Spread of Hours

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.

Domino’s Unpaid Overtime Settlement

$1.28 Million Awarded to Domino’s Delivery Workers

After three years of litigation, the delivery workers at Domino’s Pizza shop (“Domino’s”) were awarded $1.28 million to settle their lawsuit for unpaid wages.  The delivery workers filed a collective action under the Fair Labor Standards Act alleging their employer, Domino’s, failed to pay them the proper minimum wage rate, overtime pay, and uniform maintenance pay.  The $1.28 million settlement will be distributed to 61 workers (awards will range from $61,300 to $400 per delivery person depending on how long each worked) to settle their claims.

Delivery workers were paid the tipped minimum wage rate of $5.65 instead of being paid the full minimum wage rate of $7.25.  Delivery workers alleged they should have been paid the full minimum wage rate because their employer failed to properly notify them of the tip credit and required delivery workers to perform non-tipped duties such as, cleaning the ovens and floors and distributing Domino’s Pizza fliers.  Furthermore, delivery workers would not be paid for all the hours they worked.  For instance, the named plaintiff stated he would work around 65 hours per week, but would only be paid for 45 hours.  Finally, Domino’s failed to provide a weekly uniform maintenance allowance and failed to keep proper records of hours worked by delivery workers.

Wage violations are commonly found in the restaurant industry.  If you work or have worked for a restaurant or caterer within the past 6 years, in either a tipped or non-tipped position, call the employment lawyers at Fitapelli & Schaffer, LLP, (212) 300-0375, to schedule a free consultation to discuss you rights under the Fair Labor Standards Act and New York Labor Law.

Energy Kitchen Lawsuit

Stamped Complaint – Hernandez v. Energy Kitchen, Inc., et al – 13 cv 6978 (LGS)(GWG)_REDUCED SIZE

On October 2, 2013, Fitapelli & Schaffer, LLP filed a complaint in U.S. District Court on behalf of cooks, delivery workers, kitchen workers, counter servers, helpers, and dishwashers (collectively the “Employees”) at any Energy Kitchen Restaurant in New York.  This class action lawsuit seeks to recover damages for unpaid minimum wages, overtime pay, spread-of-hours pay, unlawful deductions, and uniform-related expenses.

The Employees at Energy Kitchen allege that Energy Kitchen failed to pay them the proper minimum wage rate for hours they worked.  Specifically, Energy Kitchen failed to satisfy the “tip credit” requirements in order for them to pay tipped employees a reduced hourly rate; required tipped employees to perform non-tip producing duties (i.e., cutting vegetables; preparing food; and washing dishes) in excess of 20% of their shift; and made unlawful deductions from their pay for mistakes and bicycle-related expenses.  Also, the Employees allege that they consistently worked over 40 hours per week and were not compensated the correct overtime pay rate.  Furthermore, Energy Kitchen failed to pay the Employees one additional hour pay at the minimum wage rate for shifts spanning 10 or more hours.  Additionally, Energy Kitchen required the Employees to wear uniforms which they failed to launder and/or maintain or pay the Employees the required weekly amount for uniform maintenance in addition to the required minimum wage.  Finally, the Employees who needed additional uniforms were required to purchase these items at their own expense.

We are seeking to represent all cooks, delivery workers, kitchen workers, counter servers, helpers, and dishwashers employed by any Energy Kitchen in New York within the past six years.  Eligible employees should call us, (212) 300-0375, to discuss joining the case, as there is a running statute of limitations.

 

CAPITAL GRILLE LAWSUIT

Order granting 216(b) 9-20-13 

PLAINTIFF CONSENT FORM

Class Notice

On September 20, 2013, the U.S. District Court (S.D.N.Y.) granted conditional certification and court-authorized notice to potential class members that have worked as tipped employees at 47 Capital Grille locations nationwide since November 18, 2008.

In, Chhab v. Darden Restaurants, Inc., et. al., Ahmed Chhab, Katheryn Shrader, Lance Feldhun, Michael Rella, Vincent Anthony Boreland, and Adrianne Benzion (“Plantiffs”) alleged that Darden Restaurants, Inc., GMRI, Inc., Capital Grille Holdings, Inc., d/b/a The Capital Grille, and Rare Hospitality International, Inc. (“Defendants”) violated the Fair Labor Standards Act (“FLSA”) and the (“NYLL”) when they (1) failed to pay tipped employees the full minimum wage rate; (2) failed to pay tipped employees for all hours worked; and (3) failed to pay tipped employees overtime wages at one and one-half the full minimum wage rate.

In Plaintiffs’ Motion for conditional certification and court-authorized notice, Plaintiffs’  argued that Defendants could not pay tipped employees at the reduced, tipped minimum wage rate because Defendants required tipped employees to spend in excess of 20% of their shift engaged in non-tipped side work and participate in a tip pool that included silverware polishers and/or dish washers. Additionally, Plaintiffs argued that Defendants failed to pay tipped employees for all the hours that they worked as Defendants’ timekeeping system (“DASH”) and Safe and Secure policy often resulted in tipped employees working off-the-clock.

In granting Plaintiffs’ Motion for conditional certification and court-authorized notice, the Honorable Naomi Reice Buchwald found that Plaintiffs had met their burden establishing common practices and FLSA violations across the Capital Grille brand.

Defendants had made several unsuccessful arguments in an attempt to defeat Plaintiffs’ Motion. First, Defendants submitted a number of declarations from tipped employees which claimed that they never performed non-tipped side work in excess of 20% of their shift. In the Court’s decision, Judge Buchwald rejected Defendants’ competing declarations as they would require the Court to evaluate credibility and determine the facts. According to the Court, such rulings are inappropriate at the certification stage.

Next, Defendants argued that Plaintiffs were not similarly situated to putative class members with respect to the tip pool claim as Defendants did not have a common policy or practice regarding sharing tips prior to November 2011. Despite Defendants’ contention, the Court was persuaded by evidence presented by Plaintiffs that silverware polishers and/or dishwashers existed in at least 9 separate Capital Grille locations. Moreover, the Court rejected Defendants’ contention that tip pools at Capital Grille were voluntary as Defendants failed to support their argument with any evidence.

Finally, Defendants’ claimed that Plaintiffs had failed to establish that they and other tipped employees, were victims of a common policy that required tipped employees to work off-the-clock. Defendants maintained that Capital Grille’s time-recording and Safe and Secure policies were facially lawful and that Plaintiffs had failed to establish common deviations from that resulted in FLSA violations. In rejecting this argument, the Court relied on evidence establishing that Defendants maintained control over the timekeeping policies and procedures at TCG, including Safe and Secure, and that these policies often resulted in tipped employees working off-the-clock.

            If you have worked as a tipped employee at Capital Grille since November 18, 2008, you do not have to wait to receive notice to join the case. Please contact Fitapelli & Schaffer, LLP at 212-300-0375 to discuss your employment with Capital Grille.