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.
A jury’s award of $105,000 in a sexual harassment lawsuit brought by two waitresses at Racine, Wisconsin IHOP was affirmed by a federal court judge. The women, both in their teens, alleged that their assistant manager made sexually-charged comments, and engaged in inappropriate and unwelcome touching. On one occasion, the manager “slap groped” a waitress on her buttocks and asked her to have sex with him “on the pancake batter.” On another, he told one of the waitresses that he thought she was “kinky” and that she liked “to do it rough.” The waitresses brought these incidents to the attention of two other managers, but no action was taken. When one manager was asked at the trial why no corrective action was taken, he stated that he did not believe the behavior constituted sexual harassment.
Judge Adelman’s August 31, 2010 decision underscored that it is unlawful for any employer who knows or should know about ongoing harassment to fail to take corrective action. In addition to paying the waitresses $105,000, the restaurant was also required to create a new sexual harassment training program, post a toll-free number so employees can make complaints, and report to the EEOC any complaints of harassment for the next four years.