Appeals ruled that undocumented aliens could recover overtime wages due to them under the Fair Labor Standards Act.
The court, in Lamonica v. Safe Hurricane Shutters, Inc., rejected the employer’s argument that two undocumented should be barred from a recovery because they did not accurately report their income to the IRS, used false social security numbers, and were not authorized to work in the United States. The Court explained that the award of unpaid wages does not condone the violation of the immigration laws that have occurred, it merely ensures that the employer does not take advantage of the violation by availing himself of the benefits of undocumented workers’ past labor without paying for it in accordance with minimum FLSA standards.
In an important worker rights decision, United States Magistrate Judge Ronald Ellis held that a worker at Da Ciro restaurant in New York did not have to return to New York from his home country of Ecuador to appear at a deposition or to appear in person for trial. Rather, the employee was permitted to have his deposition taken remotely.
Da Ciro restaurant argued that the worker’s lawsuit should be dismissed because he was unable to lawfully return to the United States because of his immigration status. The court pointed out, however, that the restaurant was aware of the employee’s undocumented status and therefore his departure to Ecuador should not have come as a surprise. Judge Ellis stated that Da Ciro should not be allowed to assert the employee’s immigration status as a defense to a FLSA claim, “particularly when the status was known at the time of employment.”
The court noted in its decision that restaurant owner Ciro Verde admitted to violating the law by failing to pay overtime and spread of hours pay and “admitted to paying undocumented employees less, precisely because of their immigration status.” Judge Ellis concluded:
The purpose of the FLSA is to prevent employers from benefitting from the illegal practice of underpaying employees or refusing to pay employees just compensation for earned wages. Failing to enforce the FLSA because the employer raises the immigration status of his employee as a defense to compensation allows the employer to effectively be immunized from its duty under the statue to pay earned wages, and would thereby be able to undercut law-abiding employers who hired lawful workers, as those workers would not be disabled from vindicating their FLSA rights.
The workers in this case were represented by Louis Pechman, founder of waiterpay.com, along with attorneys Jessica Tischler and Ellie Mercado.
After an immigration crackdown on Chipotle restaurants by Immigration and Customs Enforcement (ICE), Monty Moran, the head of Chipotle restaurants, has become an advocate of immigration overhaul, according to a recent article in the Wall Street Journal.
Chipotle Mexican Grill, the popular burrito restaurant chain, became a high-profile target in a move against the employers of illegal workers spurred by the Obama administration. Over 500 undocumented workers were found to be under Chipotle’s employment and were terminated. There was resulting pressure to quickly find qualified workers to replace them — a challenge in the wake of the immigration crackdown and the increasing rate of turnover the company faced. Chipotle views the immigrant workforce as a vital part of its success. The restaurant chain expects to hire 100,000 more workers in the upcoming three years. Other plans to expand and create more outlets are in the works. Among other reforms, Moran supports the proposal to grant legal status to workers from across the border.
The immigration status of undocumented workers is irrelevant to claims of unpaid overtime and illegal pay practices, according to the recent decision of Judge Paul Englemayer, a United States District Court Judge in New York.
In the case of Solis v. Cindy’s Total Care, Inc., Judge Englemayer stated: “In this case, an employee’s immigration status, or national origin, is clearly irrelevant to a claim for back pay for overtime wages under the FLSA. By its term, the FLSA applies to ‘any individual’ employed by an employer, as the term ‘employer’ or who are in this country illegally. For this reason, the courts to consider this issue have uniformly held that any person, regardless of his or her immigration status, who is employed by an employer, may pursue an action under the FLSA for work actually performed. Indeed, cases have held that employees’ immigration status or national origin is not even a suitable area for pretrial discovery.”