Spread of Hours

Moonstruck Diner Case Update

On October 2, 2013, Fitapelli & Schaffer, LLP filed a lawsuit alleging that Defendants Moonstruck Diners failed to pay non-exempt workers the proper minimum wage rate, overtime pay and spread-of-hours pay as required under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law.

On July 2, 2014 the Court granted Plaintiff’s Motion for an Order Granting Class Certification, Court Authorization and Expedited Discovery pursuant to 29 U.S.C. § 216(b) and denied Defendants’ Cross-Motion for Judgment on the Pleadings pursuant to Fed. R. Civ. P. 12(c). Juarez v. 449 Rest., Inc., No. 13-cv-06977 (S.D.N.Y. July 2, 2014), ECF. No. 33.

The named Defendants include three Moonstruck Diner locations – 449 Restaurant, Inc., 88 2nd Ave. Food Corp., and Pirgos Food Corp. Defendant moved for judgment on the pleadings as to Plaintiff’s claims against 88 2nd Ave. Food Corp. and Pirgos Food Corp. contending that those claims should be dismissed for failure to state a claim on which relief can be granted as Plaintiff has not alleged that he ever worked more than 40 hours in any week at those two locations and therefore has not adequately pled that those locations violated the FLSA overtime provisions. The court rejected this argument, adopting the “single integrated enterprise” test pursuant to Plaintiff’s request. The court held that Plaintiff sufficiently pled facts that indicate that the three locations operated as a single integrated enterprise, thus qualifying as a single statutory “employer” under the FLSA, making 88 2nd Ave. Food Corp. and Pirgos Food Corp. additionally responsible for the hours Plaintiff worked at all three locations.

Additionally, Defendants contested Plaintiff’s Motion for Class Certification as to Plaintiff’s request that class notice be sent to employees at 88 2nd Ave. Food Corp. and Pirgos Food Corp., arguing that Plaintiff had not demonstrated a sufficient “factual nexus” between himself and the employees at these locations as he primarily worked at the 449 Restaurant, Inc. location. The Court rejected this notion holding that Plaintiff met his minimal burden at this stage of litigation with circumstantial evidence that the corporate structure suggested common ownership and control and his testimony that he worked at all three locations. Thus, Plaintiff sufficiently demonstrated that employees at 88 2nd Ave. Food Corp. and Pirgos Food Corp. were similarly situated under the FLSA as they were subject to the same unlawful policies and practices.

For more information about the Moonstruck Diners case, please visit our current cases section at www.fslawfirm.com.

Applebee’s Lawsuit

On May 15, 2014, Fitapelli & Schaffer, LLP & Outten & Golden LLP, filed a class action lawsuit against Apple-Metro, Inc. d/b/a Applebee’s Restaurant (“Applebee’s”), who own and/or operate 38 Applebee’s restaurants in New York City, Westchester and Rockland counties.  Applebee’s is a popular restaurant brand.  This lawsuit alleges that Applebee’s failed to pay proper minimum wages, overtime pay, spread-of-hours pay, and uniform-related expenses to servers, bussers, runners, bartenders, barbacks, hosts, and other tipped workers as required under the New York Labor Law.  Additionally, this lawsuit seeks to recover misappropriated tips, unlawful deductions from paychecks, and failure to keep accurate records in violation of the New York Labor Law.  We are seeking to represent all tipped workers, including, servers, bussers, runners, bartenders, barbacks, and hosts, employed at Applebee’s owned and/or operated by Apple-Metro, Inc., in New York, from May 2008 to present.  Eligible employees should call us to join the case.  For additional information, please call the employment lawyers at Fitapelli & Schaffer, LLP, (212) 300-0375.

TGI Fridays Unpaid Wages Lawsuit

On April 17, 2014, Fitapelli & Schaffer, LLP filed a class action lawsuit against Carlson Restaurants Inc., Carlson Restaurants Worldwide, Inc., and TGI Friday’s Inc., who own and/or operate 920 T.G.I Friday’s restaurants in 60 countries and territories.  T.G.I. Friday’s is a popular restaurant brand.  This lawsuit alleges that T.G.I. Friday’s failed to pay proper minimum wages, overtime pay, spread-of-hours pay, and uniform-related expenses to servers, bussers, runners, bartenders, barbacks, hosts, and other tipped workers as required under the Fair Labor Standards Act and the New York Labor Law.  Additionally, this lawsuit seeks to recover misappropriated tips, unlawful deductions from paychecks, and failure to keep accurate records in violation of the New York Labor Law.  We are seeking to represent all tipped workers, including, servers, bussers, runners, bartenders, barbacks, and hosts, employed at T.G.I. Friday’s owned and/or operated by Carlson Restaurants Inc., Carlson Restaurants Worldwide, Inc., nationwide, from April 2008 to present.  Eligible employees should call us to join the case.  For additional information, please visit our case website at www.tgifridayslawsuit.com.

Taco Bell Overtime Settlement

In Baccollo v. Muy! Brands, LLC, et al., a wage and hour case filed in the Southern District of New York, Plaintiff recently accepted Defendants’ Offer of Judgment awarding Plaintiff $31,813.25.  This amount represents double the total amount of Plaintiff’s claim under the Fair Labor Standards Act (“FLSA”) in addition to reasonable attorneys’ fees, litigation expenses and costs of suit incurred by Plaintiff to later be determined by the Court.  Plaintiff, a salaried employee referred to as an Assistant General Manager, alleged several wage violations, including that of unpaid overtime wages for all of the time that Plaintiff worked more than 40 hours per week.  Although Defendants employed Plaintiff as an Assistant General Manager at their Taco Bell restaurants (one in New Jersey and one in New York) and paid Plaintiff a weekly salary, Plaintiff alleged that his duties were that of a non-exempt employee, thus entitling him to overtime compensation under the FLSA.

Defendants’ Offer of Judgment assumes Plaintiff’s full period of employment with Defendants, as alleged in the Complaint, including Plaintiff’s full 7-week training period.  Additionally, Defendants assume Plaintiff’s maximum hours worked and use Plaintiff’s weekly salary divided by 40 to determine his hourly wages and multiple that by 1.5 to arrive at his hourly overtime wages.  Defendants then doubled the total overtime compensation calculated for all overtime hours worked throughout Plaintiff’s employment at both restaurants to account for statutory liquidated damages in accordance with 29 USC §216(b), arriving at the $31,813.25.

Wage and hour violations such as this are commonly found in the restaurant and fast food industry.  Whether you are paid a salary or are an hourly employee, you may be entitled to overtime pay.  Even if employer refers to your position as a manager or some other position normally exempt under the FLSA, you may still be entitled to overtime wages.  If you work or have worked for a restaurant or fast food company within the past 6 years, in any capacity, call the employment lawyers at Fitapelli & Schaffer, LLP at (212) 300-0375 to schedule a free consultation to discuss your rights under the FLSA and New York Labor Law and find out if you too are entitled to unpaid wages.  We are currently seeking to represent other Taco Bell assistant managers.