Articles Posted in Work off the Clock

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A waiter working for a chain restaurant owned by a larger, parent company, if he has a grievance against his employer, may have the option of suing the larger company. Such is the case with a class action lawsuit that began with only two plaintiffs and has already grown to 50 plaintiffs. The lawsuit, filed in federal court in Miami, isn’t done yet though. Other waiters and waitresses across the country who work for, or have worked for, the company are being sought out to join the class action lawsuit.

The company being sued is Darden and it owns many popular restaurant chains which stretch across the country, including Olive Garden, Red Lobster, Longhorn Steakhouse, Capital Grille, and Bahamas Breeze. There are a total of more than 2,000 restaurants in the United States, including 185,000 employees, which are currently being managed by Darden.

The lawsuit alleges that Darden has failed to pay its workers the required minimum wage and forced them to continue working off the clock after their shifts have ended. This has allegedly resulted in overtime hours for which the employees were never paid straight pay, much less the proper overtime compensation as mandated by federal law. More specifically, the lawsuit alleges that Darden violated the federal Fair Labor Standards Act by forcing its employees to work in excess of forty hours per week without the proper overtime compensation.

The accusations date back to 2009 although, because three years is the statute of limitations for this kind of complaint, it is likely that Darden has been utilizing these illegal employment practices for much longer than that. One plaintiff has already been disqualified from participating in the class action because he worked for Darden more than three years before the lawsuit was filed.

If the number of participants in the class continues to grow as it has, the amount of money that Darden may be held liable for could reach the tens of millions of dollars. If the class is certified, such a formidable amount will certainly put pressure on the company to settle the case before it reaches the courts.

In addition to the pending lawsuit from its employees, Darden is also facing legal action from the other end of its business. Patrons have filed a lawsuit against the giant restaurant company alleging deceptive business practices. Like many restaurants, Darden adds an automatic gratuity to its bills for larger parties (in New York City, for example, a party of eight or larger would automatically have the gratuity added to their bill). However, the lawsuit alleges that, despite the automatic gratuity, their bills still came with an added space for patrons to put the tip they wish to pay. This suggests that the automatic gratuity is not going to the restaurant’s wait staff, as expected. Rather, it implies that the restaurant is receiving the gratuity in addition to the tab for food and drinks. Such a practice is deceitful to customers as well as being harmful to both customers and employees.

Although the company has remained rather quiet on the issue, one representative has called the allegations “baseless”.

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Employers must be vigilant in ensuring that their hourly employees are paid for all of the time they spend doing work-related activities. SoulCycle, which is known for its cardio-heavy 45-minute workout classes, is about to pay for neglecting to do this, according to a new lawsuit.

A former instructor for the fitness company, Nick Oram, alleges that they only paid their instructors for the time spent teaching classes. Instructors were also allegedly expected to train, develop routines, attend meetings, and create playlists but they were allegedly not paid for any of the time spent doing that work. The lawsuit claims that these pay practices are not consistent with the pay requirements as put forth by California and New York labor law.

Oram said in a statement that his goal in the lawsuit is “to ensure that SoulCycle pays all of the hard working and dedicated instructors what they deserve and compensates them fairly for all hours worked.”

SoulCycle denies the allegations. A spokesperson for the company said, “We strongly believe that the compensation and the benefits we provide to our team are amongst the best in the industry and that we are in full compliance with the law.”

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Sometimes employers try to avoid paying their employees for all hours worked by fudging time cards. They think that, because of the lack of a paper trail, they can get away with these illegal practices. This may work for a time, but the truth usually finds its way out.

White Glove Car Wash in Fresno, California has recently found this out the hard way. The Labor Commissioner’s Office and the Department of Industrial Relations conducted an investigation into allegations of misconduct and violations of California labor law. The investigation revealed that employees were allegedly often prevented from clocking in as soon as they got to work. Rather, they would allegedly report for work and begin working but were not allowed to clock in until directed to do so by a supervisor. This led to workers allegedly regularly working several hours a week for which they were never paid. In some cases, employees allegedly worked full eight-hour days but were only paid for four hours.

As pointed out by Christine Baker, director of the Department of Industrial Relations, the employees are not the only victims here: “These illegal actions hurt not only the employees, but also honest business and taxpayers.” By allegedly refusing to pay employees for all of the hours that they work, White Glove Car Wash can allegedly afford to charge customers less for the same services honest competitors offer because their overhead has been illegally lowered. This is an alleged unfair business practice and hurts many more people than just the employees.

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Many American workers get taken advantage of by their employers because they don’t fully understand their rights as employees. This can be especially true when the workers are immigrants whose legal status may be questionable. However, this does not justify employers failing to pay their workers for all hours worked, including overtime.
Four Brothers Pizza Inn, a chain with nine restaurants in New York and Massachusetts, is currently facing a lawsuit by two former employees for allegedly taking advantage of some of their employees’ immigrant status. While employees were allegedly required to work between 60 and 72 hours each week on a regular basis, Four Brothers Pizza allegedly had them report only half their daily hours. When the employees were issued their paycheck, they were allegedly told to endorse it and return it to Four Brothers Pizza, whereupon they were then paid between $300 and $500 in cash.

Meanwhile, the employees allegedly faced racial discrimination in the workplace. This discrimination allegedly included racial slurs and threats to call immigration if any of them complained about the working conditions.

Due to their immigration status, the court has granted the plaintiffs’ motion to proceed anonymously as John Doe I and John Doe II. Protecting the identity of the employees is vital because of the possibility that they may face retaliation from Four Brothers Pizza. Many of them are the sole breadwinners for their families and so deportation would be catastrophic for them.

Four Brothers Pizza has an employment application on their website which can be submitted either through the website or downloaded as a PDF. The application asks if the applicant is legally eligible to work in the United States and makes references to the Immigration Reform and Control Acts of 1986.

The plaintiffs’ attorneys have requested the court to consider the case as a class action lawsuit. While Four Brothers Pizza is the only party with the records needed to determine the exact number of applicants, Milan Bhatt, the co-executive director of the Worker Justice Center of New York, which filed the lawsuit, says there is reason to believe that there could be as many as 75 potential class members. The class would include anyone who had been a full-time employee of Four Brothers Pizza any time between 2005 and 2012.

Nathanial Charny of Charny & Associates, who is serving as co-counsel on the case, believes that the employees could be owed as much as $1 million in unpaid wages and overtime. The amount would be doubled as a penalty to the pizza chain.

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Legislation has been passed regulating the minimum wage an employer can pay their employee and overtime compensation as a means of abolishing the days when workers toiled away in factories for twelve hours a day, six days a week, for a pittance. Alas, the existence of the laws doesn’t always prevent employers from abusing their workers. In a recent overtime lawsuit against a restaurant owned by Dick Lee Pastry Inc. in San Francisco, the municipal attorney for the City of San Francisco cited the restaurant owners for alleged violations of overtime laws and wage theft, among others.

One employee involved in the case alleged that she regularly worked from 9am to 9pm with a single 1-hour lunch break, but her paycheck only ever reflected 3 hours. After five years of this, the woman finally quit her job in 2010 when the company allegedly refused her a two-week break to attend to an important child care issue involving her young son.
Another employee also allegedly worked as a housekeeper at the restaurant owner’s home at night after spending her days busing tables at the restaurant.

The company allegedly paid employees no more than $1,100 per month to work six-day weeks at 11-14 hours per day. Not only did this violate California overtime law, but the monthly stipend worked out to less than half of the current San Francisco minimum wage of $10.50 per hour (it was $9.92 at the time the lawsuit was filed).

According to the lawsuit, the company issued employees copies of work schedules that reflected, at most, three hours of work per day and issued paychecks reflecting those hours at the minimum wage. The rest of the employees’ wages were paid in cash, thus ensuring that, according to the only paper trail that was left, the company appeared to be operating within the law.

The lawsuit settled for $525,000, the single largest amount yet secured by the City in pursuit of recompense for wage theft. Out of that money, one of the employees will receive as much as $89,000 in back wages. If the company had not settled, they faced a much larger judgment of up to $1.5 million as well as the potential for seizure of two properties.

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Companies will sometimes use the threat of limiting an employee’s future in order to pressure the employee. That does not however, make the company’s behavior any more legal. According to a class-action lawsuit brought to court in California, Interpublic Group allegedly did just that.

Employees were allegedly required to “volunteer” at events after their shifts had ended with neither overtime compensation nor breaks, both of which employers are required by the state of California to provide. If employees did not “volunteer” they were allegedly told that it would “negatively affect their ability to advance their careers.”

Interpublic Group has agreed to pay $327,000 to settle the suit and a judge has preliminarily approved the settlement. Of that money, $20,000 will go to Daniel Malakhov, a former account coordinator for Rogers & Crown and the original plaintiff in the suit. According to court documents, Malakhov has had to leave the PR industry as a result of the publicity of the lawsuit.

Although Malakhov did not personally witness similar behavior at other Interpublic Group firms, a study conducted by the Cullen firm allegedly found that similar pressures to work overtime without compensation were found at other Interpublic agencies. Due to the findings of the study, employees at other Interpublic firms have been deemed eligible for financial compensation.

In addition to Malakhov, the settlement will to go employees at Rogers & Crown, PMK-BMC, the Axis Agency, GolinHarris, and Weber Shandwick. The class consists of 329 California employees whose jobs range from account coordinator to administrative assistant and have worked in those roles since June 30, 2007. The deadline for class members to file a claim is April 11 and the final approval of the settlement is expected to take place on May 23.

As a condition of the settlement, Interpublic Group is not admitting any wrongdoing.

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Sometimes workers are required to perform certain tasks before and after their work actually ends and it is important that employees are compensated for all time spent at their place of employment. This blog has discussed a few of those tasks, such as time spent putting on and taking off protective clothing and time spent waiting in line to have bags checked before leaving work. Now a new case has arisen in California involving Quetico LLC, a Chino-based warehouse and distribution firm and their time clocks.

Allegedly, Quetico’s two warehouses only have three time clocks for more than 800 employees, leading to long lines for employees to clock in and out of work. As a result, employees were allegedly forced to arrive to work earlier and earlier in order to avoid clocking in late. It also meant that they had to stay at work after hours in order to clock out. According to California Labor Law, any time spent at work over and above the standard work week is considered overtime and (unless the employee is overtime exempt) is required to be paid at the standard overtime rate. Any employee who complained about the unpaid overtime was allegedly issued a disciplinary memo by Quetico. Three employees who filed complaints with the Office of the Labor Commissioner were allegedly suspended from their jobs.

In addition to the time spent in line before and after work, the lines at the time clock also became an issue for employee lunch breaks. The employees were allotted a 30-minute meal break per shift for which they were required to clock in and out but employees often had to cut their meal breaks short as a result of the long lines. This is in violation of the California Labor Laws, which require that employees are provided at least a 30-minute meal break. Allegedly, Quetico altered the time sheets to make it appear that the employees had received the full benefit of the 30-minute break.

The California Labor Commissioner, Julie Su, has issued a series of California labor code citations against Quetico, totaling more than $1 million. It is unclear whether the citations came about as a result of a lawsuit or an investigation. Either way, the investigation undertaken by the Division of Labor Standards Enforcement found that employees were coming in early and staying late in order to deal with the long lines and that they were not being paid for that extra time.

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This blog is constantly writing about the need to make sure employees are paid at least minimum wage for all hours worked and that they are given proper breaks. It should be noted that this includes temp workers. Wal-Mart is again facing a lawsuit, this time from employees of two staffing agencies that Wal-Mart uses in the Midwest: Labor-Ready Midwest Inc. and QPS Employment Group Inc.

According to the lawsuit, Wal-Mart allegedly required temp workers to attend mandatory training, come in early and work late to finish projects, and skip meal and rest breaks, all without compensation. Additionally, Wal-Mart allegedly failed to maintain accurate records of hours worked by the employees and to provide itemized statements which included the number of hours worked by the temp employees, as well as the total amount of money earned.

The suit also alleges that Wal-Mart and its staffing agencies failed to pay workers for a minimum of four hours on days when they were required to work for less than four hours, as required by Illinois law.

The class action of workers is suing for violations of the Fair Labor Standards Act, Illinois Wage Payment and Collection, Illinois Day and Temporary Labor Services Act, and the Illinois Minimum Wage Law. The lawsuit is seeking unpaid wages for the workers as well as an injunction against Wal-Mart and its staffing agencies, preventing them from further violations of state labor laws.

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Previously, this blog has discussed the issue of preemption. Preemption occurs when a federal law and a state law conflict — in this case, the federal law always preempts, or overrides, the state law. For example, in a previous case, when a federal labor law conflicted with a state wage and hour law, the federal law had to be applied. The same would be true of the Fair Labor Standards Act (FLSA). Problems occur when it is unclear whether federal and state laws conflict, or how much they would need to conflict for preemption to take place. If you have a wage and hour dispute and are not sure whether your claim is under federal or state law, contact an Illinois wage and hour attorney.

In Smith v. Family Video Movie Club, the plaintiffs sued defendant for violating the Illinois Minimum Wage Law (IMWL) — as well as similar laws in Michigan and Iowa — and the FLSA. The plaintiffs worked in the defendant’s various movie and video game rental stores, where they claim that they were required to perform work while not on the clock. This included assisting customers, opening and closing the stores, working on inventory, stocking the shelves, making bank deposits, and cleaning and maintenance. Although the plaintiffs were paid an hourly wage, they received no overtime compensation. Plaintiffs sought to be able to sue defendant in a class action. Meanwhile, the defendant filed a motion to dismiss, claiming that the chain’s overtime compensation rate met the exemptions for Michigan’s Minimum Wage Law (MMWL), and that the FLSA preempted the IMWL and Iowa’s provisions for forming a class action.

Judge Samuel Der-Yeghiayan looked at the various laws at issue. He granted the dismissal for the Michigan overtime complaint under the MMWL because the MMWL did not have explicit provisions permitting plaintiffs to pursue their right to overtime wages, and plaintiffs were already pursuing their rights to overtime under the FLSA. At the same time, the judge found that the FLSA did not preempt provisions of the MMWL or the IMWL with regard to a class action lawsuit. The defendants had tried to argue that the FLSA provisions for a class action suit expressly preempted class action claims brought by plaintiffs under state law. For a federal law to expressly preempt, it would need to state explicitly “that it overrides state or local law.” Judge Der-Yeghiayan found that courts had ruled previously that bringing a class action lawsuit under the FLSA did not preclude bringing a class action under a state law claim via Federal Rule of Civil Procedure 23(a). Therefore, plaintiffs could still form a class action under state law even if federal law was also violated. The judge denied the defendant’s motion to strike class allegations.

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This blog has already discussed an opinion released by the U.S. Department of Labor on the definition of clothes. That opinion included the concept of a “principal activity”, defined as an activity which is “integral and indispensable” and activities occurring “after the first principal activity and before the last principal activity are compensable”.

Forever 21 might want to keep this in mind as it is beginning to look like bag checking could be considered a principal activity. While it is a standard practice in many retail stores to check employee bags before allowing them to leave in order to prevent theft, this can become an issue for the employees when it cuts into their breaks and post-shift hours.

Five employees of Forever 21 (four former, one current) have filed a class action in California against the company. They allege that waiting to have their bags checked could take ten minutes or more, making for significant time for which they were kept at the store without getting paid. This allegedly is a wide-spread practice within the company and so the class could potentially consist of thousands of Forever 21 employees from all over California.

The plaintiff’s lawyers are also asking the State of California to appoint them as private attorneys general so they may prosecute penalty claims on behalf of the state.

One of the plaintiff’s attorneys pointed out the susceptibility of these plaintiffs. “Sales associates at Forever 21 stores are often still in high school and under the age of 18 when they begin their employment. These young people are vulnerable and often do not understand their employment rights. This lawsuit is meant to give these young people a voice about how they were treated while employed by Forever 21 in California.”

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