U.S. Equal Employment Opportunity Commission

Dunkin’ Donuts Charged With Sexual Harassment and Retaliation


A Dunkin Donuts store manager tormented young female staff and terminated a worker who opposed sexual harassment according to a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

The sex harassment and retaliation lawsuit claims that a franchisee of Dunkin’ Donuts with multiple stores and one office/kitchen in Westchester County, N.Y., subjected young female workers to sexual harassment by a manager since at least 2011. The lawsuit charged the company with unlawfully firing a female worker for opposing the sexual harassment and calling the police. According to EEOC’s suit against Hillcrest Marshall, Inc., the store manager’s harassment included making sexual comments and propositions, such as saying almost daily that he wanted to have a “threesome” with the women, many of whom were in their teens. The manager talked about his genitals, tried to kiss a female worker, and pressured a female worker to have sex. Frustrated with one worker’s rejection of his sexual advances, the manager smacked her face, cursed and yelled at her regularly and sent her home several times in the middle of her shift. When she contacted the police, she was fired.

Under Title VII of the Civil Rights Act of 1964, employers may not subject employees to a hostile work environment because of sex and cannot retaliate against employees for resisting or making complaints. The lawsuit seeks monetary relief for the affected workers, as well as relief meant to remedy and prevent future harassment or retaliation at the company. In his comments about the sex harassment lawsuit New York District Director Kevin Berry stated, “It took a great deal of courage for these young women to come forward and speak up against the manager who had power over their livelihood. Employers need to implement strong policies so that victims can report sexual harassment without reprisal.” The EEOC trial attorney assigned to the case added that, “Targeting teenaged female workers is especially inexcusable. Our most vulnerable workers must be protected against sexual advances at work.”

Happy National Waiters and Waitresses Day!


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.

Seasons 52 Restaurants Hit With Age Discrimination Lawsuit

seasons 52

Seasons 52, a national restaurant chain and one of the Darden restaurant brands, engaged in a nationwide pattern or practice of age discrimination in hiring hourly employees, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed in Miami federal court.

The EEOC’s lawsuit alleges that since at least 2010, Seasons 52 has been discriminating against a class of applicants for both “front of the house” and “back of the house” positions, such as servers, hosts and bartenders, by failing to hire them because of their age (40 years and older) when opening new restaurants.

According to the lawsuit, various Seasons 52 management hiring officials would travel to new restaurant openings to oversee their staffing. Older, unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including “too experienced,” the restaurant’s desire for a youthful image, looking for “fresh” employees, and telling applicants that Seasons 52 “wasn’t looking for old white guys.”


Five Tips To Avoid Restaurant Pay Lawsuits


In handling over 100 restaurant pay lawsuits, I have seen common themes play out, whether that restaurant is a mom and pop take out place or a high end fine dining establishment. From the perspective of someone who has collected millions of dollars for restaurant workers across the United States, here are my top five tips to avoid wage theft lawsuits.

1. Tips Are the Property of Servers

From the management point of view, think of tips as kryptonite – stay away. It is not your money. Many of the lawsuits against restaurants arise from management dipping into gratuities left by customers for their servers. Tips are not house money. Owners need to make sure that tips are only shared with waiters, waitresses, bussers, runners, and other front of the house workers who deal with customers. And, managers need to stay out of the tip pool as well. The temptation to dip into the tips of servers – some of whom may be making a six-figure income – often times is irresistible for an owner. Taking 5% off of the pool, sharing tips with the kitchen, putting a manager in the tip pool, and having servers kick in cash every shift for a dishwasher to scrape plates, are all examples of skimming of tips that have resulted in lawsuits. Keep in mind that the penalties for skimming tips are severe, as the restaurant may have to disgorge the tips, lose the tip credit, and be subject to liquidated damages.

2. Paying Salary or Shift Pay = Lawsuits

Unfortunately, there is a common misconception that if you pay an employee on a salary, you don’t have to pay overtime. This can be a catastrophic mistake. The fact is that only a limited amount of employees in restaurants are “exempt” from the requirement of overtime under the federal Fair Labor Standards Act (FLSA) and the New York Labor Law. In order to qualify as an “exempt” job under these laws, a restaurant worker has to fit within the administrative, executive, or professional exemption. So, if you are paying your cook, maître’d, bookkeeper, host or other non-management employee a salary for a workweek in excess of 40 hours, you are unlawfully failing to pay them overtime — regardless of how much they are paid. Likewise, regardless of how much you pay an employee for shift pay, if that employee works more than 40 hours per week, the restaurant has broken the law by not paying him or her time and one-half for all hours worked over forty.

3. Keep Track of Work Hours

Restaurant pay lawsuits usually involve some sharply contested claim that employees are not paid for all hours worked. Do the kitchen workers take a break between lunch and dinner rush? Do waiters clean up for a half hour after they close out of the POS system? What is the start time, stop time, break time, lunch time? If a restaurant is not keeping track of hours worked by employees in either the front of the house or the back of the house, then it risks claims for unpaid hours. Both the FLSA and the New York Labor Law require employers to keep time and pay records of their employees. In this regard, it is important to note that in the Mt. Clemens case the Supreme Court held that where the employer keeps inadequate records, there is a presumption that the employee’s recollection of hours worked should be believed.

4. Know Your Restaurant Pay Math

Many restaurants get caught up in “gotcha” violations because they do not keep track of the specific wage rates for their workers. Here is a checklist for current restaurant pay requirements in New York

o Minimum Wage for non-tipped employees, including back of the house, is $8.75 per hour and $13.13 per hour for overtime hours.

o Tipped Minimum Wage for front of the house is $5.00 per hour and the tip credit is $3.75. The overtime rate for front of the house is $9.38 per hour. (You can only take the tip credit once).

o Tipped Minimum Wage for delivery workers is $5.65 and the tip credit is $3.10. The overtime rate for delivery workers making tipped minimum wage is $10.03 per hour.

o Uniform Maintenance for workers that work over 30 hours a week is $10.90; 20 -30 hours a week is $8.60; and less than 20 hours a week is $5.20.

o Meal Credits for front of the house and delivery workers is $2.50 and for back of the house workers is $3.00.

o Restaurants may deduct the cost of converting a tip left on a credit card to cash, but only may deduct the pro-rated share of the charge levied by the credit card company.

o All restaurant employees that work a spread of hours that exceed 10 hours on any day must receive an additional $8.75 in spread of hours pay.

5. Respect, Respect, Respect

A large portion of workers who sue their boss for wage pay violations visit an attorney because they believe they were the victims of an unlawful termination or wrongful discharge. Although that claim is generally DOA because employees in New York are “at will,” the inquiry leads to the follow-up question of “But how were you paid?” If that worker was paid incorrectly, and the employee believes he has been mistreated, a lawsuit will follow. However, there are many occasions where employees with excellent claims for back pay do not want to sue because the owner always treated them with respect and they believe they were paid fairly, albeit incorrectly. On the other hand we have seen lawsuits where some of the highest paid servers in New York have sued because they were treated disrespectfully, called names, and talked to in a demeaning manner. Restaurant owners in New York are right to believe they are under siege, but it is a misconception that every employee has a goal to bring a public lawsuit. Sometimes, treating employees with respect can make the difference in whether your cook or waiter has the word “plaintiff” before his name.



*These comments were prepared for the New York City Hospitality Alliance program on February 2, 2015, Have We Reached the Tipping Point for Tips?

Discrimination Lawsuit Filed Against Restaurant That Fired Waitress Because "Baby Was At Risk"


A cocktail waitress was terminated because she was pregnant, according to a lawsuit filed against Arthur’s Restaurant and Bar, located in Addison, Texas.  The lawsuit, which was filed by the Equal Employment Opportunity Commission (EEOC), claimed that soon after waitress Jennifer Todd informed her supervisors that she was pregnant, one of her supervisors commented that she was “beginning to show.” The EEOC’s investigation revealed that Todd was then forced to take early maternity leave and was never again assigned a shift at Arthur’s. The company claimed that her “baby’s health was at risk” because Arthur’s is a smoking establishment.

The alleged conduct of the restaurant violates Title VII of the Civil Rights Act of 1964.  EEOC attorneys are seeking lost wages, front pay, compensatory damages, punitive damages, and emotional distress damages. The EEOC is also seeking policy changes at Arthur’s to prevent and appropriately address future instances of sex and pregnancy discrimination.

Señor Frog’s to Pay $350,000 to Settle Sexual Harassment Lawsuit


Señor Frog’s, a popular Mexican-themed restaurant and bar in Honolulu, will pay $350,000 to settle a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of 13 female employees who were allegedly sexually harassed or retaliated against for complaining about the sexual harassment.

The Complaint filed by the EEOC at least 10 female staffers were sexually harassed by several male employees, including managers. The EEOC alleged that the managers subjected employees to sexual comments, language and advances, and unwelcome physical contact. The agency further alleged that some employees were subjected to retaliation after complaining about the alleged harassment. The EEOC also alleged that the women were also treated less favorably than men in the workplace: they were passed over for promotions, assigned less favorable shifts, and earned less than their male counterparts.

As part of the settlement the parties entered into a three-year consent decree requiring the restaurant to pay $350,000 to 13 female claimants. Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, which includes Hawaii in its jurisdiction stated, “Employers who fail to fulfill their moral and legal obligation to prevent and immediately stop the sexual abuse of its young workers will answer to the EEOC.” She added,  “Our young workers are all too often the targets of the most insidious forms of sexual harassment, which can spread like wildfire at work.”

Timothy Riera, local director for the EEOC’s Honolulu Local Office, stated, “The EEOC takes workplace harassment against young workers very seriously. Through our Youth@Work outreach, we aim to educate America’s next generation of workers on their right to work in an environment free of harassment and discrimination and their right to report such abuses without retaliation.”

The EEOC recently updated its Youth@Work website (at http://www.eeoc.gov/youth/), which presents information for teens and other young workers about employment discrimination. The website also contains curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities in the workforce. Preventing workplace harassment through systemic litigation and investigation is one of the six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

Baltimore Italian Restaurants Sued For Sex Harassment by EEOC


Italian restaurants Basta Pasta in Maryland have been sued for sexual harassment and retaliation.  According to the federal court lawsuit filed the by the U.S. Equal Employment Opportunity Commission against the Maryland restaurants, the owner repeatedly harassed his female workers, some of whom were teenagers, by touching them on their buttocks, lower backs and shoulders, rubbing his genitalia against their buttocks, leering at them and making comments about their bodies, including calling them “sexy” or “hot,” making sexually suggestive remarks and crude sexual innuendos, and asking for massages.

The lawsuit also claims that the owner of the restaurants pressured female employees to have alcoholic drinks at the end of their shifts and, in one instance, gave one female employee so much alcohol that she passed out and later vomited, causing the worker to believe that the owner drugged her in an attempt to sexually assault her.  The complaint also alleges that in another instance the owner took another female employee to his house purportedly to talk about a management opportunity.  Instead the worker believes she was drugged and sexually assaulted by the restaurant owner. Two workers claim that the sexual harassment was so unbearable that they quit their jobs.

Attorneys for the EEOC claim that the company failed to take corrective measures after the restaurant manager complained about the owner’s sexually offensive behavior and eventually fired her in retaliation for complaining about the sexual harassment.  According to the lawsuit, the restaurant also threatened the manager when she participated in the EEOC investigation and pressured her to recant her testimony.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and forbids employers from retaliating against employees who make complaints about sexual harassment or discrimination.  The EEOC is seeking, among other things, injunctive relief prohibiting Basta Pasta from engaging in sexual harassment or retaliation, as well as lost wages and compensatory and punitive damages.

Restaurants May Be Liable For False Criminal Case Against Employee Who Filed Overtime Claim


Filing false charges against an employee who filed an overtime lawsuit may subject a New York restaurant group to a claim for intentional or negligent infliction of emotional distress, according to a recent Decision (PDF) by New York federal court Judge Paul Crotty.

Gilbert Carandang worked as a bookkeeper for the restaurant group, that owns Flex Mussels and Zócalo restaurants in New York. Robert Shapiro, a co-owner of the restaurants, fired Carandang in 2011. Shapiro threatened the bookkeeper with jail time if he filed an overtime lawsuit against the restaurants. Despite the threat, Carandang filed an EEOC charge and unpaid wages lawsuit against Shapiro.  Carandang alleged that he had been paid incorrectly for overtime, and that the restaurants manipulated their books to eliminate hours worked by their restaurant employees, manipulating their overtime as well.

Shapiro made good on his retaliatory threat by filing a false criminal complaint against his former bookkeeper. Shapiro falsely accused Carandang of stealing funds from the restaurant.  This false complaint led to Carandang’s arrest, his spending six days in jail, and the police searching his home. Judge Crotty found Shapiro’s retaliation tactics “extreme,” “outrageous” and “beyond the pale.”  Judge Crotty refused to grant Shapiro’s motion to dismiss, and held that he could be found liable for intentional or negligent infliction of emotional distress.

Lawsuit Filed Against Bojangles Restuarant for Firing Muslim Who Refused to Cut His Beard


A Bojangles’ restaurant violated the discrimination laws when it failed to accommodate a Muslim employee’s religious beliefs and then fired him because of his religion, according to a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).

According to the EEOC’s discrimination lawsuit, Devin Charles has been a practicing Muslim for the past 14 years. As a male Muslim member of his sect of the Sunni branch of the Islamic faith, Charles is required to grow and maintain a beard and is not allowed to trim or cut his beard unless it exceeds the length of his fist when holding his beard in his closed hand under his chin, commonly referred to as “fist length.” In accordance with his sincerely held religious beliefs, Charles has not trimmed or cut his beard unless it exceeded a fist length.

Attorneys for the EEOC claimed in the lawsuit that Charles applied for a job with a Bojangles’ restaurant in Charlotte, North Carolina and on May 17, 2012, he was interviewed by a Bojangles’ restaurant manager for a food prep position. After the interview, the manager of the restaurant informed Charles that he might need to cut his beard, to which Charles responded that he could not cut his beard for religious reasons, informing her that he was a Muslim. Charles was hired and worked at the restaurant on May 18 without incident.

However, on the following day, the manager instructed Charles that her supervisor, the district manager, had come to the restaurant, seen Charles’ beard and instructed her to tell Charles that he needed to shave off his beard to continue working for Bojangles’. Charles reminded the manager that he could not cut his beard because of his religion, and requested an accommodation of wearing a beard net, similar to a hair net, which the restaurant manager refused. The restaurant manager told Charles to leave the restaurant, and to not return to work until he shaved off his beard. Charles refused to shave his beard and was consequently fired, the EEOC said.

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for the sincerely held religious beliefs of employees as long as doing so does not pose an undue hardship on the employer.

Burger King Sex Harassment Lawsuit Settles for $2.5 Million


The world’s largest Burger King franchisee, Carols Corporation, will pay $2.5 million and take significant remedial steps to settle a sexual harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit alleged discrimination against 89 female employees around the country, many of whom were teenagers when they worked for Burger King.

The EEOC’s lawsuit charged that Carrols Corporation, which operates nearly 600 Burger King restaurants in the United States, subjected a class of women to egregious sexual harassment at Burger King locations throughout the Midwest, Southeast, and Northeast. The EEOC alleged that the harassment, which ranged from obscene comments, jokes, and propositions to unwanted touching, exposure of genitalia, strip searches, stalking, and even rape, was perpetrated by managers in the majority of cases. According to the EEOC, Carrols also retaliated against some of the women by cutting their hours, manufacturing discipline against them, and even firing them, while it forced more women to quit because the harassment made their working conditions intolerable.

Under the terms of the consent decree resolving the case, Carrols will pay $2.5 million in compensatory damages and lost wages to the 89 victims. It also will implement a number of measures to increase employees’ awareness of Carrols’ anti-harassment policies and to improve Carrols’ response to complaints brought forward under those policies. Those measures include enhanced training for Carrols’ managers in preventing and responding to harassment, improved mechanisms for tracking harassment complaints, notices posted in all domestic Carrols Burger King locations informing employees about the lawsuit’s resolution and their rights under federal anti-discrimination laws, and an injunction prohibiting further harassment and retaliation.

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