Undocumented Workers Can Sue Under The FLSA

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

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

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

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

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!!

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

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.