Miami Restaurant Law

Law Firm of Lowell J. Kuvin and Morgan & Morgan File Suit Against NOBU Restaurant in South Beach

2010-05-29T18:06:00.000-07:00

The law firm of Lowell J. Kuvin and Morgan & Morgan have filed suit in federal court against NOBU restaurant located in South Beach. The complaint alleges two violation of the Fair Labor Standards Act (“FLSA”) in that NOBU did not properly pay its servers overtime and it allowed managers and kitchen staff to participate in the tip pool. The restaurant has yet to file a response to the claims made by the two former employees.

Restaurants in Florida are allowed to pay employees who receive tips as little as $4.23 — less than the federal and Florida minimum wage of $7.25 per hour.

To apply the so-called tip credit, employers are not permitted to share tips among managers, according to Lowell J. Kuvin, a lawyer for the plaintiffs. The lawsuit asserts that NOBU did just that by sharing tips with floor managers, or floor captains.

“They were basically supplementing managers’ salaries from waiters’ pay,” Mr. Kuvin said. “They’ve created a ridiculous subterfuge, saying, ‘If we call them a floor captain then he’s not a manager.’ It’s a thinly veiled attempt to get around the law.”

The definition of who is properly considered a tipped employee is an interesting one. Along with waiters and bartenders, maître d’s, hosts, sommeliers and busboys are generally considered entitled to share in tips, while a floor manager who simply directs waiters generally is not.

“It’s question of service,” Mr. Kuvin said. “A maître d’ that actually serves you” — even if it means clearing a single plate if the waiter is busy, for example — is entitled to tips, he said.

These are incredibly hard–working waiters,” Mr. Kuvin said. “The standards to get a job at NOBU is pretty high.”

A similar suit was filed against NOBU and two sister restaurants in New York state. That suit was settled before it went to trial for approximately $2.5 million.

Gov. Crist Signs Bill To Limit Slip-Fall Lawsuits

2010-04-14T18:02:00.000-07:00

Governor Charlie Crist has signed a bill that will make it harder to win slip-and-fall lawsuits against Florida businesses. The law goes into effect July 1, 2010.

The new law places the burden of proof on the plaintiff; victims will be required to prove a business knew or should have known a dangerous condition had existed for a sufficient time to have it fixed or removed, or that it was a foreseeable hazard.

It will undo a 2001 Florida Supreme Court ruling that removed a similar requirement from state law. That decision came in the case of a woman who slipped and fell in a Publix grocery store on a piece of a banana

Close

Miami Commissioners Advance New Alcohol Rules

2010-03-30T09:31:00.000-07:00

Businesses that intend to serve alcohol past 3 a.m. in most parts of Miami will need to make their case to the city commission.

Owners of bars, nightclubs and other businesses that want to serve liquor after 3 a.m. in most parts of Miami will have to get permission from the Miami City Commission.

With little discussion, four of the five commissioners Thursday tentatively approved a proposed ordinance -- part of a package of zoning revisions as the city commission moves a step closer to enacting Miami 21, the city's new zoning code, in May.

Commissioner Frank Carollo was absent and did not vote on the measure. It will come up for a final vote April 22.

Under the current rules, Miami's zoning board handles all requests from businesses wishing to open an establishment serving liquor in the city.

The new ordinance would work exactly the same way -- unless bars, restaurants, hotels, bottle clubs and private clubs want to serve alcohol after 3 a.m.

But businesses in some parts of Miami -- such as downtown, the Southwest Overtown/Park West and the Omni CRA areas, will not have to get commission approval.

As for Coconut Grove, where the closing time of bars, restaurants, hotels and nightclubs has been a hot topic, the proposed ordinance would not change the 3 a.m. last call for businesses within the central Grove business district.

In June 2008, Commissioner Marc Sarnoff, who represents the Grove, led a successful effort to roll back last call from 5 a.m. to 3 a.m.

The move has split the community.

Patrick Sessions, a chairman of the Coconut Grove Village Council, asked the commission to defer any vote on the measure until the council could get input from residents.

In his opinion, the new measure is a bad idea.

``This ordinance politicizes the approval process for 5 a.m. clubs, which is something we don't need,'' Sessions said.

John El-Masry, the owner of Mr. Moe's Restaurant & Bar, said the 3 a.m. cutoff in the center Grove has been ``devastating.''

``I had 120 employees, now I'm down to 56 employees and my business has gone down 40 percent,'' El-Masry said.

``I'm pleading with you guys for parity. If you make it 3 a.m., make it 3 a.m. for everybody,'' he said.

At least one Grove resident, Nathan Kurland, defended the rollback.

``Our crime is down, our vandalism is down, our noise is down,'' Kurland said.

``Thank you for treating us differently in the Grove.''

After the vote, Commissioner Richard Dunn asked City Attorney Julie Bru how he could implement a 3 a.m. last call in his district, which includes neighborhoods such as Little Haiti, Overtown and Liberty City.

``I know this initiative is not popular,'' Dunn said.

``I don't care. I'm greatly disturbed by the crime in my district.''

BY TANIA VALDEMORO
tvaldemoro@MiamiHerald.com

Miami-Dade Has New Wage Theft Ordinance

2010-03-27T15:33:00.000-07:00

Miami-Dade has become the first county in the nation to adopt a countywide wage theft law, and hopefully it will not be the last. The Ordinance, which became effective on March 1, 2010, applies to private sector employees and employers, prohibits wage theft, and provides administrative procedures and private causes of action. An employer found to be in violation of the wage theft Ordinance will be required to pay the actual administrative processing and hearing costs as well as restitution to the employee, which would include back wages owed as well as liquidated damages of double that amount and possibly treble damages.

What this means for employers in Miami-Dade County is that a simple oversight or misunderstanding regarding which employees can be classified as exempt or as independent contractors under the Fair Labor Standards Act ("FLSA"), may now lead to a finding that the employer has committed "wage theft."

According to a report from the Office of Commission Auditor, which accompanied the Ordinance, for the past five years the Southern District of Florida (the federal trial court with jurisdiction over Miami-Dade County) has had a disproportionately high number of FLSA cases filed. Nevertheless, the summary that accompanied the Ordinance reflects the Commission's belief that the requirement for employees to opt-in to a FLSA class action lawsuit hampers their ability to seek remedial action in courts. Thus, the summary states that the Ordinance "is intended to be a tool to root out violations of U.S. labor laws occurring in Miami-Dade County."

According to the Ordinance, a "wage theft violation" occurs when an employer fails to pay any portion of the wages due to an employee, according to the wage rate applicable to the employee, within a reasonable time from the date on which that employee performed the work for which the wages are compensation. The Ordinance defines reasonable time as no later than 14 calendar days from the date the work was performed; however, this time may be modified to no longer than 30 days by an express agreement between the employer and employee that has been reduced to writing and signed by the employee.

The Ordinance defines wage rate as "any form of monetary compensation which the employee agreed to accept in exchange for performing work for the employer, whether daily, hourly, or by piece." Thus, this provision could be interpreted more broadly than the employee's "regular rate" under the FLSA. Once an employee brings a timely claim that wage theft has occurred, the accused employer will have to defend itself before a county-appointed hearing examiner.

The Ordinance does not set out requirements or qualifications a person must possess to be appointed a hearing examiner; thus, it is possible the hearing examiner may not be a judge or attorney or have a background in labor and employment law. The mechanics of the hearing, as set out in the Ordinance, will be like a trial, including discovery in accordance with the Florida Rules of Civil Procedure. Employers will have to be very careful with this process because an employee can choose at any time to stop the proceedings under the Ordinance and file a civil action in State or Federal Court (for violation of state or federal wage/hour laws, which would likely be the basis for the wage theft allegation).

Also, should a hearing examiner find the employer in violation of the wage theft Ordinance, the hearing examiner can award damages of up to three times the amount of the unpaid wages.

Employers' Bottom Line: Employers in Miami-Dade County need to be more vigilant than ever to ensure that employees are properly classified and promptly paid for all work performed. A stringent review of employees currently classified as exempt or as independent contractors, conducted at the direction and supervision of experienced employment law counsel, is recommended to ensure complete compliance with the FLSA.

Employers should also set out in writing when wages will be paid and have the employees sign this written timeline of payments. (Note that the Ordinance only permits the employer to extend the time for payment of wages to up to 30 days from the date the work is performed and then only with the written agreement of the employee.) Additionally, employers will need to review their time keeping polices and make sure that accurate time records are being kept and that all time worked by employees is being recorded. While most employers only keep time records for nonexempt employees, it may be prudent to require exempt employees to do so as well. If a hearing officer determines that an employee is improperly classified as exempt, the employer will have the burden of proving actual time worked. Without accurate records, the employee can estimate the time and the hearing officer will base the wage calculation on that estimated time.

Do I Have The Right To Know Where My Tips Go?

2010-03-06T11:14:00.000-08:00

Do I Have The Right To Know Where My Tips Go?

Many hospitality workers rely on tips as their main source of income and restaurants make up the bulk of the employers who hire them. The Fair Labor Standards Act (“FLSA”) allows an employer to pay its employees a reduced hourly wage if they make enough in tips to bring them to the level of minimum wage. The maximum amount of “tip credit” an employer is allowed to take is $3.02/hr.

Many restaurants have policies that servers must share their tips with other employees such as bussers and bartenders. Policies which require mandatory sharing of tips is proper if the person who gets a taste of the server’s tips normally receives at least $30 in tips monthly and whose job description entails contact with the customer.

Becoming more and more popular is the practice of pooling tips for the entire restaurant and then distributing them based on a points system. The idea behind a “pooled restaurant” is that the service will be better since everyone on the floor is participating in the tip the customer leaves. A majority of “pooled restaurants” require that all of the tips (including cash) be deposited with the house so they can be tallied and then distributed, usually at a later date. Some states require that the entire staff must agree to be pooled. Others states such as Florida have no laws whatsoever and employers are free to make the decision without any employee input. But if the house is in charge of the tips, some in cash, how does everyone know there is no funny business going on?

The number one question I get from prospective clients is “Do I have the right to know where my tips go?” My answer is, Yes. However, just because you have that right doesn’t always mean you can exercise it easily. I am not aware of any method, other than a lawsuit, that a tipped employee can use to exercise their right to know.

Sure you could always ask for an accounting from the manager or owner, but without the monthly income reports there would not be any way to verify the amounts were even close to being accurate. It should be easy to verify the credit card tips, but what manager is going to hand over all of the restaurant credit card receipts for you to add them up? And what about the cash tips? I know of several pooled restaurants that only accept cash. Why they do this I am not exactly sure, but I have pretty good idea why (IRS?) and you expect the employees to trust them not to steal from them?

The only idea that I can come up with to solve this problem is an amendment to the laws which regulate the industry and/or the FLSA. If a business such as a restaurant wants to be pooled then make them register with a local or state government agency and pay a yearly fee. The agency can then require the business to inform its employees of the policy in writing and act as an overseer should there be an issue with the distribution of tips.

I plan to put together a group of like minded persons and begin a non-profit lobbying group. The group’s main purpose will be to author and then propose legislation to our local, state, and federal government representatives to secure the rights of hospitality workers throughout the United States. The first area of concern will be the transparency of tip collection and the allocation of those tips in pooled restaurants.

I have spent many hours over the last few weeks trying to come up with a name for the “cause.” Please feel free to suggest a name. You can email me your suggestions to me at lowell at kuvinlaw.com If your name suggestion is used, you will receive a permanent acknowledgment on the website.

Florida Tops List Of Hot Spots For New FLSA Lawsuits

2010-02-10T08:15:00.000-08:00

By Ben James

Law360, New York (February 09, 2010) -- The number of new Fair Labor Standards Act
filings in New York and Texas rose in 2009, but neither state came close to rivaling the
volume of new FLSA cases in Florida. Law360 ranked the five busiest federal courts for
wage-and-hour litigation and found the Sunshine State to be a hotbed of plaintiffs bar
activity.

The U.S. District Court for the Southern District of Florida saw 1,252 new FLSA cases show
up on its docket — either through removal, or the filing of a brand new case — in the 2009
calendar year, according to PACER. The Middle District of Florida wasn't far behind, with 776
new filings.

According to Michael Casey, managing shareholder of EpsteinBeckerGreen's Miami office,
just a handful of plaintiffs firms — including Morgan & Morgan PA, the Pantas Law Firm PA
and The Shavitz Law Firm PA — were responsible for the bulk of FLSA filings in the state.
Some of the suits target large companies, but the majority of Florida's FLSA litigation is
aimed at smaller employers, particularly those in the hospitality industry, according to
Casey.

"I would venture to say that the vast majority of restaurants in Florida are violating the
wage-and-hour law with respect to things like tip credit," Casey said.

Big companies have the resources and wherewithal to put up a big fight when sued, so
Florida's wage-and-hour plaintiffs bar has opted for a "volume approach," which entails
bringing a slew of smaller cases against smaller defendants, he said.

"There are so many hidden pitfalls and technical requirements in the FLSA that the smaller
employers are just unaware of," Casey said. "They lack access to sophisticated advice."
Florida is home to a lot of low-wage, hourly workers, and while many companies have
operations in the state, few have headquarters there, meaning that the workers' compliance
with time-keeping policies may not be closely supervised, added Anne Marie Estevez, a
Miami-based partner with Morgan Lewis & Bockius LLP.

The second-busiest venue for FLSA cases is the U.S. District Court for the Southern District
of New York, which logged 361 new filings in 2009. The U.S. District Court for the Eastern
District of New York came a close third, with 300 new wage-and-hour suits.

New York's four district courts saw a combined 695 new FLSA cases in 2009, up from 547
new suits in 2008 and 388 in 2007.

Lawyers pointed to the New York Labor Law's six-year statute of limitations — double the
three-year statute of limitations for a willful FLSA violation — as one factor behind the rise
of FLSA suits in the state.

Plaintiffs in New York are filing hybrid class and collective actions that are lodged in federal
court under the FLSA but include claims under the state's labor law that permit them to take
advantage of that relatively lengthy statute of limitations, attorneys said.
Restaurants in particular have become a frequent target in those suits, said Orrick
Herrington & Sutcliffe LLP partner Tim Long.

Any state that has wage-and-hour laws that go beyond the FLSA in terms of employee
protections naturally piques the plaintiffs bar's interest, explained Long, adding that New
York has not only about 19.5 million residents, but also plenty of plaintiffs lawyers with class
action expertise.

Though some lawyers argue that opt-in collective actions and opt-out class claims are
inherently incompatible, federal courts in New York have generally been receptive to the
concept of hybrid FLSA/NYLL suits, said Tim Selander, an attorney with Nichols Kaster PLLP,
a firm that represents plaintiffs.

"New York courts have been pretty consistent in saying you can bring an FLSA action with a
Rule 23 state law action," Selander said.

Jackson Lewis LLP partner Paul DeCamp added that cases involving hybrid claims were
starting to make their way up to appeals courts, so some meaningful guidance on those
types of cases might be in the cards.

Another factor in the increased number of wage-and-hour actions in New York's federal
courts is the low number of plaintiffs pursuing cases in state courts relative to their
California brethren, attorneys said. That's due in part to the fact that New York's state law
does not give plaintiffs the option of bringing the plethora of pay practice-related claims that
California's labor law does, Selander said.

With such employee-friendly state laws, plaintiffs in California have little incentive to file
wage-and-hour claims in federal court, Estevez noted.

"Some California lawyers have decided they really don't need the FLSA," she said.
The trend is borne out in the statistics, with the number of new FLSA cases filed in the
Golden State's four federal district courts in 2009 totaling just 298, dipping from 351 the
previous year.

However, when both state and federal wage-and-hour suits are taken into account, Florida
and California are on par with respect to the total volume of cases, lawyers noted.
Rounding out the top five busiest federal courts for wage-and-hour litigation is the U.S.
District Court for the Southern District of Texas, with 231 new filings. Statewide, new FLSA
cases rose to 534 in 2009, up from 348 in 2008.

Estevez said members of the zealous and well-organized plaintiffs bar, which lawyers say is
a major force behind the proliferation of wage-and-hour actions in Florida, had now set their
sights on Texas.

Overall, the number of new FLSA cases in federal courts across the country jumped to 6,165
in 2009, up from 5,227 in 2008, according to PACER.

Some lawyers are skeptical that the dramatic jump in wage-and-hour activity over the past
several years can be maintained in the long term, but they expect to keep seeing high levels
of wage-and-hour filings in the short term.

The FLSA, which was written in the 1930s, has gray areas that companies can potentially
exploit to boost profits at the expense of wages, Selander said.

"As long as those gray areas exist, there are going to continue to be more FLSA cases filed,"
he said.

Undocumented Workers Can Sue Under The FLSA

2010-02-07T19:49:00.000-08:00

A federal district judge in Miami has ruled that undocumented aliens working in this country have the same right to file court claims for overtime compensation and liquidated damages under the Fair Labor Standards Act (FLSA) as workers who are in this country legally. Galdames, et al. v. N & D Investment Corp., No. 08-cv-20472-MGC, 21 Fla. L. Weekly Fed. D529a (S.D. Fla. 2008).

Rejecting an employer’s request for summary judgment, United States District Judge Marcia G. Cooke said the employer’s contention that two of its former employees who sued the company “are illegal immigrants and therefore [are] not entitled to FLSA protections” was wrong.

The federal Fair Labor Standards Act requires employers to pay one-and-a-half times the regular hourly pay rate to non-exempt employees for hours worked in excess of 40 in any workweek.
Plaintiffs Jacqueline Galdames and Guillermo Osorio worked for a Miami commercial laundry business called “Mr. Clean Laundry,” where their work duties included washing, drying, pressing, and folding linens and clothing. They sued their former employer for overtime pay and liquidated damages.

Sushi Chefs CAN Participate in Tip Pool

2010-01-26T11:38:00.000-08:00

The DOL found that itamae-sushi chefs and teppanyaki chefs were tipped employees under the FLSA, eligible to participate in employer-mandated tip pools.

Section 3(t) of the FLSA defines tipped employees as “any employee engaged in an occupation in which he/she customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t). Section 3(m) allows tip-pooling among employees who customarily and regularly receives tips. 29 U.S.C. § 203(m); see also 29 C.F.R. § 531.54.

Itamae-sushi chefs and teppanyaki chefs have direct contact with customers, at the bar counter area (itamae-sushi chefs) and at customer tables (teppanyaki chefs). In support of its opinion, the DOL cited its “longstanding position that counter persons who serve customers may participate in tip pools. Citing FLSA Field Operations Handbook § 30d04(a); Wage and Hour Opinion Letter 1/25/83 (waiter chef who brings food order from kitchen to table and cooks it on hibachi grill in front of customers may share in tip pooling).

Employers should note that not all chefs and cooks may participate in tip-pooling arrangements. Only those who have regular customer contact may do so. Similarly, servers, bellhops, bus persons, counter persons and service bartenders may participate in tip-pooling arrangements. Dishwashers, for example, cannot participate in tip pools. Employers also should note the variations in state laws regulating tip-pooling arrangements. See, e.g., California Division of Labor Standards Enforcement Opinion Letter dated 9/8/05 (tip pool should include only “those employees who contribute in the chain of the service bargained by the patron,” and should exclude any supervisory employee “with the authority to hire or discharge any employee or supervise, direct, or control the acts of employees”).

OSI Restaurants settles suit for $19M

2010-01-02T19:09:00.000-08:00

TAMPA, Fla. (Dec. 30, 2009) Outback Steakhouse parent company OSI Restaurant Partners LLC has agreed to pay $19 million to settle a class-action lawsuit filed by women claiming that corporate promotions were tainted by sex discrimination.

The Tampa-based restaurant operator said this week that the consent decree with the U.S. Equal Employment Opportunity Commission “includes no finding of fault on the part of Outback.”

The lawsuit was originally filed in September 2006 on behalf of two Colorado women, Rosalind Martinez and Mindy Byers. The suit alleged they were not promoted beyond low-level restaurant management jobs while less qualified men were made “managing partners,” who could share in restaurant profits. Female employees “hit a glass ceiling at Outback and could not get promoted to the higher-level profit-sharing management positions in the restaurants,” the EEOC lawsuit alleged.

The settlement could include numerous female employees at various locations throughout the United States. The Outback Steakhouse chain totals about 971 restaurants, of which 792 are based in the United States. OSI also operates and franchises the Carrabba’s Italian Grill, Bonefish Grill, Fleming’s Prime Steakhouse & Wine Bar and Roy’s Hawaiian Fusion Cuisine brands.

Liz Smith, the new chairman and chief executive of OSI, said in a statement: “I am very pleased the company and the EEOC have resolved this legacy issue. There is no glass ceiling at OSI, and we do not tolerate discrimination in any form.”

The EEOC also claimed women were denied favorable job assignments, particularly kitchen management experience, which was required for employees to be considered for the top management job in the restaurants.

In addition to the $19 million in the four-year consent decree, which was signed by Federal Court Judge Christine M. Arguello, Outback must:

# Institute an online application system for employees interested in managerial and other supervisory positions
# Employ a human resource executive in the new post of vice president of people
# Hire an outside consultant for at least two years to determine compliance with the decree and analyze data from the online application system to determine if women are being provided equal opportunities for promotion
# Report every six months to the EEOC on progress.

OSI said Tuesday that the consent decree “reflects the policies, procedures and systems that were developed by Outback to provide all employees the opportunity to express interest in and be considered for promotions.”

Smith said further: “I have a profound commitment to ensuring not only equal, but very compelling and rewarding employment opportunities for all individuals and I look forward to building on the processes already in place at Outback to ensure we live up to that standard every day.”

The company, which said it decided to settle the lawsuit with funds provided by insurance rather than litigate the case further, said it was “pleased that the EEOC recognizes [OSI’s] electronic registry as an important tool to provide and track equal employment and advancement opportunities for all employees.”

Mary Jo O’Neill, a regional attorney in the EEOC’s Phoenix district, which covers Colorado, said, “We are pleased with the initiatives that Outback has agreed to in this settlement and look forward to seeing its efforts to promote women into management positions realized.”

Rita Byrnes Kittle, a senior trial attorney in the agency’s Denver field office, said, “We are particularly pleased about Outback’s commitment to a new process for employees to apply for promotion online and for hiring managers to make their selections from the online applications. We think this new process will help give women a fair opportunity to advance in the company.”

An administrator will set up a claims process for women who might be eligible for relief in the $19 million pool provided in the consent decree. Letters will be sent to women who worked in corporate Outback restaurants from 2002 to the present and have at least three years with the company.

Stephanie Struble, the EEOC Denver trial attorney who worked with Byrnes Kittle on the case, said, “We encourage women who believe they were discriminated against by Outback to come forward and complete the claims form to obtain monetary relief.”

Moosehead Attackes New York Restaurant Patron

2009-12-30T18:24:00.000-08:00

Beware of falling moose!

A Manhattan woman has sued a lower East Side restaurant, claiming she was conked in the head by a moosehead that fell off a wall.

Raina Kumra, 32, sued White Slab Palace, a Scandinavian-inspired hipster hangout on Delancey St., for an unspecified amount, charging the owners were "grossly careless" in mounting the taxidermy wildlife.

"It was the bar's fault," Kumra told the Daily News Tuesday. "I was injured and in an embarrassing way."

The 150-pound moosehead with antlers spanning over 3 feet was the centerpiece of the restaurant's back party room.

In a suit filed in Manhattan Supreme Court, Kumra said she was standing under the moosehead about 1 a.m. on Oct. 4 when it came dislodged and crowned her.

Named in the suit is Annika Sundvik, a Manhattan art gallery owner who opened White Slab Palace in February.

The restaurant "had a duty to provide ... an environment free from falling objects," the suit charges.

Kumra said she suffered a concussion when clobbered on the head in the party room packed with patrons.

Since the incident, Kumra has lost cognitive skills and suffered chronic neck pain, fatigue, dizzy spells and anxiety from mounting medical expenses, the suit says. Sundvik, who also owns Good Bar & Grill in Chinatown, did not immediately return calls for comment. A manager at the restaurant refused to comment, saying she hadn't heard of the suit.

Meanwhile, Richard Santomauro, owner of Wildlife Taxidermy in Wall, N.J., insisted Kumra was not hit by a moosehead.

"That's a caribou," he said after viewing a photo of the stuffed head.

With Katie McFadden

mgrace@nydailynews.com

With Katie McFadden

Cheesecake Factory Settles EEOC Suit in Case of Severe Same-Sex Sexual Harassment

2009-12-03T15:51:00.000-08:00

Cheesecake Factory Settles EEOC Suit in Case of Severe Same-Sex Sexual Harassment

Restaurant Chain Will Pay $345,000 to Six Male Employees Who Agency Alleged Were Repeatedly Sexually Assaulted

PHOENIX – Cheesecake Factory, Inc., a nationwide restaurant chain that touts itself as a place to create “lasting memories with family and friends,” will pay $345,000 and furnish other relief to settle a sexual harassment suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that six male employees were subjected to repeated sexual harassment at the company’s Chandler Mall location.
In its lawsuit (EEOC v. Cheesecake Factory, Inc., CV 08-1207-PHX-NVW), the EEOC charged that Cheesecake knew about and tolerated repeated sexual assaults against six male employees by a group of male kitchen staffers. The company denied the allegations. However, according to the agency, the evidence overwhelmingly showed that the men suffered sexually abusive behavior, including abusers directly touching victims’ genitals, making sexually charged remarks, grinding their genitals against them, and forcing victims into repeated episodes of simulated rape. Managers witnessed employees dragging their victims kicking and screaming into the refrigerator, the EEOC charged.
Complaints to virtually every manager at the restaurant were made, but they never put a stop to it. Victims felt helpless, the agency said, and one finally had to call the police.
Sexual harassment violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a pre-litigation settlement.

Mr. Chow Sticks It To Philippe Chow Again; For TEN Million!!

2009-11-25T13:53:00.000-08:00

Really, the insane Chow Wars are the gift that keeps on giving. The latest, via Eater Miami is that Mr. Chow was back in a Miami court today to file an amended complaint against all the Philippe restaurants. The new complaint merges the Florida and California cases and asks to be heard by a single court. Plus, four ex-Mr. Chow chefs have been named as new defendants because—according to the complaint—they were allegedly lured by Philippe (!!) to share trade secrets and other valuable confidential info they gained during their tenure at Mr. Chow. Team Chow says they stand by all of the claims in the lawsuit and will pursue damages in excess of $10 million. Follow along the fun at Eater Miami.

Waitresses at Hooters file suit for having to buy skimpy, sexy outfits with own money

2009-10-29T19:39:00.000-07:00

It costs Hooters girls less than $20 to get sexy - but it may end up costing the tacky restaurant chain a lot more.

Two waitresses filed a class-action suit on Thursday in Brooklyn Federal Court charging that Hooters failed to reimburse them for buying and cleaning the barely there uniforms with the company logo.

Gina Rosati of Copiague, L.I., and Amy Fredericks of Bayside, Queens, said they were forced to fork over $5.45 for orange hot pants, $6 for the tight-fitting Lycra tank top, $3.25 for a pouch, $2.50 for suntan pantyhose and $2.25 for thick white socks.

Under state labor law, an employer must provide its workers with a workplace uniform if they're not regular street duds.

The women's lawyer, Louis Pechman, said the Hooters' practice is patently illegal.

"I don't think that could confuse the Hooters uniform clothes as part of someone's ordinary wardrobe," Pechman said.

Pechman said the cost may be minimal - but the law is the law.

Rosati, who works at the Hooters in East Meadow, L.I., and Fredericks at the restaurant Fresh Meadows, Queens, declined requests for interviews.

The company's Web site adds that the Hooters Girl uniform also consists of "a smile," but there's apparently no charge for that.

A call for comment to Strix LLC which owns and operates the Hooters restaurants on Long Island was not returned.

Anyone Remember Thai Toni?

2009-09-10T10:58:00.000-07:00

Miami Beach Restaurant Operator To Pay $15,000, Follow Uniform Tipping Policy To Settle Charges

TALLAHASSEE -- The operator of a Miami Beach restaurant will pay $15,000 and follow a uniform tipping policy to settle charges that he unlawfully added a gratuity to the check of two patrons because of their race, Attorney General Bob Butterworth announced today.

Hiromi Takarada, acting manager of Thai Toni Restaurant, also agreed to submit himself and his employees and corporate associates to training about their responsibilities under state and federal nondiscrimination laws and regulations.

The $15,000 will be paid to the Florida Commission on Human Relations, which is to use the money in part to design, develop and conduct the nondiscrimination training for Thai Toni personnel. The remainder of the money will be used to develop an educational program, seminar or conference to be offered to businesses in Miami-Dade County to instruct them of their nondiscrimination responsibilities and to advance racial harmony. The program will be developed with input from the Miami chapter of the National Association for the Advancement of Colored People.

"This agreement not only corrects a serious problem at one restaurant, it provides the resources to instruct other businesses on proper behavior toward their customers," Butterworth said.

Butterworth on November 8 charged Takarada with violating the state's Deceptive and Unfair Trade Practices Act when he added a 15 percent gratuity to the check of diners Charles Thompson and Theresa L. White, both of Miami. Takarada told Thompson and a police officer that the automatic tip was added because the customers were black and it was his belief that blacks do not tip well, Butterworth said.

Under the agreement, Thai Toni will follow a policy under which a 15 percent gratuity will be added to every patron's bill and customers will be advised they can either increase or decrease that amount. The uniform tipping policy will be duly noticed at the restaurant as required by state law.

The agreement also covers Takarada's wife, Hatsuse Takarada, and other businesses the couple operate. The agreement was handled by Assistant Attorney General Terrence Smith.

Hooters Sued by Hooter's Girls

2009-08-30T12:19:00.001-07:00

More than a dozen former and current "Hooters Girls" from the District, Maryland and South Carolina have sued the chicken wing giant for violating minimum wage laws.

The lawsuit filed in the District's federal court late last week, claims the company counted the girls' tips toward the minimum wage and then violated the law by requiring them to pay the company for their uniforms, among other allegations.

The scheme "essentially amounted to kickbacks," to Hooters, said Heidi Burakiewicz, the attorney for the 13 Hooters waitresses. Hooters did not respond to requests for comment.

The waitresses were required to buy their shirts, shorts, aprons, socks, shoes and pins from the company, the lawsuit alleges. The biggest ticket item, however, were nylons for which Burakiewicz said the company charged $4 a pair.

"They're very distinctive pantyhose," Burakiewicz said. "Under no circumstances would you see someone wearing them on the street." The pantyhose wore out quickly, and the girls were often buying new pairs, she said.

Federal law allows an employer to pay a tip-earning employee $2.13 an hour, which the lawsuit claims Hooters did. But, if the employer chooses that path, it can't then charge for uniforms.

An employer paying the lower hourly wage also can't require employees to pool their tips and then have them include typically non-tip-earning employees in the payout. The lawsuit claims that Hooters did just that, making the waitresses share their tips with dishwashers and other kitchen employees.

The suit also alleges the Hooters Girls were not paid overtime for the hours it took to open and close the restaurants, and for the meetings they attended. The nationwide restaurant chain also deducted from the girls' wages the cost of customer "walk-outs," the suit said.

This is the second lawsuit in recent months filed by Hooters Girls alleging the company violated minimum wage laws.

In May, eight girls filed a suit against the company in California claiming their tips were used in a similar scheme.

Burakiewicz said her law firm, Woodley & McGillivary, is planning to ask the court to create a nationwide class action suit.

Restaurant Policies Punish Tipped Employees

2009-08-29T11:45:00.000-07:00

Things have been getting busy around the office. With the downturn in the economy, it seems that many restaurant owners and managers are looking for a way to lower costs and bump up profits. Unfortunately, it seems that wait staff and other tipped employees are the first to suffer.

My first thought on this trend is for restaurant management to understand that your most important employees are the ones that have direct contact with your customers. If your front of the house (FOH) staff is unhappy, the image they transmit to the customers is the same and that hurts business.

My second thought on the trend is if you need to cut costs, do not start with staff who are making only $4.23/hr. (the new minimum wage for tipped employees in Florida). After 25 years in the restaurant business I have found that the best way to cut costs is to keep a closer eye on the kitchen. One over-cooked 16oz. NY Strip will set you back $6.50 just for the steak. Put another properly cooked steak on the plate and it cost you $13.00 just in meat to make $15.95.

Although the state of Florida does not have very strong laws to protect hospitality workers, the Federal government does. There are very strict laws as to who may participate in tip pools and the proper rate which needs to be paid for overtime.

The Law Office of Lowell J. Kuvin specializes in protecting hospitality workers rights throughout the entire state. Some of the recent cases we are working on include:

• Servers working at a restaurant were not paid any hourly wages and were required to contribute each week to the money paid to the restaurant cleaning crew.

• Servers at a country club were required to pool their tips in which the salaried management received a large portion.

• Servers at a restaurant were not allowed to clock in until they were sat their first table. They were required to be at the restaurant 1 hour prior to opening and were not paid for doing their set up side work. Additionally, two of the servers claim they were sexually harassed by the kitchen staff and management. When they complained to management they were told to toughen up. SETTLED

If you think the restaurant you work at is breaking the law, please contact our office for free to discuss the issues.

Law Office of Lowell J. Kuvin
22 NE 1st Street Suite 201
Miami Florida 33132

Tel: 305.358.6800
Fax: 305.358.6808
Toll: 888.KUVINLAW (588.4652)
lowell@kuvinlaw.com

Snapper on your plate may be an impostor

2009-08-24T17:25:00.000-07:00

Genetics professor Mahmood Shivji didn't get into DNA research to strike fear in the hearts of restaurant owners and chefs.

But the Guy Harvey Research Institute, which he heads, is a virtual CSI: Seafood lab these days. The widespread -- and illegal -- practice of fish substitution at restaurants has placed Shivji's marine life genetics expertise in high demand.

In the last two years, Shivji has analyzed upward of 100 restaurant plates from across the country, more than half the time proclaiming that the dish was not the grouper or snapper specimen that diners thought they were eating. Instead, restaurants secretly served up cheaper fish such as catfish or tilapia.

``It's consumer fraud,'' said Shivji, who teaches at Nova Southeastern University. ``You're paying for item X and usually grouper and red snapper are on the higher end of the price list.''

With domestic grouper costing restaurants $11 or $12 a pound -- and imported catfish available for a mere $2.50 a pound -- unsavory chefs can profit handsomely from this unethical bait-and-switch.

Shivji has picked apart breaded fillets, fillets doused in sauce, even charred fillets left on the grill a little too long.

``We can tell with 100 percent certainty'' whether restaurants are scamming, Shivji said. The professor's initial interest in identifying fish through DNA came from his passion for conservation. The federal government was having a hard time enforcing protections for endangered shark species, for example, because rogue fishermen would chop up their illegal shark catches in ways that hid any identifying features.

But chopping up a fish can't hide the DNA, Shivji reasoned. Shivji went on to pioneer a new way of testing shark DNA that has been instrumental in cracking down on the shark fin trade.

SCOPE OF PROBLEM

Enter CBS4's Al Sunshine. Sunshine approached Shivji in 2007 with the idea to use the power of DNA to expose fish-swapping restaurants. Sunshine had to do a bit of arm-twisting to convince Shivji to run the first test, but Shivji's skepticism melted as the evidence of rampant seafood fraud poured in.

``It just validates the argument that this is a national, if not international, problem,'' Sunshine said.

Shivji's phone was soon deluged with calls from TV reporters in other towns. Shivji dutifully accepted and tested their frozen fish samples -- mailed in from places that included Los Angeles, New York and Charlotte, N.C.

Shivji has also fielded inquiries from an unidentified local fish wholesaler (who wanted to make sure his inventory was legit) and the Missouri attorney general's office (which was investigating restaurants in Kansas City).

Fish mislabeling persists in part because it is virtually impossible for federal and state regulators to police all of the nearly five billion pounds of seafood consumed by Americans each year -- more than 80 percent of which is imported.

Many restaurant patrons are also unfamiliar with the differences between species -- they might order grouper simply because it's a name they've heard before. ``Most consumers can't really tell the difference between a grouper and a catfish,'' said Carlos Sanguily, vice president of Doral-based fish importer JC Seafood.

Aside from not getting what you pay for, fish mislabeling is a serious obstacle to ocean conservation efforts, Shivji said.

Widely popular grouper, for example, is a ``severely overfished'' species, but by appearing (often in name only) on menus everywhere, it creates the false perception that groupers are plentiful.

Fish-swapping can also have health consequences. Some imported fish may be raised in polluted waters, and diners with specific fish allergies can end up eating a fish species they're doing their best to avoid.

Sushi lovers ordering ``White Tuna'' are routinely served escolar, a tasty-but-oily fish that so frequently causes diarrhea it earned the nickname ``Ex-Lax fish.''

In the general genetics class Shivji teaches at NSU every fall semester, seafood fraud has become a teaching tool. Shivji regularly sends an army of students out to local restaurants to collect grouper samples that will be DNA-analyzed in class.

The tests revealed sizable numbers of impostor fish.

``It's got them jazzed up,'' Shivji said of his students. ``They go and talk about it with their families, `We did this and this is what we found.' ''

OVERSIGHT

Of course, keeping restaurants honest isn't solely the job of TV reporters and college researchers. Federal agencies such as the FDA have the ability to fine -- and in extreme cases prosecute -- restaurants and fish distributors that are deceiving buyers. State inspections of restaurants can also prompt fines of those who engage in fish-swapping.

Fort Lauderdale's Tokyo Sushi Express was cited by the state last month for selling customers tilapia billed as snapper. Imitation crab meat was also sold as real crab.

Manager Rob Rodalis said the restaurant had intended to print tilapia on the menu all along. ``I think it was a miscommunication between the one who printed up our menu. . . . It was a mistake,'' Rodalis said.

Rodalis said the restaurant had been unaware that imitation crab needed to be identified as such on menus.

Both federal and state governments have been criticized for not doing enough to catch seafood scammers. In some cases the restaurants can be the victim, with seafood distributors charging top dollar for what are secretly bargain-basement species of fish.

A federal Government Accountability Office report released earlier this year faulted agencies such as the FDA for ineffective, uncoordinated oversight efforts.

Bob Jones, executive director of the Southeastern Fisheries Association, an industry trade group, said U.S. fishermen ultimately suffer from fewer buyers and depressed prices when restaurants opt for selling imported, make-believe grouper. Jones, who estimates close to a quarter of all restaurants are deceiving customers, said diners should be suspicious of seafood deals that are too good to be true.

``If you pay less than $10 for a grouper dinner, your odds, in my opinion, are nil,'' Jones aid. ``You couldn't sell real grouper like that unless you were stealing the grouper.''

Information on restaurants cited by state inspectors for food misrepresentation can be found online at: http://tinyurl.com/m25796

Mr. Chow v. Philippe Round 2

2009-08-21T10:34:00.000-07:00

In a case of spied rice, Mr. Chow says rival restaurateur Philippe Chow's staff sneaked into the kitchen of his new Miami outpost in order to steal trade secrets.

Michael Chow, who started the Mr. Chow chain more than three decades ago, yesterday amended his recent trademark infringement lawsuit against his former employee, Philippe, to include charges of "corporate espionage."

The incident, which was captured by surveillance cameras, happened on Tuesday at the soon-to-open Miami Mr. Chow -- just across the street from Philippe Chow's restaurant.

Disguised as a chef, the 65-year-old spy tried to blend in while the kitchen staff was being briefed on the plans for the new restaurant, attorney Alan Kluger said.

When confronted by an executive chef, the spy said he was trying to appear "incognito," and so that "your boss will not notice," according to the lawsuit.

Philippe and his partner, Stratis Morfogen, discounted the allegations.

"This is beyond bizarre and at this point we have no further comment describing michael chow's delusional and paranoid state of mind," Morforgen said.

Mr. Chow v. Philippe Round 1

2009-08-21T10:31:00.000-07:00

It's a battle of the Chows, or Chow v. Chau, depending on who you ask.

Restaurateur and art collector Michael Chow, a.k.a. Mr. Chow, filed a lawsuit against Philippe restaurants this week in U.S. District Court in Miami that lists claims of "misappropriation of trade secrets, unfair competition and trademark infringement," among others. The lawsuit states that Philippe Chow (formerly Chak Yam Chau), chef and partner of Philippe restaurants, willfully caused brand confusion partly by changing his name.

Philippe Chow and partner Stratis Morfogen have opened Philippe restaurants in New York, Mexico and Miami, with one in Las Vegas in the works. Another is scheduled to open in West Hollywood this fall in the former Dolce space on Melrose Avenue. Michael Chow has Mr. Chow restaurants in New York, Beverly Hills, London and soon Las Vegas and Miami.

Philippe Chow worked at Mr. Chow in Manhattan from 1980 to 2005. According to the lawsuit, Philippe went by the last name "Chau" until 2005 before switching to "Chow." Defendants say he changed his name in 1977 when he arrived in the U.S. from Hong Kong.

Morfogen called the lawsuit meritless and without substance.

"It’s unfortunate that we have to take this action,” said Michael Chow. “Philippe has aggressively and shamelessly worked to confuse people into thinking our restaurants are connected, even to the point of referring to himself as 'Mr. Chow.' "

The lawsuit recalls the brouhaha dubbed "battle of the Wolfgangs," when Wolfgang Puck unsuccessfully pursued a suit last year against Wolfgang Zwiener after Zwiener opened a steakhouse called Wolfgang's Steakhouse in the same Beverly Hills turf as Puck's Cut steakhouse.

“I specifically chose to name my restaurant Philippe to alleviate any confusion with Mr. Chow," said Philippe Chow in a statement. "I have nothing but respect for Michael Chow, and the fact that we have the same last name is pure coincidence."

CALLARO’S PRIME STEAK & SEAFOOD SUED BY EEOC FOR DISABILITY DISCRIMINATION

2009-07-29T18:47:00.000-07:00

CALLARO’S PRIME STEAK & SEAFOOD SUED BY EEOC FOR DISABILITY DISCRIMINATION

Restaurant Fired Server for Perceived Disability, Association with Disabled Son

MIAMI – The U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit in federal court announced today that a steak and seafood restaurant in Manalapan, Fla., violated federal law by discriminating against a female food server it regarded as being disabled and because of her relationship to a person with a disability.

According to the EEOC’s suit, Case No. 09-81101-CIV-ZLOCH/ROSENBAUM, filed in U.S. District Court for the Southern District of Florida, when Callaro’s Prime Steak and Seafood discovered that the server had a son with a disability, it demanded that she take a prohibited medical test. The EEOC says that when the server refused to take the test, Callaro’s reduced her working hours, scheduled her to work on days when she was unavailable, and ultimately fired her. Callaro’s terminated the server because it regarded her as disabled and because of her association with her disabled son, the EEOC asserts.

“Under the Americans With Disabilities Act, it is unlawful for an employer to discriminate against an individual who has a relationship or association with a person who has a disability, or because an individual is perceived to have a disability,” said EEOC Miami District Director Jacqueline H. McNair. “The EEOC will continue to vigorously enforce all aspects of the ADA’s employment provisions.”