McDonald's Workers Allege Wage Theft

Last week, McDonald's workers in three states filed seven lawsuits alleging that the company is systematically stealing wages through illegal pay practices including failure to pay overtime, forced work off the clock, and erasing hours from their timecards.  The lawsuits, filed in California, Michigan and New York, also accuse McDonald’s of denying workers meal periods and rest breaks, and requiring employees to buy their own uniforms or pay to clean those uniforms -- practices that brought the workers pay below the federal minimum of $7.25 per hour.  Five of the seven lawsuits also name some of the company’s individual franchisees as defendants.  Two lawsuits filed in Michigan against McDonald’s and the Detroit-area franchise owners, allege that the restaurants told the worker to show up to work, but then ordered them to wait an hour or two without pay until enough customers arrived.  

These allegations are not unique to McDonald's -- these are the kinds of complaints our office often hears from restaurant employees and workers at car washes.  In fact, they are similar to the facts in several of our current and recent cases.  The McDonald's cases are remarkable for their potential size.  Just one of the cases was filed against the roughly 100 McDonald’s restaurants in California that are company-owned and operated.  That lawsuit seeks to be a class action representing 27,000 current and former McDonald’s employees.

If you want to learn more generally about these kinds of pay practices and their legality, visit our website here.

 

The Worst Restaurants to Work For: Is your employer on the list?

This year, the Restaurant Opportunities Centers United (“ROC-United”), a national restaurant workers’ organization, published a handy “Diners’ Guide” that provides information on wages, benefits and workplace standards at some of the most popular restaurants in the United States.  The guide reveals what many servers, cooks, and dishwashers already know: restaurant workers regularly face poverty wages, unsafe working conditions, racial, ethnic, and gender discrimination, or work while sick on a regular basis.  Now the Diners’ Guide, and the reality that it brings to light, is getting some much deserved attention.  Although the guide was published much earlier this year, recent stories published in the popular internet press, and by no less a foodie than the New York Times’ Mark Bittman, have brought renewed attention to the guide. 

Restaurant industry workers are standing up for themselves in other ways, too.  Servers at restaurants like The Cheesecake Factory (named one of the worst employers in the guide and press) are suing their employers to recover lost wages for time they are required to work off the clock and for uniforms and tools that they are required to provide for themselves.

Hopefully discussions and actions like this will work to change things in the business.  Do your part to ensure that servers aren’t forced to work off the clock, pay for employer-required uniforms, and aren’t forced to work while sick.  Learn what your rights are as a tipped employee and take the guide with you when you go out to eat.

Baluchi's Indian Food to Pay $1 Million to Workers

Restaurant workers at a New York City restaurant chain, Baluchi’s Indian Food, and its owner, Rakesh Aggarwal, will finally get paid.  Eighteen workers filed suit for to recover minimum wages, overtime pay and misappropriated tips, under the FLSA and New York state wage and hour laws on behalf of a class of workers.  Judge Richard J. Sullivan of the U.S. District Court for the Southern District of New York, approved a $1 million settlement between the parties.

Current and former employees of Baluchi’s will receive a portion of the $1 million settlement based on their position, weekly wage, hours worked per week, and number of weeks worked.  Individual compensation will also depend on whether an employee is classified as a “Front of the House Plaintiff” who traditionally received tips while working, such as a waiter or delivery person, or a “Back of the House Plaintiff,” who traditionally did not receive tips, such as a cook or a dishwasher.  

According to Forbes, restaurant jobs are among the lowest paying jobs in America. Furthermore, low-wage workers in the restaurant industry are often subjected to illegal pay practices.  For more information on working conditions affecting New York restaurant workers read Behind the Kitchen Door: Pervasive Inequality in New York's Thriving Restaurant Industry published by the Restaurant Opportunities Center of New York.

Restaurant Wait Staff Gets Stiffed

A Coral Gables restaurant agreed to pay $53,324 in back wages to 27 employees following a Department of Labor investigation. Cafe Vialetto in Coral Gables, FL agreed to pay its employees after federal investigators determined the restaurant did not pay wait staff for hours worked before and after their shifts, violating minimum wage laws. The DOL also found that the restaurant violated the overtime pay and record keeping requirements of the Fair Labor Standards Act.

Minimum wage and overtime pay violations are very common in the restaurant industry. Illegal pay practices are so common in the industry that many restaurant workers assume that the practices must be legal. Exploitation of restaurant workers is particularly troubling because their wages are among the nations lowest. Restaurant jobs meager wages make them some of the worst paying jobs in America.

Restaurant and Service Workers Top Worst Paying Job List

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.

Servers and Other Restaurant Workers Are Getting Short Changed

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.

Tipped employees

Tipped Employees Under the Fair Labor Standards Act (FLSA)

Tipped employees are those who customarily and regularly receive more than $30 a month in tips. Tips actually received by tipped employees may be counted as wages for purposes of the FLSA, but the employer must pay not less than $2.13 an hour in direct wages.

Requirements

If an employer elects to use the tip credit provision the employer must:
  1. Inform each tipped employee about the tip credit allowance (including amount to be credited) before the credit is utilized.
  2. Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined.
  3. Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement.
If an employee's tips combined with the employer's direct wages of at least $2.13 an hour do not equal the minimum hourly wage ($5.15 an hour) the employer must make up the difference.

Dual Jobs
: When an employee is employed concurrently in both a tipped and a non-tipped occupation, the tip credit is available only for the hours spent in the tipped occupation. The Act permits an employer to take the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips, provided such duties are incidental to the regular duties and are generally assigned to such occupations. Where tipped employees are routinely assigned to maintenance, or where tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.

Retention of Tips: The law forbids any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. A tip is the sole property of the tipped employee. Where an employer does not strictly observe the tip credit provisions of the Act, no tip credit may be claimed and the employees are entitled to receive the full cash minimum wage, in addition to retaining tips they may\should have received.

Service Charges
: A compulsory charge for service, for example, 15 percent of the bill, is not a tip. Such charges are part of the employer’s gross receipts. Where service charges are imposed and the employee receives no tips, the employer must pay the entire minimum wage and overtime required by the Act.

Tip Pooling: The requirement that an employee must retain all tips does not preclude tip splitting or pooling arrangements among employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), busboys/girls and service bartenders. Tipped employees may not be required to share their tips with employees who have not customarily and regularly participated in tip pooling arrangements, such as dishwashers, cooks, chefs, and janitors. Only those tips that are in excess of tips used for the tip credit may be taken for a pool. Tipped employees cannot be required to contribute a greater percentage of their tips than is customary and reasonable.

Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, then the employer may pay the employee the tip, less that percentage. This charge on the tip may not reduce the employee's wage below the required minimum wage. The amount due the employee must be paid no later than the regular payday and may not be held while the employer is awaiting reimbursement from the credit card company.

Typical Problems

Minimum Wage Problems: Employee does not qualify as a “tipped employee”, tips are not sufficient to make up difference between employer's direct wage obligation and the minimum wage; employee receives tips only -- so the full minimum wage is owed; illegal deductions for walk-outs, breakages and cash register shortages; and invalid tip pools.

Overtime Problems: Failure to pay overtime on the full minimum wage; failure to pay overtime on the regular rate including all service charges, commissions, bonuses and other remuneration.
Off the Clock: Time spent doing work not requested by the employer, but still allowed, is generally hours worked, since the employer knows or has reason to believe that the employees are continuing to work and the employer is benefiting from the work being done. This time is commonly referred to as “working off the clock.”

Tipped employees who earn $2.13/hour in wages while their employer applies the tip credit to the remaining minimum wage amount are considered to be minimum wage employees.  Any off the clock work by these employees would reduce their wages to below minimum wage and would therefore be a failure by the employer to pay minimum wage.  

Uniforms: The FLSA does not allow uniforms, or other items which are considered to be primarily for the benefit or convenience of the employer, to be included as wages. Thus, an employer may not take credit for such items in meeting his/her obligations toward paying the minimum wage or overtime.

The FLSA does not require that employees wear uniforms. However, if the wearing of a uniform is required by some other law, the nature of a business, or by an employer, the cost and maintenance of the uniform is considered to be a business expense of the employer. If the employer requires the employee to bear the cost, it may not reduce the employee's wage below the minimum wage or cut into overtime compensation required by the Act.

For example, if an employee who is subject to the statutory minimum wage of $5.15 an hour is paid an hourly wage of $5.15, the employer may not make any deduction from the employee's wages for the cost of the uniform nor may the employer require the employee to purchase the uniform on his/her own. However, if the employee were paid $5.50 an hour and worked 30 hours in the workweek, the maximum amount the employer could legally deduct from the employee's wages would be $10.50 ($.35 X 30 hours).

The employer may prorate deductions for the cost of the uniform over a period of paydays provided the prorated deductions do not reduce the employee's wages below the required minimum wage or overtime compensation in any workweek.