Although the federal Fair Labor Standards Act (FLSA) allows certain hourly workers to be paid less than the federally mandated minimum wage, the law provides conditions for the low pay. Employers can pay tipped workers (servers, bartenders, etc.) a lower minimum wage than other hourly employees, but only if those workers earn at least the federal minimum wage through the combination of their wages and tips. If they make less than the minimum wage, their employer is required to make up the difference in extra wages.
Furthermore, just because an employee receives tips and can be paid a lower minimum wage, does not exempt her from overtime compensation when she works more than eight hours a day or forty hours a week. It should also be taken for granted that every employee gets paid at least straight time for all time worked, but a recent wage and hour lawsuit alleges that this was not the case at El Vaquero restaurants in Ohio. El Vaquero restaurants denies these claims.
The lawsuit was filed by Rhonda Sanchez, a former waitress for the restaurants who alleges that El Vaquero failed to pay employees minimum wage, failed to pay overtime, and forced employees to share tips with the restaurant’s owners. As evidence to support her allegations, Sanchez provided “Weekly Time Sheets” and the official “Payroll Register” printouts to be compared to each other. The two documents together allegedly showed that employees were allegedly not paid for all of the time that they worked, and that they were allegedly paid overtime on a 2-week, 80-hour basis, rather than the 1-week, 40-hour basis that the FLSA requires.
At the time that the lawsuit was filed, the Ohio minimum wage was $7.70, which means that tipped employees should have been earning at least $3.85 an hour, but this was allegedly not the case for employees working for El Vaquero.
Sanchez also alleges that she did not make minimum wage as dictated by Ohio state law, between her wages and her tips. She further alleges that she was not allowed to keep all of her tips. According to the lawsuit, servers were required to give the restaurant three percent of their sale amount. This percentage was allegedly referred to as “El Vaquero’s money” and was shared between owners and managers.
This is known as a “tipping pool” and is allowed by law only if all members of the pool are employees who normally receive tips. Managers and owners do not fit into that classification, which makes El Vaquero’s alleged tipping pool illegal. If servers did not make up that three percent from their tips, the lawsuit alleges they were required to pay it out of their own pockets. The result was that Sanchez (and other servers) often earned less than minimum wage when they worked for El Vaquero.
US District Judge Algenon L. Marbley granted the plaintiffs class action status, which allows for a potential 450 more current and former employees of the restaurant to join the lawsuit. In his decision to certify the class, Judge Marbley noted that Sanchez “has met the ‘fairly lenient standard’ necessary to demonstrate that FLSA conditional collective action certification is appropriate.”
Sanchez and the other lead plaintiff, Renae Castillo, have reportedly settled with the restaurant for about $42,000.
The Chicago class action lawyers at the Chicago Overtime Law Center are investigating unpaid overtime claims by waiters and bus boys and other restaurant and hotel workers against national restaurant chains including Hilton, W, Marriott, Sheraton, Holiday Inn, Best Western, Chipotle, Red Lobster, Olive Garden, Outback Steak House, Taco Bell, Burger King, Wendy’s and hotels for mis-classifying employees as managers or assistant managers, forcing employees to work off the clock at business, failing to share all tips, erasing or altering time sheets or time records, pressuring workers not to report or record overtime, and otherwise failing to pay workers for overtime and other wages. If you are the victim these wage theft practices call us at (312) 869-4095 or contact us online.
The Chicago class action attorneys at the Chicago Overtime Law Center have three decades of experience fighting to help employees who are victims of wage, overtime and tip theft by their employers. We have a team of Chicago unpaid overtime lawyers who concentrate on prosecuting state and nationwide class action lawsuits. Our attorneys work out of Chicago and Oak Brook offices and pursue claims for workers all over the Chicago area including West Chicago and Schaumburg. We protect unpaid workers who haven’t received overtime throughout the Chicago area including in DuPage, Lake, McHenry, Kane and Cook Counties.
Our Waukegan and Joliet overtime lawyers are intimately familiar with the issues that arise during wage claim litigation, and we know the laws that govern overtime cases well. Many employers mis-classify employees as being exempt from overtime laws and pay workers salaries instead of hourly wages in order to avoid paying them overtime. Some employers mistakenly classify employees as exempt and others intentionally do so in order to circumvent the law. In either case, workers do not receive the wages they should, and a lawsuit may be the only way to recover their earned wages.
The Chicago Overtime Law Center is based in Chicago, and represents clients throughout the country who have unpaid overtime and other employment right claims.