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.
A Turkish bakery’s attempts to exclude its bakery workers from the protections of the Fair Labor Standards Act (“FLSA”) was rejected by Magistrate Judge Ramon Reyes. The workers in the lawsuit, filed by Pechman Law Group, made and served Turkish treats at Gulluoglu Baklava & Cafe locations in Brighton Beach and Astoria. Gulluoglu is well-known throughout Turkey for its baked goods. Although formally trained to make pastry and baklava, these bakers allege making little from scratch. They baked bread, served coffee, and performed other non-skilled tasks, but most of their work consisted of adding finishing touches to reheated baklava and cakes imported from abroad. Gulluoglu paid the bakers a fixed weekly salary, which the workers assert did not properly compensate hours worked over forty in a week. The bakers sued to recover unpaid overtime pay, as well as spread-of-hours pay as required under New York Labor Law.
Gulluoglu attempted to have the case dismissed by arguing that the bakers were creative professionals and therefore exempt from the FLSA’s overtime provisions. The creative professionals exemption specifically requires that an employee’s primary duty involve “invention, imagination, originality or talent.” In his Report to the district judge, Judge Reyes found that by reheating baklava and frosting pre-made cakes, the bakers did not use any of the creativity or originality envisioned by the exemption. Applying it here, the judge said, would “extend it to virtually every chef save those who work with pre-made food.” Even assuming that the exemption applied because the chefs made bread from scratch, Judge Reyes found no evidence that bread-making was their primary duty. Absent this evidence, the magistrate judge concluded that Gulluoglu had not proven any of their defenses.
Judge Reyes’s recommendation not to apply the exemption and allow the bakers to present their wage claims will be reviewed by the United States District Court Judge Dora L. Irizarry.