Sous Chef Lawsuit Claims Pay By Salary Unlawfully Denied Him Overtime Pay

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.