A collection of residential care facilities have been ordered to pay a significant penalty by the U.S. Department of Labor, after the DOL found that the owners of the facilities had violated both minimum wage and overtime laws under the Fair Labor Standards Act. An investigation found that owners were paying certain employees flat rates per day, regardless of the number of hours that the employees worked. By doing this, the company tried to eschew overtime laws that require time-and-a-half overtime wages to employees who worked over forty hours in a workweek. In addition, the company also did not pay employees for certain hours that they worked, such as hours for required training. The laundry list of violations continued with a failure to display the FLSA poster and a failure to keep accurate records for weekly hours worked and paid. The Fair Labor Standards Act prohibits all of these violations. Non-exempt employees must be paid time-and-a-half overtime wages when they work over forty hours in a workweek, even when the employees are paid a “flat rate.” An employer in Ohio who violates overtime laws may be required to pay all unpaid wages, an equal amount of liquidated damages, and attorney’s fees and costs.
A recent investigation by the Department of Labor’s Wage and Hour Division has resulted in payment of $339,418 in unpaid wages and liquidated damages after a consent judgment. The investigation determined that the restaurant paid certain of its non-tipped employees at a “training” rate of $3.75 per hour until the employees proved to be efficient on the job. The investigation also found that the company did not pay its employees time and a half overtime wages for hours that the employees worked over forty in a workweek. The Fair Labor Standards Act requires that employers pay employees at least minimum wages, even when the work performed is for “training.” Additionally the FLSA mandates payment of time and a half overtime wages for hourly employees for their hours worked over forty in a workweek. See Acosta v. Freddie’s Inc., No. 1:17-cv-04347 (N.D. Ill.).
A national food distribution company recently agreed to pay over $136,000 in back wages and liquidated damages to 47 employees after the Department of Labor investigated and found overtime and other Fair Labor Standards Act violations. The DOL determined that the company misclassified employees as independent contractors and then did not pay the employees at least minimum wages and time and a half overtime wages. The company paid employees on a piece rate basis and did not make payments based on the hours worked by the employees. The DOL found that some employees were not compensated at least minimum wages based on the hours that they had actually worked, and also that the company paid the same piece rate basis for overtime hours worked by employees. Employers are obligated to pay employees at least minimum wages for their hours worked, and many employees are owed time and a half overtime wages for their hours worked over forty in a workweek, sometimes even when the employee is paid on a salary basis.
The Department of Labor recently settled with a restaurant after the DOL found that the company had failed to pay its employees all applicable overtime and minimum wages by not paying minimum wage to dishwashers and to a server who was performing work for the restaurant while receiving compensation only in the form of tips. The DOL further found that cooks, dishwashers, and servers did not receive appropriate time and a half overtime payments for their hours worked over forty in a workweek. Even tipped hourly employees must received the tip server minimum wage directly from the employer, regardless of how much that employee makes in tips. Violations of these requirements can results in two or three times the amount of unpaid wages, as well as reasonable attorney’s fees and costs. See Acosta v. Café Misono Inc., No. 17-cv-11993 (D. Mass.).
Two sushi restaurants have agreed to pay over $460,000 in back wages and liquidated damages, and over $150,000 in additional civil penalties for minimum wage, overtime, and record keeping violations. The Department of Labor claimed that sushi chefs and other employees at the restaurants worked up to 90 hours a week but were not paid for all hours that they worked, were shorted overtime pay, and had pay deducted for taking short breaks. The Fair Labor Standards Act requires employers to pay covered, nonexempt workers at least the federal minimum wage of $7.25 for all hours worked, and time and a half overtime wages for all hours worked over forty in a week. See http://www.dol.gov/newsroom/releases/whd/whd20160125-0
The U.S. Department of Labor recently filed a lawsuit against several Houlihan’s Restaurants franchises. The complaint alleges that the company violated the minimum wage, overtime, and record-keeping requirements of the Fair Labor Standards Act. The lawsuit was filed on behalf of about 1,430 current and former Houlihan’s employees and seeks back wages, tips, and liquidated damages. The complaint alleges that the Defendants required the employees to pay tips into a tip pool, which was then used to pay employees for tasks completing custodial and kitchen work, and that Houlihan’s regularly kept part of the employees’ tips, creating an illegal tip pool. The complaint also alleges that employees would work off of the clock and that the employees were not compensated overtime when they split their work at more than one Houlihan’s location. Tip pools may only include those employees who customarily and regularly receive tips, and employers may not share in the tip pool themselves. See Perez v. A.C.E. Restaurant Group Inc., No. 1:15-cv-07149 (D.N.J. 2015).
The Department of Labor’s Wage and Hour Division has found that Wei’s Hibachi Buffet, LLC violated the overtime, minimum wage, and record keeping violations of the Fair Labor Standards Act (“FLSA”). Hibachi Buffet did not pay servers a base hourly wage but instead forced them to work only for tips and room and board. Hibachi Buffet also failed to pay kitchen employees time and a half overtime wages for hours worked over 40 in a work week, as is required under the FLSA. The department also found that Hibachi Buffet did not maintain records for all hours that its employees worked. Hibachi Buffet has agreed to comply with the standards of the FLSA and to pay almost $100,000 in back wages and liquidated damages among twelve employees. See www.dol.gov/opa/ media/press/whd/WHD20151802.htm
With rare exception, it is illegal for an employer or supervisor to take a portion of a waiter or bartender's tips. According to the U.S. Department of Labor Wage and Hour Division, "tips remain the property of the employee that received them and the employee cannot be required to turn over his or her tips to the employer." U.S. DOL Fact Sheet #15A. Although tip pooling among certain employees is permitted, a "valid tip pool may not include employees who do not customarily and regularly receive tips, such as dishwashers, cooks, chefs, and janitors." U.S. DOL Fact Sheet #15.