Minimum Wage and Overtime Violations Lawyer & Attorney : Yezbak Law Offices : Off the Clock Work, Workplace Discrimination & Harassment

Judge Hayden Head of the U.S. District Court for the Southern District of Texas granted class status to a group of current and former employees of Sam Kane Beef Processors Inc. Judge Head ordered that notice should be sent to all hourly wage earners involved in production, processing, packing and cleaning activities during the three years prior to August 10, 2007. The workers who filed the lawsuit claim that they spend up to 2 hours a day engaging in unpaid work activities, including dressing and undressing, waiting in security lines and sanitizing equipment. Sam Kane Beef Processors argues that all of its employees were already paid for the disputed time.

The Supreme Court, in IBP v Alvarez, determined that meat processing workers must be paid for time spent donning and doffing protective or safety gear and equipment. In Alvarez, the Supreme Court also decided that under the continuous workday rule employees must be paid for all walking and waiting time occurring after donning but before doffing the required gear and equipment. 

Workers in meat processing and poultry plants have sued employers throughout the country. Tyson Foods in particular has faced many lawsuits regarding its alleged illegal pay practices. In 2007 the Third Circuit Court of Appeals decided that Tyson must pay its poultry workers for donning and doffing their safety gear. Pay practices at Tyson’s Goodlettsville, TN meat processing facility have been challenged in a lawsuit joined by over 600 workers. That case is scheduled for trial in August 2008.

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The U.S. Judicial Panel on Multidistrict Litigation ordered that pre-trial proceedings in 18 wage and hour lawsuits against Tyson Foods Inc. be consolidated. Tyson workers in Arkansas, Alabama, Georgia, Indiana, Kentucky, Maryland, Mississippi, Missouri, Oklahoma and Texas filed lawsuits for unpaid overtime wages. In 2005, the U.S. Supreme Court ruled that Tyson-owned IBP, Inc. violated the FLSA by failing to pay workers in South Dakota for the time they spent donning and doffing required sanitary and protective gear and equipment, as well as associated waiting and walking time. 

In September 2007, the Third Circuit Court of Appeals determined that donning and doffing required gear and equipment by Tyson workers constituted work as a matter of law. Still, Tyson chooses to not pay many workers for time spent changing into or out of protective clothing, waiting in lines to retrieve the clothing or perform production work, or walking from the locker rooms to their work stations.

The Arkansas Democrat-Gazette reports that: “Robert Camp of The Cochran Firm in Birmingham, Ala., who represents more than 1,000 clients in a suit against Tyson, said it could work to the plaintiffs' advantage also to all be heard in one court.”

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Forbes ranks the 25 best and worst paying jobs in America. The ranking is based upon the U.S. Government’s National, State and Metropolitan Area Occupational Employment and Wage Estimates using 2006 data. Not surprisingly the restaurant and other service workers dominate the worst paying jobs list. Medical professionals hold 13 of the 15 top spots.

The worst paying job classification in America is “combined food preparation and service workers, including fast food.” The mean annual wages for such workers was $15,930.

The complete list of worst paying job classifications are:

1. combined food preparation and service workers, including fast food
2. fast food cooks
3. dishwashers
4. dining room and cafeteria attendants and bartender helpers
5. hosts and hostesses, restaurant, lounge and coffee shop
6. counter attendants, cafeteria, food concession, and coffee shop
7. gaming dealers
8. shampooers
9. waiters and waitresses
10. ushers, lobby attendants, and ticket takers
11. amusement and recreation attendants
12. farm workers and laborers, crop, nursery, and greenhouse
13. cashiers
14. personal and home care aides
15. lifeguards, ski patrol, and other recreational protective service workers
16. parking lot attendants
17. pressers, textile, garment, and related materials
18. food preparation workers
19. bartenders
20. graders and sorters, agricultural products
21. maids and housekeeping cleaners
22. cooks, short order
23. child care workers
24. laundry and dry-cleaning workers
25. service station attendants
26. Service station attendants, the best of the worst, had a mean annual wage of $19,150.

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Minimum wage and overtime violations are rampant throughout the restaurant industry. These violations affect servers, bartenders, bus persons, hosts and hostesses, and kitchen staff. FLSA minimum wage and overtime violations in the restaurant industry are particularly disturbing because of the low wages earned by most restaurant workers. The U.S. Department of Labor’s Bureau of Labor Statistics reports median hourly earnings (as of May 2004) for restaurant workers: fast-food cooks earn $7.07 per hour; waiters and waitresses (including tips) earn 6.75 per hour; bartenders (including tips) earn $7.42 per hour; and hosts and hostesses earn $7.52 per hour.

The scope of violations in the restaurant industry is evident by reviewing the U.S. Department of Labor Wage and Hour Division’s enforcement record over the past several years.  Many restaurants across the country, particularly smaller ethnic restaurant chains, have been subject to DOL enforcement actions. 

Las Palmas Mexican Restaurants, for example, agreed to pay $130,698 in back overtime wages to 85 employees who worked at three restaurants in Nashville, Tennessee.  The Wage and Hour Division’s investigation revealed that servers, busboys, hostesses and kitchen staff had not been properly paid under the Fair Labor Standards Act (FLSA). 

La Tapatia Mexican Café y Cantina in Houston has paid $109,708 in back pay after an investigation by the U.S. Department of Labor’s Wage and Hour Division found 217 current and former servers and cooks had not been properly paid.  According to the Wage and Hour Division the company violated the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA), by paying servers straight time for all hours worked and also by failing to pay overtime to non-exempt cooks.

A Federal Court in Minnesota ordered El Mariachi restaurants in Fairmont and Austin, Minnesota to pay 21 workers $39,931 in unpaid overtime compensation, minimum wages and liquidated damages.

In Indiana, 245 restaurant workers, including cooks, servers and bus persons recovered $350,041 because of the DOL’s efforts.  The workers were employed in 11 different restaurants throughout Indiana.  Another dozen Indian workers, kitchen workers at Mexico City Grill, in Indianapolis and Mi Casa Mexican Restaurant in Greenfield, Indiana were ordered to receive $10,000 in unpaid overtime wages.

In Austin, Texas eight kitchen staff employees recovered $51,347 in back wages from The New Mandarin Chinese Restaurant. 

Asian Super Buffet La. Inc. in Kenner, Louisiana violated the FLSA by including tips, meals and lodging as part of the wait staff’s compensation for hours worked, resulting in employee wages below the federal minimum wage. The company also failed to properly compensate employees for overtime hours and to maintain required records. As a result, Asian Super Buffet agreed to pay $77,218 in back wages to 26 current and former kitchen workers and wait staff. 

El Nopal Mexican Restaurant paid back wages totaling $95,800 due to 15 employees of the Valley Park, Missouri restaurant following an investigation by the U.S. Department of Labor’s (DOL) Wage and Hour Division. According to the investigation, the work force consisted of primarily low-wage Hispanic workers employed as servers and cooks.  Restaurant officials were found in violation of the minimum wage, overtime and record-keeping provisions of the Fair Labor Standards Act (FLSA). Approximately $68,000 of the total was due from the minimum-wage provision violations, and the remaining $27,000 involved unpaid overtime compensation.

San Pietro Restaurant, an Italian eatery located in Midtown Manhattan, paid 45 employees a total of $102,216 in overtime back wages. According to a U.S. Department of Labor investigation, the restaurant improperly paid cooks, waiters and bus boys among others. The investigation found that many employees worked more than 40 hours a week without receiving overtime pay. Investigators determined that employees worked an average of 52 hours per week. Management officials of San Pietro Restaurant agreed to pay employees the back wages they were due and to come into full compliance with the FLSA in the future.

While most of the DOL’s enforcement actions have targeted local restaurant chains. National chains and franchises face similar issues. In 2006, the DOL filed a lawsuit against Barbeque Ventures LLC, Barbeque Ventures of Nebraska LLC and Old Market Ventures LLC, known as Famous Dave’s, to collect $92,516 in back wages due 25 employees. The department alleged that the employees (kitchen workers and servers) at all five Famous Dave’s locations in Omaha and Bellevue, Nebraska, and Council Bluffs, Iowa were not paid overtime.

In Nashville a restaurant worker at two Sbarro Restaurants, operated by franchisee F & S Foods, Inc., filed a federal lawsuit claiming that he and his co-workers were not properly paid for overtime hours and were required to work off the clock without compensation. The employer told the Court that it had compensated its employees for unpaid overtime and agreed to the entry of an $11,000 judgment in favor of the one employee who filed the lawsuit.

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The U.S. Department of Labor recently published a formal opinion letter stating that timeshare salespeople are not exempt from the FLSA’s wage and hour provisions under the “outside sales” exemption.  Timeshare salespeople’s primary duties are to sell timeshare condominiums at resorts typically found in exotic locals and tourist destinations throughout the United States, including Florida, Hawaii, Puerto Rico and even Gatlinburg and Nashville, Tennessee.  Consumers who purchase time shares buy a share of the condo (i.e. certain weeks of the year) rather than pay for the entire dwelling. 

Timeshare salespeople typically earn commissions on the timeshares they sell. The DOL’s opinion letter underscores the legal requirement that “outside salespeople” must be employed away from the employer’s place of business. The typical timeshare salesperson, however, works on location at the employer’s resort, which is the employer’s place of business. As such, timeshare salespeople are not exempt under the outside sales exemption and should receive overtime wages as provided by the FLSA (unless another exemption applies). 

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Five security guards hired to protect Prince Faisal bin Turki bin Nasser Al-Saud (a diplomat and a member of the Saudi royal family) at his McLean Virginia home are entitled to overtime pay according to a U.S. Appeals Court.  The security guards filed a lawsuit because they were paid only straight time without any overtime premium for hours over 40 in a workweek.  The court ruled that the security guards were joint employees of the Prince and Capital International Security, Inc. and that CIS was required to pay them overtime.  CIS had argued that the guards were independent contractors, who are outside the protection of the FLSA. 

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