Assistant Managers

Bojangles’ Assistant Managers Sue for Overtime

bojangles' overtime assistant managers

Two assistant managers who worked at a North Carolina Bojangles’ restaurant are suing the famous southern food chain for failing to pay them overtime.  The assistant managers argue that they were not actually managers and spent most of their time cleaning, taking orders, serving customers, and preparing, cooking, and packaging food.  Although they worked approximately fifty hours per week, Bojangles’ always paid the assistant managers the same set salary every week.

The law requires employers to pay employees overtime pay for hours worked over forty per week.  Overtime pay is equal to one and one-half (1.5) times an employee’s regular hourly rate of pay.  Employers can get in trouble with the law when they pay employees on a fixed weekly salary, because it does not cover overtime pay.

If several requirements are met, managers fall under an exception to the law and do not have to be paid overtime.  To fall under the exception, a restaurant “manager” must perform certain duties, such as directing the work of other employees, setting employees’ pay rates and work schedules, hiring and firing employees, and recommending the promotion or demotion of employees.  Managers should also have the power to act on behalf of the restaurant by, for example, ordering food on its behalf.  An employee who does not perform these duties and is simply called a “manager” or “assistant manager” does not fall under the exemption and must be paid overtime.  This is known as “misclassification.”

The Bojangles’ assistant managers claim that they were misclassified because they were paid a fixed weekly salary even though they did not perform the work duties of true managers.  Accordingly, they argue that Bojangles’ owes them and 400 other assistant managers unpaid overtime wages.  The lawsuit is pending in federal court in North Carolina.

 

IHOP Assistant Manager Received $40,000 Settlement for Overtime Claims

ihop assistant manager overtime pay lawsuit

An IHOP franchisee restaurant on Staten Island, New York will pay $40,000 to a former assistant manager to settle a lawsuit for unpaid overtime wages.  The assistant manager claimed that IHOP failed to pay her overtime wages for hours worked over forty per workweek.  This lawsuit continues a recent trend of restaurant workers alleging misclassification as Assistant Managers so they would be “exempt” from the FLSA requirement to receive overtime pay at time and a half for hours worked over forty in a workweek.

Only a limited number of employees in restaurants are “exempt” from the requirement of overtime pay under the federal Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL).  In order to qualify as an “exempt” under these laws, a restaurant worker has to fit within the administrative, executive, or professional exemption.  So, if a restaurant is paying a cook, maître’d, bookkeeper, host, or other non-management employee a salary for a workweek in excess of 40 hours, it is unlawfully failing to pay the employee overtime — regardless of how much the employee is paid.

The assistant manager was represented by Gianfranco Cuadra, an attorney at Pechman Law Group.  Congratulations to Franco on a successful litigation and negotiation of an excellent settlement.

 

 

EEOC Sues Ruby Tuesday For Age Discrimination

Ruby Tuesday EEOC age discrimination

Ruby Tuesday, a national casual dining restaurant chain, violated federal law by refusing to hire a qualified applicant at its Boca Raton, Fla., location because of his age, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed in federal court in Florida.

According to the EEOC’s lawsuit, the restaurant declined to hire a qualified applicant with over 20 years of experience in the food and beverage industry for a general manager position at its Boca Raton restaurant. In response to an inquiry by the applicant as to why Ruby Tuesday declined to hire him, the company informed him it was seeking a candidate who could “maximize longevity.”  According to the lawsuit, the applicant was 59 when he applied for the job, and the individual who got the job was 17 years younger.  Attorneys for the EEOC contend that the failure to hire the applicant violated the Age Discrimination in Employment Act.

A spokesman for the EEOC said, “Age cannot be a factor in whether or not someone can earn a living.  The Age Discrimination in Employment Act was put in place precisely to protect people against this type of conduct. The bustling hospitality industry needs to be reflective of all of the members of our community.”

In 2013, Ruby Tuesday paid $575,000 to resolve another age discrimination lawsuit brought by the EEOC on behalf of older restaurant workers in Western Pennsylvania and Ohio.

Denny’s Restaurants Cheated Assistant Managers out of Overtime Wages According to New York lawsuit

Denny's overtime New York assistant managers

Denny’s restaurants paid Assistant Managers on a salary to avoid paying them overtime, according to a lawsuit filed in New York federal court. An Assistant Manager in Horseheads, New York alleges he worked 50 to 70 hours per week on average, but was not paid overtime compensation at time- and-a-half his regular hourly rate for all hours worked over 40 each week.  Instead, he says Denny’s paid Assistant Managers an annual salary regardless of the number of hours worked.

The lawsuit is directed at franchise FEAST American Diners LLC, which operates 17 Denny’s restaurants in New York.  Attorneys for the Assistant Manager claim that Assistant Managers at Denny’s had primary job duties that included preparing food, helping customers, bussing tables, cleaning the restaurant, labelling and rotating food product, and checking inventory.  The lawsuit alleges that the Assistant Managers did not exercise the responsibilities of a manager or use independent judgment and discretion in running the restaurants, as they did not hire, fire, discipline, or direct the work of other Denny’s employees.

The lawsuit claims that Denny’s restaurants did not provide labor budgets with enough money to cover all hours needed to complete the necessary manual labor tasks.  As a result, they contend Denny’s had knowledge that this underfunding led to Assistant Managers working more than 40 hours per week while mainly performing the overtime-eligible work tasks described above.  The lawsuit also alleges Denny’s failed to keep accurate time records, does not record all hours worked by Assistant Managers, and failed to post a notice explaining the minimum wage and overtime wage requirements anywhere in the restaurants.

This lawsuit continues a recent trend of restaurant workers alleging misclassification as Assistant Managers so they would be “exempt” from the FLSA requirement to receive overtime pay at time and a half for hours worked over forty in a workweek.  Other restaurants hit with lawsuits claiming Assistant Managers were paid a salary to avoid overtime pay include Cracker Barrel, Dunkin Donuts, Chipotle, Jack in the Box, and Jimmy John’s.

 

Opening A Restaurant in New York: Legal Issue Boot Camp

New York City Bar Association Logo

The New York City Bar Association will hold the CLE program “Opening A Restaurant in New York: Legal Issue Boot Camp” on March 24. The program will focus on the corporate, real estate, liquor license, and labor/employment issues involved in opening a restaurant in New York City. Speakers on the panel include Jack Gordon, partner at Kent, Beatty & Gordon LLP; Carolyn Richmond, partner at Fox Rothschild LLP; Sonal Shah, General Counsel of Ark Restaurant Group; Alex Victor, partner at Davidoff, Hutcher & Citron LLP; and Larry A. Welch, Associate at Golenbock Eiseman Assor Bell & Peskoe LLP.  Lou Pechman will be chairing the event. For more information on the program please visit the event page.

Golden Corral Sued By Assistant Managers For Overtime Pay

Golden Corral logo

Golden Corral restaurants throughout the United States misclassified “Kitchen Associate Managers,” and “Hospitality Managers,” as employees exempt from overtime, failing to pay them any overtime wages for hours they worked over forty in a given workweek. According to the restaurant workers, Golden Corral refused to pay them overtime in spite of the fact that they spent the majority of their time performing the same duties that non-exempt restaurant employees performed, including cooking and preparing food, taking out trash, washing dishware and glassware, refilling food on the buffet line, unpacking products and supplies, cleaning the restaurant, and serving customers. The lawsuit claims that Golden Corral applied the same compensation and employment policies to Assistant Managers at 94 restaurants across the country.

The workers also claim that Golden Corral willfully misclassified them as exempt workers ineligible for overtime pay, and was aware that Associate Managers across the country worked more than 40 hours a week without overtime compensation. The lawsuit alleges that Golden Corral failed to record all of the time that its employees worked and purposefully did not require workers to clock in or out or otherwise record their time in any way. Further, the Assistant Managers’ work hours were not recorded on their paystubs.

Restaurant Workers Get 2017 Pay Hike

back of house cooks

On December 31, 2016, restaurant workers throughout New York State will begin to see changes in the payment structure of their wages.
Back of the House Workers

 

Back of the house workers (cooks, dishwashers, stockers, and others without direct customer contact) will receive an increase from the current minimum wage rate of $9.00/hour beginning December 31, 2016, according to the following specifications:

New York City – Large Employers (with 11 or more employees): $11.00
New York City – Small Employers (with 10 or fewer employees): $10.50
Long Island & Westchester: $10.00
Remainder of New York State: $9.70

 

Front of the House Workers

 

New York State law allows employers in all industries, except building service and fast food, to satisfy payment of the minimum wage by combining a “cash wage” paid by the employer with a credit or allowance for tips that the employee receives from customers. For example, employers in the Hospitality Industry could satisfy the 2016 minimum wage of $9.00 by combining a cash wage of at least $7.50 with a tip allowance of no less than $1.50 per hour. Employers need only pay a cash wage of $7.50/hour to workers, so long as the employees receive at least $1.50/hour from customers in tips.

 

Beginning on December 31, 2016, tipped front of the house restaurant workers (servers, bussers, bartenders, hosts, hostesses, and others with direct customer contact) will still be required to receive the same 2016 minimum hourly wage rate of $7.50/hour from their employers. However, as of December 31, 2016, tipped restaurant workers must receive at least the following amount in tips per hour in order for employers to use the tip credit:

 

New York City – Large Employers (with 11 or more employees): $3.50
New York City – Small Employers (with 10 or fewer employees): $3.00
Long Island & Westchester: $2.50
Remainder of New York State: $2.20

 


Fast Food Workers

 

Additionally, restaurant workers in the fast food industry will see an increase in hourly wage rates. Employees who qualify for this increase include any person working at a fast food establishment whose job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.

 

On December 31, 2016, the minimum hourly wage rates for all fast food workers will increase according to the following specifications:

 

New York City: $12.00
Rest of the State: $10.75

 

For more information about your rights as a restaurant worker, take a look at our Top 10 Restaurant Pay Violations.

Jack in the Box Allegedly Misclassifies Managers To Avoid Overtime Pay

jack in the Box Logo

Jack in the Box has misclassified its store managers as overtime ineligible in order to cut its overtime pay obligations, according to a lawsuit filed in California federal court. The lawsuit claims that Jack in the Box, through a central business policy, requires its store managers to cover many work tasks of their subordinate employees. These assignments include working the drive-thru and the fryer, preparing food, cleaning up, and unloading products, as well as other like jobs. The store managers claim that despite performing these overtime pay eligible tasks, Jack in the Box mischaracterized them as ineligible for OT pay and has not paid them what they are owed. The lawsuit alleges that as result of this system, store managers were also regularly prevented from taking meal and rest breaks because they were assigned too much work and given no relief.

Jack in the Box allegedly paid its store managers a fixed salary amount that ultimately ended up being less than the minimum wage. Further, the store managers claim they were denied overtime pay although they “regularly” worked more than eight hours in a day or 40 hours in a workweek. They also claim that Jack in the Box did not reimburse them expenses for necessary travel costs in moving products between restaurants, and that they are not paid their fully owed wages upon the termination of their employment.

Assistant Managers Sue Ruby Tuesday for Overtime Wages

ruby tuesday logo

Former assistant managers at Ruby Tuesday restaurants filed a lawsuit claiming that the restaurant chain purposefully misclassified Kitchen Managers, Culinary Managers, Guest Services Managers, Front-of-House Managers, and Back-of-the-House Managers as exempt employees to avoid paying them overtime required by the Fair Labor Standard Act (FLSA).

Although the assistant managers primarily performed tasks similar to those performed by non-exempt employees, such as preparing food, serving customers, and cleaning the restaurant, Ruby Tuesday classified them as “executives” to exempt them from overtime requirements under federal and state laws.

In the lawsuit filed by the restaurant workers’ attorneys in Connecticut federal court, it is claimed that Ruby Tuesday did not pay their assistant managers premium overtime compensation when they worked beyond forty hours in a workweek. Assistant managers were consistently required to work more than forty hours per week and were earning as little as $37,500 per year. The two assistant managers that brought the lawsuit claim that they worked between fifty-five and sixty-two hours per week.

Lawyers for the workers also claim that their rights were violated because Ruby Tuesday was not keeping accurate time records for employee work hours. The assistant managers were not required to clock in or out, or otherwise record their time; neither was their work hours recorded on paystubs.

Happy National Waiters and Waitresses Day!

old school waiter photo

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.

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