Wage and Hour Law Blog

Sam Kane Meat Processing Workers Seek Wages

yezbak@yezbaklaw.com (Charles Yezbak) — Fri, 07 Mar 2008 14:18:45 -0500

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.

Restaurant Wait Staff Gets Stiffed

yezbak@yezbaklaw.com (Charles Yezbak) — Fri, 07 Dec 2007 14:36:08 -0500

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.

18 Tyson Overtime Lawsuit Consolidated

yezbak@yezbaklaw.com (Charles Yezbak) — Tue, 11 Sep 2007 20:42:22 -0500

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.”

Tyson Poultry Workers Win Appeal

yezbak@yezbaklaw.com (Charles Yezbak) — Fri, 07 Sep 2007 18:23:43 -0500

On September 6, 2007, the U.S. Court of Appeals for the Third Circuit held that workers at Tyson Foods, Inc.’s poultry processing plant in New Holland, Pennsylvania engaged in work under the FLSA by donning and doffing required sanitary and safety gear. In the case, De Asencio v. Tyson Foods, Inc. the Third Circuit court relied upon a 2005 U.S. Supreme Court decision, IBP v. Alvarez, which held that the FLSA required Tyson to pay its meat processing workers for similar donning and doffing work and all related waiting and walking time.

Yesterday’s ruling by the Third Circuit is an important victory for meat and poultry processing workers. The court held that the worker’s donning and doffing activities constitute work as a matter of law. Tyson and other employers in the meat and poultry processing industry choose not to pay workers for time spent putting on, taking off, and collecting required safety gear and equipment. After the Supreme Court’s decision in Alvarez it is clear that workers must be paid for this kind of donning and doffing. Hopefully, this latest courtroom defeat will finally end Tyson’s steadfast refusal to pay its workers for all hours worked.

The U.S. Department of Labor should be commended for its work on behalf of the unpaid workers. DOL lawyers involved in the appeal include: Howard M. Radzely, Solicitor of Labor; Steven J. Mandel, Associate Solicitor of Labor; Paul L. Frieden, Counsel for Appellate Litigation. Joanna Hull argued on behalf of the DOL.

Restaurant and Service Workers Top Worst Paying Job List

yezbak@yezbaklaw.com (Charles Yezbak) — Fri, 22 Jun 2007 19:00:19 -0500

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:

combined food preparation and service workers, including fast food
fast food cooks
dishwashers
dining room and cafeteria attendants and bartender helpers
hosts and hostesses, restaurant, lounge and coffee shop
counter attendants, cafeteria, food concession, and coffee shop
gaming dealers
shampooers
waiters and waitresses
ushers, lobby attendants, and ticket takers
amusement and recreation attendants
farm workers and laborers, crop, nursery, and greenhouse
cashiers
personal and home care aides
lifeguards, ski patrol, and other recreational protective service workers
parking lot attendants
pressers, textile, garment, and related materials
food preparation workers
bartenders
graders and sorters, agricultural products
maids and housekeeping cleaners
cooks, short order
child care workers
laundry and dry-cleaning workers
service station attendants
Service station attendants, the best of the worst, had a mean annual wage of $19,150.

Minimum Wage Rate Increased

yezbak@yezbaklaw.com (Charles Yezbak) — Thu, 31 May 2007 19:34:49 -0500

On May 23, 2007, Congress passed a bill increasing the minimum wage to $7.25 over the next two years. The raise in the minimum wage was part of a $120 billion war-spending bill, which dealt mostly with funding the Iraq war and was signed by President Bush on May 25. This is the first raise in the federal minimum wage since 1997 when the minimum wage reached its current rate of $5.15/hour. State and local governments can require that higher wages be paid to employees within their boundaries. The federal law covers almost all employees. This increase will affect wage earners who currently make less than $7.25 per hour. The first wage increase to $5.85 per hour will take effect in this summer. In the summer of 2008 the minimum wage will increase to $6.55 per hour. The new rate of $7.25 per hour will not be required until summer of 2009.

Koch Foods Agrees to Pay Unpaid Overtime Wages to Poultry Workers

yezbak@yezbaklaw.com (Charles Yezbak) — Thu, 31 May 2007 18:47:45 -0500

A poultry plant in Mississippi agreed to pay 174 workers $326,971 after an investigation by the DOL. Koch Foods, the company that owns and operates the plant, did not pay its employees the required overtime premium (time and a half) for all hours worked over 40 in a workweek. The company also neglected to pay some employees drive time for transporting crews to work sites in violation of federal law. Lawsuits and Department of Labor enforcement actions aimed at illegal pay practices in the meat and poultry processing industries are quite common. Typically, these claims relate to the failure to pay for all hours worked by the employees.

Servers and Other Restaurant Workers Are Getting Short Changed

yezbak@yezbaklaw.com (Charles Yezbak) — Thu, 26 Apr 2007 06:01:44 -0500

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.

Arkansas Workers Sue Tyson for Overtime Violations

yezbak@yezbaklaw.com (Charles Yezbak) — Wed, 25 Apr 2007 19:02:54 -0500

Employees from Tyson Foods, Inc. poultry processing plants in Arkansas filed a lawsuit against Tyson for overtime pay violations (Adams, et al. v. Tyson Foods, Inc., U.S. District Court, Western District of Arkansas). The lawsuit claims that Tyson violated the FLSA by failing to pay its employees for the time spent donning and doffing required gear and equipment, as well as time spent walking, waiting, and performing other job duties “off the clock.” Tyson is facing lawsuits throughout the U.S. for alleged FLSA overtime pay violations at its chicken processing and meat processing facilities.

Tyson and others in the poultry and meat processing industries have longstanding differences with workers and the U.S. Department of Labor over industry pay practices. These differences appeared to be finally resolved when the U.S. Supreme Court ruled in favor of workers in Alvarez v. IBP. Still IBP (now Tyson) and other employers refuse to pay workers for time spent donning and doffing required gear and equipment. According to the Department of Labor workers should be paid for this time.

Timeshare Salespeople Are Entitled to Overtime Pay

yezbak@yezbaklaw.com (Charles Yezbak) — Tue, 24 Apr 2007 12:21:12 -0500

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).

Wal-Mart Violates Overtime Laws; Settles With DOL

yezbak@yezbaklaw.com (Charles Yezbak) — Wed, 18 Apr 2007 16:27:06 -0500

Wal-Mart recently settled a case with the U.S. Department of Labor involving violations of the FLSA’s overtime provisions for $33 million. The case involved 87,000 salaried and hourly employees who were not paid at the proper overtime rates. The retail giant improperly calculated overtime payments by failing to include bonus payments into the employees pay rate when calculating overtime premium. The agreement also addresses payment of overtime to certain non-exempt salaried interns, manager trainees, and programmer trainees. While violations of this nature are common, Steven Mandel, an associate solicitor at the Department of Labor, said "these are serious violations."

Wal-Mart, facing approximately 70 lawsuits for wage and hour violations throughout the country, reported these violations to the Department of Labor and then settled with the DOL. A spokesman for Wake-Up Wal-Mart, Chris Kofinis, criticized the agreement stating, "How do you negotiate a deal on behalf of workers when workers aren't included in the negotiations." The employees had no independent legal representation in the settlement process. As a result, Wal-Mart was likely able to settle the case for less than their actual liability. Wal-Mart also avoided assessment of fines or penalties.

Prince Faisal and the Underpaid Security Guards

yezbak@yezbaklaw.com (Charles Yezbak) — Mon, 16 Apr 2007 19:41:28 -0500

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.

Meat Processing Facilities

techsupport@lexblog.com (LexBlog) — Fri, 06 Apr 2007 14:52:30 -0500

Meat processing facilities frequently fail to comply with the FLSA. Typically, employers fail to pay employees for the time spent donning (putting on) and doffing (taking off) required sanitation gear and personal protective equipment.

Employers in the meat processing industry must capture and pay employees for all time spent donning and doffing required sanitary/safety gear and equipment. These employers must also pay for all the related walking and waiting time as well as other related duties (such as sharpening knives or sanitizing equipment).

Employers in this industry also frequently fail to pay their employees for production work, and donning and doffing, performed during their meal periods.

Tipped employees

techsupport@lexblog.com (LexBlog) — Fri, 06 Apr 2007 14:25:21 -0500

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:

Inform each tipped employee about the tip credit allowance (including amount to be credited) before the credit is utilized.
Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined.
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.