Wednesday, March 29, 2017

Big business stifles wage increase on Miami Beach. "Profits are more important than providing a living wage."

Miami Beach’s new minimum wage law, which aims to raise the mandatory citywide wage to $13.31 by 2021, was struck down in Miami-Dade circuit court Tuesday, setting the stage for an escalation in the legal showdown between Tallahassee and City Hall.

The Florida Retail Federation, Florida Restaurant & Lodging Association and Florida Chamber of Commerce filed suit against the city in December over the city law, arguing that it is preempted by state law. Later, state Attorney General Pam Bondi filed a motion to intervene to defend the constitutionality of the state preemption law.

On Tuesday, Judge Peter Lopez invalidated the ordinance, ruling in favor of the alliance of the state and the statewide business groups, which insisted the requirement would be devastating for local businesses.

R. Scott Shalley, president and CEO of the retail federation, called the decision “great news for Florida retailers and the entire business community, as this ruling does not place an additional mandate on local businesses by requiring Miami Beach business owners to provide wages above what the state has previously established in law.”

Miami Beach’s attorneys said they will appeal immediately.

Florida’s minimum wage went up from $8.05 to $8.10 an hour on Jan 1. Lauded by labor unions and derided by business interests, the Beach’s ordinance mandates the new citywide minimum to be set at $10.31 on Jan. 1, 2018, and then increase by a dollar a year until 2021. The effective date of 2018 was purposeful — attorneys anticipated a legal challenge and wanted to give the city time to sort it out.

The City Commission also knew of the expected challenge when it unanimously passed the ordinance in June 2016. The Beach’s legal team has argued that a 2004 constitutional amendment that set a state minimum wage higher than the federal wage allows municipalities to set their own minimums.

A Miami Beach city attorney discusses the reasons behind the mayor's plan to raise the minimum wage.

Last week, a few groups filed legal briefs in support of the city’s position, including a leading expert on Florida constitutional law. Sandy D’Alemberte, dean emeritus of the Florida State University College of Law, filed a brief stating that the 2004 amendment protects local governments’ authority to set their minimum wage, whether it’s higher or lower than the statewide rate.

On Tuesday, Robert Rosenwald, first assistant city attorney, said in a statement that the court “simply got it wrong.”

“It ignored controlling Florida Supreme Court precedent holding that when a prior statute conflicts with the will of the people expressed in a constitutional amendment, it is the people’s judgment that controls,” he said.
Rosenwald drafted the ordinance and has insisted all along that the city will prevail in the end. He said the city wants to skip the appellate court and go straight to Tallahassee with the case.
“We will immediately appeal this adverse decision,” he said. “We will request that the Florida Supreme Court bypass the intermediate appellate court and step in immediately to reverse the trial court’s misreading of its precedent. Ultimately, whichever court hears our appeal first, we expect the attorney general and the special interest group plaintiffs to continue to fight, and so will we.”

The Beach ordinance received a good deal of support from labor groups, including unions and the National Employment Law Project.

“The court’s ruling invalidating Miami Beach’s minimum wage ordinance — and upholding the legislature’s ban on cities’ addressing local needs for higher wages — is unfortunate and will hurt communities across the state,” said Christine Owens, who works for the advocacy group. “ It also flies in the face of the opinion of leading constitutional experts, who filed a legal brief agreeing that the legislature’s ban was illegal.”

The invalidation marks a defeat for legislation first championed by Mayor Philip Levine, a politically ambitious Democrat who has made the minimum wage a central talking point as he explores a run for governor.

For Levine, the Beach, and the whole state, the ordinance and its ramifications lie at the intersection of policy and politics.

Levine stridently pushed for the the law’s passage while firmly positioning himself as a prominent Democratic voice opposing Republican Gov. Rick Scott, who will leave office due to term limits in 2018. A millionaire entrepreneur, Levine took aim at Scott and Bondi when the state intervened in the suit. Before that, the mayor even took out radio ads in California last year to promote the Beach’s ordinance while Scott was there on a business recruiting trip.
In a statement Tuesday, Levine criticized the state for wanting to block the Beach’s law.
“While I am extremely disappointed in today’s ruling against Florida families, we expected that this case would ultimately end up before the Florida Supreme Court,” he said. “Our legal team is working on a swift appeal to ensure that the will of Floridians expressed through the 2004 state constitutional amendment on minimum wage is fully implemented.”

Levine plans to respond to the political defeat by upping the ante. He wants to take the issue to the voters in the form of a statewide referendum.

"I am committed to seeing this issue through and will take it to the people through a referendum because we know Florida families cannot survive on today's minimum wage," he told the Miami Herald.

The statewide petition approach might be taken in Kansas City, Missouri, where the mayor and council members want to enact a local minimum wage higher than the state rate, but state lawmakers are already moving to block such efforts by passing a preemption law.
Politics aside, the ordinance comes at a time when the income gap between Miami-Dade’s richest and poorest is growing. Researchers suggest that high housing costs and stagnant wages are driving Americans out of South Florida — a theory bolstered by recent Census data and several studies in recent years.

A 2016 study by the Brookings Institution found that South Florida is among the worst in terms of income inequality in the country in urban areas and cities. A report by the Metropolitan Center at Florida International University noted that poverty levels in Miami-Dade have at remained at recession-level highs, and despite upticks in jobs, the workforce is returning to low-paying jobs instead of middle-income-paying work.

Advocates for the higher minimum wage point to these factors and apply them to the Beach, which has a tourism-driven economy geared to high-end spenders and serviced by relatively low-wage workers.

Joey Flechas: @joeflech

Friday, March 17, 2017

Disney to Pay Workers $3.8 Million Over Costume Fees, Wages

Mickey Money Wage Theft
Wage Theft Mickey?
Walt Disney Co. has agreed to pay $3.8 million in back wages to 16,339 employees, including workers at its Florida theme parks whose hourly pay allegedly fell below the minimum wage when the company deducted the cost of uniforms and costumes.

The company also failed to compensate employees for duties performed before the designated start of their shifts and failed to maintain accurate payroll records, the U.S. Labor Department said Friday in announcing the agreement with the Disney Vacation Club Management Corp. and Walt Disney Parks and Resorts U.S. Inc., both in Florida.
“Employers cannot make deductions that take workers below the minimum wage and must accurately track and pay for all the hours their employees work,” Daniel White, district director for the Labor Department's wage and hour division in Jacksonville, said in a written statement.

He said Disney was cooperative throughout the investigation. Efforts to reach a spokesman for the company were not immediately successful.
The agreement covers alleged violations between 2013 and 2017 and says that Disney is not admitting any violations occurred.

“This is a very large amount of money, but even more important because a large number of workers were involved,” said Seth Harris, who served as acting secretary of labor under President Barack Obama. “This case is another illustration of the fact that wage and hour enforcement is just as critical today as it has ever been.”

Disney has agreed to start within 30 days training all managers, supervisors, and non-exempt employees at all its Florida resort hotels “on what constitutes compensable work time and the need to accurately record all such time.”

Unpaid work before or after an employee's shift, uniform deductions that bring pay below the minimum wage, and incorrect record-keeping are all issues that arise fairly often in employment law enforcement, said Paul DeCamp, who ran the wage and hour division under President George W. Bush.

“The wage and hour division and plaintiffs' lawyers look for these issues in any investigation that they're doing, and many employers have practices that are challengeable with respect to those issues,” said DeCamp, now an attorney who represents employers. “And there is some measure of ambiguity in the law.”
Disney, the world's largest entertainment company, reported $55.6 billion in revenue last year.

Wednesday, March 2, 2016

An owner of Red Stixs — the Hamptons and Midtown Chinese eatery that’s attracted Nicki Minaj, Kendall Jenner and Gigi Hadid — has been accused of threatening to stick a fork in a staffer’s neck, like a dumpling, and strangling the waiter when he tried to defect to a rival.

The development’s just the latest in overheated competition between a number of upscale New York Chinese joints whose owners and chefs have variously worked together, then accused the others of being knockoffs, including Red Stixs, Philippe Chow and Mr. Chow.

Page Six has exclusively learned a Red Stixs waiter filed a police report alleging “criminal obstruction of breathing” against Michael Reda, a Red Stixs owner who was a founder of Philippe Chow.

Sources said the alleged Dec. 12 blowup began when server Alex Dobrin, 35, of Queens, told Reda he wanted to “pick up some shifts” at Jue Lan Club, a new Chinese restaurant being opened in the old Limelight space by Reda’s ex-partner-turned-rival, Stratis Morfogen.

That’s when, Dobrin alleges, Reda lost it. Police sources told The Post’s Shawn Cohen that the waiter was “in fear for his safety” after Reda allegedly “began to strangle him and threatened to kill him.” Dobrin also claimed, according to police sources, that Reda threatened: “ ‘I will stab you in the neck’ while reaching for a fork” and “I’ll send someone to break your legs.”

Dobrin filed the report at the 17th Precinct the day after the alleged incident, but no arrests have been made. Reda and Dobrin did not get back to us for comment.

Morfogen’s opening 275-seat Jue Lan with Robert Collins and Vikram Chatwal after a nasty falling out with his former Philippe partners. In 2014, Philippe sued Red Stixs’ Hamptons location, accusing it of being a copycat, and Philippe was sued in 2009 by Mr. Chow’s Michael Chow for ripping off his cuisine and name. Page Six reported this week that a convoluted six-year legal battle between Philippe Chow and Mr. Chow finally seems to have come to an end.

Tuesday, October 20, 2015

Kuvin Law FIles Sex Discrimination Lawsuit Based Upon "Sexual Orientation Discrimination" Under Title VII

WASHINGTON — David Baldwin is asking a federal court to order the Obama administration to pay up for alleged anti-gay discrimination he claims to have faced while working for the Federal Aviation Administration in Miami.

Baldwin’s lawyer told BuzzFeed News that the purpose of the lawsuit is much larger, though, aimed at expanding the scope of a recent agency ruling that found anti-gay discrimination is barred by existing civil rights laws.

“Mr. Baldwin’s case has the ability to affect more people than the [Supreme] Court’s Obergefell [marriage] case because there are more gay men and women who have jobs than same sex couples who want to get married,” Baldwin’s lawyer, Lowell Kuvin, told BuzzFeed News on Monday evening.

Baldwin — who alleges that he was passed over for promotions at the FAA’s Miami Tower Terminal Radar Approach Control facility because he is gay — took his case to federal court this past week, following up on a ruling in his favor this summer from the Equal Employment Opportunity Commission that allowed his case to move forward.

Baldwin argued — and the EEOC agreed — that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 includes a ban on discrimination based on a person’s sexual orientation.
“[A]llegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” the EEOC ruled in July in Baldwin’s challenge. Baldwin then had 90 days to decide whether to take the case to federal trial court.

In the complaint, filed in federal court in Miami on Oct. 13, Baldwin sued Transportation Sec. Anthony Foxx and FAA administrator Michael Huerta in their official capacities. Baldwin claims that he “was not selected for a permanent position as a [Front Line Manager] at the Miami Tower facility” and that sex — specifically, the fact that he is gay — was the “motivating factor” for the fact that he was not promoted.

Baldwin alleges that he “was singled out due to his sexual orientation and treated differently than heterosexual co-workers by his supervisors due to inappropriate gender stereotyping,” according to the complaint.

As legislative efforts to pass explicit LGBT protections have stalled in Congress, the argument that sexual orientation discrimination should be or is covered under existing civil rights laws has been advanced in recent years by some advocates and, this summer, by the EEOC.
While only the Supreme Court could issue a definitive ruling on the interpretation, EEOC decisions are given significant deference by federal courts. For now, however, the EEOC’s decision is only binding on federal agencies.

“While the decision by the EEOC in Baldwin v. Foxx was a giant step forward for extinguishing sexual orientation discrimination by allowing federal employees to pursue sexual orientation claim under the Civil Rights Act of 1964 and Title VII, it was just a small step forward for non-government employees,” Kuvin, Baldwin’s lawyer, told BuzzFeed News on Monday evening. “The next logical step for Mr. Baldwin, who would like to see the protection of Title VII extended to non-government employees alleging sexual orientation discrimination, was to bring the issue to the federal courts.”

Kuvin added that Baldwin only decided to take the matter to federal court “once it became apparent that the issues were not going to be resolved” through conciliation with the FAA, which Kuvin said “never responded” to Baldwin’s attempts to resolve the matter without litigation.

The move on sexual orientation coverage by the EEOC is not surprising. In 2012, the EEOC took similar action regarding the coverage of anti-transgender discrimination, finding in a case brought by Mia Macy that gender identity-based discrimination is covered under the sex discrimination bar in Title VII. The Obama administration has since concurred with that interpretation, but it has not announced such agreement with the EEOC’s interpretation as to anti-gay discrimination.
Baldwin’s case has been assigned to U.S. District Court Judge Kathleen Williams, appointed to the bench in 2011 by President Obama.

One leading advocate of the EEOC’s cases encouraged others to file similar cases.
“The EEOC’s strongly reasoned Baldwin ruling deserves deference from federal courts across the country, and we hope the federal district court in Florida will join federal courts in Washington state and Washington, D.C. in ruling that gay plaintiffs can bring Title VII claims,” Freedom to Work’s Tico Almeida told BuzzFeed News. “More LGBT Americans should follow the lead of courageous people like David Baldwin and Mia Macy by filing claims under the sex discrimination bans in the Civil Rights Act, the Fair Housing Act, and other existing federal statutes.”

Doing Away WIth Tipping - Restaurants Want To Charge More - Servers Will Earn Less

Danny Meyer, the New York restaurateur, may have started something. Last week, he announced he would eliminate tipping at his 13 restaurants and raise his prices. There followed a plethora of editorials and op-ed columns, most of them in support of the new policy, some of them pointing out — as you might have guessed — that tipping is anti-democratic, sexist, racist and, if it does not in some way contribute to global warming, that’s only because the study has yet to be done. Still, I love tipping.

The practice originated with European aristocracy, whence the term itself comes — “To Insure Promptitude,” thus TIP. The Financial Times editorial where I found that much-disputed fact went on to call the practice a “demeaning custom,” “outdated” and, just for good measure, “obnoxious.” That was just one of five articles the newspaper devoted to the subject. It has not been so worked up since Scotland threatened to bolt the United Kingdom.

Why? Well, there is much to criticize about tipping. Waiters usually do not share their tips with the kitchen staff, including the all-important chef. (There are, apparently, two classes of chefs: celebrity and impoverished.) It can be demeaning to rely on tips since some people like to see a waiter grovel or they like to criticize just about every aspect of the meal.

It is true also that female waiters not only have to put up with the occasionally obnoxious behavior of co-workers but also sometimes have to wade into a dining room fetid with men who think a good tip permits a sexist comment (or a leer). A New York Times anti-tipping article says that “nearly 37 percent of all sexual harassment claims to the Equal Employment Opportunity Commission come from restaurants.” Maybe so, but eliminating tipping will not eliminate boorish behavior.

There are, I grant you, some problems with tipping, but it is, overall, worth keeping. Like almost everyone else in America, I was once a waiter — and a busboy, and a short-order cook and a dishwasher — and I never felt I was groveling for tips. I did feel, as a friend told me before I went off on a wait job, “Remember, you work for the customer, not the restaurant.” If tipping doesn’t quite shift loyalties so neatly, it does put loyalties into play.

The waiter is my guy for the duration of the meal. He’s my agent. He looks out for me and, if he does a good job, I look out for him. He has an incentive to give me exceptional service, not some mediocre minimum, to ensure that my water glass is full, that my wine is replenished, to make sure that the busboy does not prematurely remove the plates — that I am not hurried along so that the owner can squeeze in another sitting. The waiter is my wingman.

I hesitate to mention another reason I like tipping. I like to make a difference, not just to be a bit of a big shot or be noticed or appreciated, but to give some of what I make to those who make less. I’m not flipping silver dollars into the air or hurling twenties around with abandon, but I am a healthy tipper (once a waiter, always a tipper) because this is my way of recognizing a good job. A healthy tip is like a pat on the back.

The tip is recognition of service well-performed. It shows that I care, that I notice — that I recognize what the restaurateur way back in the kitchen does not because he cannot. Why would I want to treat everyone as if they were equally good at their tasks? I like to reward, but occasionally I like to punish. Make my meal an ordeal, make me anxious about whether you got the order straight, and no 20 percent tip will come your way. Maybe that’s not democratic, but a meal is not a town hall meeting.

Tipping, I regret, will go the way of the tie or the dinner jacket. It’s complicated. It needs to be calibrated. It’s something you learn how to do over time, and when, as a kid, I used to watch my father tip the waiter and the mai tre d’, I felt that mastering this would be almost as difficult as fatherhood itself. I’ve got most of it down now (I still don’t know what the mai tre d’ gets) — and I consider it both a responsibility and a privilege. I could go on, but my table — of course — is ready.

Sunday, February 15, 2015

Darden Sue By Servers Alleging Age Discrimination At Season's 52

Clients of the Law Firm of Lowell J. Kuvin were named in a complaint filed by the Equal Employment Opportunity Commission in an age discrimination lawsuit against restaurant giant Darden, the owner and operator of chain restaurant Season’s 52.

Anthony Scornavacca and Hugo Alfaro, 52 and 49 were denied employment when they applied for server positions at the Season’s 52 location in Coral Gables, Florida. “Scornavacca, who was a server at Joe’s Stone Crab for many seasons, and Alfaro, who has been in the hospitality business for more than two decades, are both highly experienced servers” said their attorney Lowell J. Kuvin, Esq. who filed their EEOC charges of discrimination. “It is beyond reason that Darden’s spokesperson Rich Jeffers said, ‘[w]e are proud of our commitment to diversity’ when both Mr. Scornavacca and Mr. Alfaro, who are both qualified were given cursory employment interviews and then denied employment based upon pre textual reasons.”

After their two year investigation, the EEOC issued a Letter of Determination which stated in part that “[t]he evidence, including statistical data, supports a finding that [Season’s 52] engaged in a pattern or practice of not hiring individuals who are over the age of forty at its Season 52 restaurants throughout the United States.” Mr. Kuvin and the EEOC both tried to conciliate Mr. Scornavacca and Alfaro’s claims, however, Darden refused to work with either party and denied any preferential hiring had occurred.

"It is getting harder and harder for hospitality workers over the age of forty to find employment." said attorney Lowell Kuvin. "Unfortunately, there seems to be a growing trend perpetuated by successful restaurant chains such as Houston's/Hillstone's and Season's 52 that front of the house employees such as server and bartenders over the age of 40 do not fit in."

The Law Office of Lowell J. Kuvin is law firm dedicated to hospitality worker's rights throughout the United States.

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Wednesday, January 7, 2015

Florida Minimum Wage Rate Increases

On January 1, 2015 the Florida Minimum Wage increased from $7.93/hr.  to $8.05/hr. for non-tipped employees and from $4.91/hr. to $5.03/hr. for tipped employees who earn at least $3.02/hr. in tips. The increase will benefit approximately 364,000 low wage workers in the state by adding an additional $300 per year to their $16,500 annual wages.

Florida is joined by 19 states — Alaska, Arizona, Arkansas, Colorado, Connecticut, Hawaii, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Jersey, Ohio, Oregon, Rhode Island, South Dakota, Vermont, Washington and West Virginia — that will raise their minimum wage on New Year's Day, and New York — which will do the same Wednesday — boosting wages for a total of 3.2 million workers.

For voters in Florida it is important to know that the increase was NOT the result of legislation or laws passed by representatives in Tallahassee; it was the sheer will of the people. In 2004, by an overwhelming majority, the voters passed the Florida Minimum Wage Amendment (Art. X Sec. 24) which mandates a yearly increase in order to keep the minimum wage on track with inflation.

The Law Office of Lowell J. Kuvin, LLC represents employees in the hospitality industry and other Florida industries in minimum wage claims against employers. Call and speak with an attorney for free.

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