A former sous chef at a Kona Grill location in Florida claims the restaurant purposefully misclassified him to avoid paying him overtime wages, in violation of the Fair Labor Standards Act (FLSA). The sous chef alleges Kona Grill, which operates 45 restaurants in 23 states and Puerto Rico, intentionally misclassified all its sous chefs, as well as assistant general managers, and assistant managers as exempt and not entitled to overtime wages at time- and-a-half their regular hourly rate for all hours worked over forty each week.
Attorneys for the sous chef say he worked, on average, 55 to 60 hours per week, and some weeks would work more than 60 hours. He claims Kona Grill paid him a set salary each week regardless of the number of hours he actually worked, which he says was done on purpose in order to avoid paying overtime pay. The FLSA provides that employees are entitled to time and a half for every hour they work over 40 a week. Employees employed in an executive capacity are exempt from overtime pay under U.S. Department of Labor Regulations. An “executive” employee is:
- compensated on a salary basis at a rate of not less than $455 per week (in New York City, $825 per week);
- has a primary duty of management of the enterprise in which the employee is employed;
- customarily and regularly directs the work or two or more other employees; and
- has the authority to hire, fire, or promote other employees.
According to attorneys for the sous chef, the misclassified restaurant workers had primary work duties including cooking, cleaning, preparing food and stocking food, and other forms of manual labor. They also claim the workers did not supervise other employees and never had any authority to hire or fire other employees. Other restaurants which have allegedly cheated sous chefs out of overtime pay by misclassifying them a managers include P.F. Chang’s, Serafina, and 9021Pho Restaurants in California.
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.
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.
The Fair Labor Standards Act (“FLSA”), which was signed into law by Franklin Delano Roosevelt on June 25, 1938 outlawed “oppressive child labor,” imposed a federal minimum wage of 25 cents per hour, and required overtime for hours worked over 40 in a week. But the America we live in is far different from that which existed 75 years ago and both employee advocates and company executives have raised serious questions as to how well the FLSA is currently working. Read the full article written Louis Pechman, founder of waiterpay.com, on The Huffington Post.
Sous Chefs who worked in the kitchen at restaurants owned by China Grill Management, including Ed’s Chowder House, Empire Hotel Rooftop, and China Grill, have sued the restaurants for denial of overtime compensation required by federal and state wage and hour laws.
The employees allege in their Class Action Complaint, filed in New York federal court, that they were not paid an overtime premium for all hours worked over 40 in a given work week. The workers claim they were misclassified as exempt from the Fair Labor Standards Act (FLSA), which requires each covered employer to compensate all non-exempt employees at a rate of at least one and one-half times the regular rate of pay for work performed in excess of forty hours per work week.
The sous chefs seek unpaid overtime wages, liquidated damages, and attorneys’ fees and costs. Under the FLSA, kitchen workers and cooks are generally entitled to overtime unless they are salaried employees who fall into an administrative, professional, or executive exemption from the law.