New York Daily News has reported that Wahlburgers, subject of the popular A&E reality show by the same name, is being sued by former employees for unpaid overtime and tip violations. The attorneys for the former restaurant workers in the case is Louis Pechman, founder of waiterpay.com and Mitchell Schley.
Wage and Hour
A U.S. Department of Labor Wage and Hour Division investigation found that Junior’s Supper Club, an Oklahoma City fine dining institution open since 1973, violated the minimum wage, overtime and recordkeeping provisions of the Fair Labor Standards Act (FLSA).
The Department of Labor (DOL) investigation revealed that Junior’s failed to combine hours worked by employees who performed more than one job duty at the restaurant (i.e., server and busser) during a workweek. As a result, the restaurant failed to recognize when these employees worked more than 40 hours in a week and did not pay them overtime as required by the FLSA. The DOL investigation also found that Junior’s illegally deducted time from worker’s pay when no work was available (i.e., no customers in restaurant), although employees were ready to serve. This resulted in minimum wage and overtime violations for the unpaid time. In addition, the DOL investigation disclosed that Junior’s did not keep accurate records of the total number of hours employees worked in a week, a recordkeeping violation under the FLSA.
In settlement of the wage theft claims, Junior’s paid a total of $52,487 to nine workers and agreed to keep accurate records and comply with all provisions of the FLSA in the future.
“Restaurant workers are among the most vulnerable workers we see in Oklahoma,” said a DOL representative. “If an employer requires workers to be ready to serve customers whenever they walk in, the employer must pay workers for the times when there may be no customers in the facility. These workers depend on every penny they rightfully earn; cheating them out of overtime has a tremendous impact on them and their families. The resolution of this case signals the division’s commitment to protecting restaurant workers, and leveling the playing field for employers who pay their workers legally.”
Les Halles, the French Bistro which was featured in Anthony Bourdain’s New York Times bestseller Kitchen Confidential, has been ordered by a Manhattan Federal Court to pay their waitstaff for wage theft violations under the Fair Labor Standards Act and New York Labor Law. The Court issued a default judgment for the waitstaff’s minimum wage and tip misappropriation claims. According to the Order, the former waitstaff at Les Halles will also be awarded damages for misappropriation of tips.
Les Halles closed it Park Avenue South doors in March after being open for nearly 25 years. The restaurant, owned by Philipe Lajaunie, had been in eviction proceedings with the building’s landlord since December 2015. According to the Order, the Court decided that in light of Les Halles’ deteriorating financial condition it did not want to run the risk that the former waitstaff would be left with a “toothless future judgement”.
The Department of Labor announced it signed a cooperative agreement with Subway, the world’s largest franchisor. The agreement boosts Subway’s compliance with labor laws, helping ensure that workers get paid the wages they are legally entitled.
The agreement with Subway breaks new ground in how the Department of Labor can work with the regulated community — not only with employers, but with franchisors, suppliers, retailers and others — to channel their influence to ensure that all employers along a supply chain or otherwise linked in commerce play by the rules. The agreement builds upon the Wage and Hour division’s ongoing work to provide technical assistance and training to Subway’s franchisees. It also provides an avenue for information-sharing where the Department of Labor will provide data about concluded investigations with Subway, and shares Subway’s data with the Department of Labor, generating creative problem solving and sparking new ideas to promote compliance.
When necessary, the franchisor will remind franchisees of the Wage and Hour Division’s authority to investigate their establishments and to examine records. The agreement also specifies that Subway may exercise its business judgment in dealing with a franchisee’s status within the brand, based upon any history of Fair Labor Standards Act violations. The agreement provides a model for exacting compliance, at scale, in an industry that has experienced problems.
The Department of Labor calls its collaboration with Subway a recipe for success, demonstrating how government and industry can work together to protect vulnerable workers and ensure a fair day’s pay for a fair day’s work.
On the 80/20 issue, the Court found that although some waiters and waitresses tasks may be performed by untipped staff at other restaurants, it does not make them unrelated to their server duties. The Court noted that “the possibility that a few minutes a day were devoted to keeping the restaurant tidy does not require the restaurants to pay the normal minimum wage rather than the tip credit rate for those minutes.”
On the tip credit issue, the Court analyzed the requirements of §203(m) and explained “workers are entitled to knowledge about the tip credit program but not to a comprehensive explanation.” The Seventh Circuit’s take on the requirements for notification of the tip credit was threefold: “Three things are apt to matter most to employees at establishments such as these defendants: (a) in anticipation of tips the employer will pay less than the minimum wage; (b) how much the cash wage will fall short of the current minimum wage; and (c) if tips plus the cash wage do not at least match the current minimum wage, the employer must make up the difference. We think that person told these things has been adequately “informed” for the purpose of the statute, during the time before the Department of Labor elaborated by regulation.”
Rosa Mexicano, the upscale Mexican restaurant chain, is being sued by its servers for stealing wages. Attorneys for the workers allege Rosa Mexicano failed to pay waitstaff minimum wage and overtime wages and misappropriated tips in violation of the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”).
According to the wage theft lawsuit, Rosa Mexicano claimed an invalid tip credit and improperly paid their waitstaff at a tipped minimum wage instead of the full minimum wage. The waitstaff claims in their lawsuit that Rosa Mexicano did not inform them they would be paid at tipped minimum wage and misappropriated their tips, violating the FLSA and NYLL. Tips were shared with “floaters”, who conducted miscellaneous tasks around the restaurant without ever having customer contact. According to the lawsuit, these “floaters” were not entitled to sharing in a tip pool, invalidating Rosa Mexicano’s tip credit.
The lawsuit claims that Rosa Mexicano did not pay waitstaff for hours worked over forty per week. Some former servers claim to work up to 50 hours per week without receiving overtime pay. The lawsuit also alleges that waitresses, waiters, bussers, and bartenders did not receive “call-in pay” required under NYLL, when they reported for work only to be sent home before being able to work three hours. One of the former workers claims this happened on 146 shifts.
Attorneys for the waitstaff seek to recover unpaid minimum wages, unpaid overtime wages, unpaid “call-in pay”, liquidated damages and attorneys’ fees. Rosa Mexicano has locations in New York, New Jersey, Los Angeles, San Francisco, Miami, Boston, Atlanta, Washington D.C., Baltimore, and Minneapolis. The workers are represented by Fitapelli & Schaffer, a New York law firm.
Twelve restaurant workers employed by Scales 925, a restaurant in Atlanta, Georgia owned by Clifford Harris – the famous rapper formerly known as T.I. – are suing the Atlanta restaurant for minimum and overtime wage violations of the Fair Labor Standards Act (“FLSA”). The wage theft lawsuit alleges that the waitstaff would routinely work more than 40 hours per week without being paid overtime and spent more than twenty percent of their time performing non-tipped tasks.
According to the lawsuit, waiters and waitresses were required to work off the clock for three hours before they were allowed to go home. The waitstaff complained to Scales 925 about not being paid overtime, but Scales 925 management ignored their complaints. In addition, the lawsuit claims the restaurant unlawfully deducted money from server’s paychecks for broken glasses, even if no glasses were broken. The restaurant also deducted money from servers’ paychecks supposedly to pay for busboys, which the busboys claimed they never received.
New Jersey Five Guys locations have been sued by former employees for overtime violations under the Fair Labor Standards Act (“FLSA”) and the New Jersey State Wage and Hour Law (“NJWHL”). The lawsuit alleges that workers were only being compensated for forty hours per week, without being compensated for the hours worked off the clock over forty in a workweek in violation of the FLSA and NJWHL.
The workers performed non-exempt restaurant labor duties for Five Guys, such as, serving customers, working the cash register, cleaning the grills, bussing tables, and all of the other duties necessary to run a restaurant. Thus, the workers were entitled to receive overtime compensation for all hours worked above forty in a workweek. The lawsuit also allege workers were required to work approximately one hour off the clock each day, for which they were not compensated at all.
Attorneys for the workers are seeking compensation for all hours due to them, overtime hours due to them for the hours worked for which they have not been properly compensated, liquidated damages, and reasonable attorneys’ fees.
California Buffet Restaurant To Pay $128k To Resolve Allegations Of Minimum Wage and Overtime Violations
A minimum wage and overtime lawsuit against Hibachi City Buffet was settled for $128,335. The U.S. District Court for the Central District of California approved a judgment ordering the Palm City, California restaurant and owners to pay 44 employees $90,000 in back wages, in addition to $38,335 in penalties. The court also prohibited Hibachi City Buffet from retaliating or taking any adverse employment action against any worker who exercises or asserts their rights under the Fair Labor Standards Act (“FLSA”).
Investigators from the U.S. Department of Labor’s Wage and Hour Division found that Hibachi City Buffet violated the minimum wage, overtime and recordkeeping provisions of the FLSA. They found the employees – cooks, dishwashers and servers – worked more than 60 hours per workweek on average, yet the employer paid a fixed salary, without regard to the number of hours employees worked. Minimum wage violations resulted when those salaries failed to cover all the hours employees worked at the federal minimum wage of $7.25 per hour. Overtime violations occurred when workers exceeded 40 hours in a week, yet the employer still paid workers only their fixed salaries. Hibachi City Buffet also failed to keep time records showing how many hours employee worked, or how much they paid employees, as the law requires.
“Vulnerable restaurant employees are often reluctant to complain when their employer fails to pay them the wages they’ve earned,” said Danny Pasquil, district director for the Department of Labor’s Wage and Hour Division in West Covina. “We urge all employees who are not paid legally to step forward. Cheating workers out of their hard-earned wages is illegal. As this consent judgment illustrates, we will continue to use every available tool, including asking the courts to step in, to ensure that workers receive a fair day’s pay for a fair day’s work.”
Las Margaritas, a Mexican restaurant in Astoria, was ordered to pay two former waitresses $41,618.08 for multiple wage violations under the Fair Labor Standard Act and New York Labor Law following a four-day trial and a jury verdict in favor of the waitresses. Magistrate Judge Cheryl Pollak upheld the jury’s verdict which found that the restaurant failed to pay waitresses minimum wage, overtime, and improperly applied a tip credit towards their wages. Las Margaritas also violated New York Labor Law by failing to pay the waitresses a uniform allowance of $9.00 per week as well as making deductions from the waitresses’ pay or making them pay out of pocket if the cash register was short.