Friday, October 17, 2014

Jimmy John's sandwich shop job application fine print forbids working at another sandwich shop for 2 years after leaving

If you're considering working at a Jimmy John's sandwich shop, you may want to read the fine print on your job application.

A Jimmy John's employment agreement provided to The Huffington Post includes a "non-competition" clause that's surprising in its breadth. Noncompete agreements are typically reserved for managers or employees who could clearly exploit a business's inside information by jumping to a competitor. But at Jimmy John's, the agreement apparently applies to low-wage sandwich makers and delivery drivers, too.

By signing the covenant, the worker agrees not to work at one of the sandwich chain's competitors for a period of two years following employment at Jimmy John's. But the company's definition of a "competitor" goes far beyond the Subways and Potbellys of the world. It encompasses any business that's near a Jimmy John's location and that derives a mere 10 percent of its revenue from sandwiches.

From the "Agreement:"

Employee covenants and agrees that, during his or her employment with the Employer and for a period of two (2) years after … he or she will not have any direct or indirect interest in or perform services for … any business which derives more than ten percent (10%) of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located with three (3) miles of either [the Jimmy John's location in question] or any such other Jimmy John's Sandwich Shop.

It isn't clear what sort of trade secrets a low-wage sandwich artist might be privy to that would warrant such a contract. A Jimmy John's spokeswoman said the company wouldn't comment.

The noncompete agreement is now part of a proposed class-action lawsuit filed this summer against Jimmy John's and one of its franchisees. As HuffPost reported in August, Jimmy John's workers recently brought two lawsuits accusing the company of engaging in wage theft by forcing employees to work off the clock.

Last month, the workers filing one of those suits amended their initial federal complaint to argue that the noncompete agreement is overly broad and "oppressive" to employees. (The noncompete language from the franchisee's agreement can be found here, in the online hiring packet for a different Jimmy John's franchisee.)

Kathleen Chavez, the lawyer handling the case, told HuffPost in an email that her two clients named in the complaint were required to sign the agreement as a condition of employment; one is an assistant store manager, the other a former delivery driver and assistant store manager. Chavez argued that, if enforced, the clause would dramatically limit the places a worker could earn a paycheck following a stint at Jimmy John's.

Chavez said the effective blackout area for a former Jimmy John's worker would cover 6,000 square miles in 44 states and the District of Columbia. Founded in 1983, the college-town staple now has more than 2,000 locations.

"It is disturbing this document is being used and it is our position that it has broad impact on thousands of employees," said Chavez, who is a lawyer with the Chicago firm Foote, Mielke, Chavez & O’Neil.

Chavez used the example of a student who works at a Jimmy John's in Illinois during high school. Once he leaves for college at the University of Alabama, he has been foreclosed from working just about anywhere in Tuscaloosa that serves a decent share of sandwiches -- including, in theory, the school cafeteria -- because most of those places fall within three miles of a Jimmy John's.

HuffPost knows of no instances in which Jimmy John's has actually enforced this covenant upon a worker, and the company wouldn't necessarily be successful if it tried.

But it's not unheard of for a sandwich chain to enforce a noncompete clause. Last year, a former Subway manager accused her old employer of trying to block her from starting a new job at another sandwich shop, citing a clause the manager signed in 2009.

The effectiveness of noncompetition agreements varies from state to state. If the worker fights the clause in court, the company generally needs to demonstrate that it's legitimately trying to protecting itself, and that the clause is reasonable and wouldn't put an undue burden on a worker.

"A guy who's putting a piece of roast beef between two pieces of rye bread -- the challenge for the employer is to show what the hell this person knows that will hurt you," said one expert on noncompete agreements, who asked not to be named since he isn't involved in the case.

"Without making a judgment about Jimmy John's, I would say the lower you go down the food chain of employees, the question becomes a little more pressing: What is your legitimate business reason here?"

A company in this position may feel there's little to lose by inserting such language into an agreement. Even if the clause failed to hold up in court, the very possibility of limited employment opportunities could dissuade certain workers from rocking the boat -- like, say, those who are trying to unionize their Jimmy John's sandwich shop.
   

Tuesday, October 7, 2014

Kansas Supreme Court FedEx Ground Drivers Are Employees, Not Contractors! Ruling May Have Implications For Workers At Franchise Restaurants.

New Ruling: FedEx Ground Drivers Are Employees, Not Contractors! Kansas Supreme Court
Are you a contractor or employee
Employees not contractors!
Ruling May Have Implications For Workers At Franchise Restaurants.


479 Kansas FedEx Ground delivery drivers working for FedEx as independent contractors sued FedEx alleging they were improperly classified as independent contractors under Kansas law. The drivers are seeking to recoup retroactive costs and expenses, as well as overtime.

FedEx has faced multiple class actions across the country by both current and former drivers who signed contracts with FedEx between 1998 and 2007. Drivers say that the shipping giant classified them as independent contractors, but forced them to buy their own uniforms and equipment, while also controlling minute details of their appearance and behavior, with specific guidelines for hygiene and body odor.

Factors the court considered included: how much training the delivery company provided the drivers and how the drivers’ work hours were set, FedEx’s requirements of drivers to comply with its instructions, and how integrated the drivers’ services were to FedEx’s business

The justices also emphasized that FedEx provides "manuals, handbooks, memoranda, training videos, and other means of communication that direct that manner and means of delivering packages."
     "In short, the plaintiff drivers are integrated into FedEx's business to the highest degree possible," the 49-page ruling states.

The Kansas opinion could influence not only the decision of the Seventh Circuit court, but also other similar lawsuits against FedEx in other courts around the country.

Does Fedex sound like a restaurant you work for?
Find out if you are an employee or an independent contractor at www.kuvinlaw.com today.

Thursday, October 2, 2014

Overtime and Construction Workers – What are the laws in Florida?

Construction workers in Florida are entitled to overtime, one-and-half times the regular wage, for all hours worked in excess of forty hours in a work week. The exemptions provided by FLSA Section 13(a)(1) do not apply to manual laborers or other “blue collar” workers, including non-management construction workers, who perform work involving repetitive operations with their hands, physical skill and energy.

Such nonexempt “blue collar” employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training, not through the prolonged course of specialized intellectual instruction required for exempt learned professional employees. 

Non-management construction employees in production, maintenance and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt no matter how highly paid they might be. 

Common overtime issues include: (1) Failure to record all hours actually worked to include time spent working before or after the shift. (2) Shorting of hours by using terms such as down time or rain delay. (3) Failure to compensate for meal breaks where the employee is not completely relieved of all duties to enjoy uninterrupted time for the meal. (4) "Banking" of overtime hours or payment of overtime in the form of "comp time". (5) Failure to combine the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek. (6) Failure to segregate and pay overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis. (7) Failure to pay for travel from shop to work-site and back. Contractors and sub-contractors working at construction sites are usually paid according the contracts/bids they make to complete a part of the project or the job.

Make sure you are being properly paid for ALL of the hours you work each week by keeping a separate record of time you clock in for work, your lunch breaks, and the time you clock out each day. If you are not being properly paid, call us to discuss your options.

Sunday, September 7, 2014

McDonald’s labor decision is important for workers in the US

"Why the McDonald’s labor decision is important for workers in the US", 23 Aug 2014

Last month, the general counsel for the National Labor Relations Board (NLRB), which settles labor disputes in the U.S., decided for the first time that when considering labor complaints at McDonald’s franchises, it would deem the chain jointly responsible. A variety of observers have noted how this is an important breakthrough for fast food workers — one that prevents the multinational corporation from palming off labor abuses on bad-apple franchisees. But the implications are much wider than that...Today a huge number of people...work in jobs that are temporary, freelance or outsourced...Our labor laws have yet to catch up to this new reality. Yet employees’ ability to form collective organizations, protect their rights and create fair working standards is directly connected to how we resolve this issue...The issue of employer of record — finding out which boss to hold accountable when there are multiple employers...is central in determining whether working people are able to organize in our new economy. If we are ever to bring legal protections in line with today’s economy, expanding on the McDonald’s decision and rejecting corporations’ efforts to evade responsibility for labor abuses must be a first step...As a next step, labor law needs to catch up to conditions that working people in the U.S. have put up with for decades.
Overtime and Construction Workers – What are the laws in Florida?


Construction workers in Florida are entitled to overtime, one-and-half times the regular wage, for all hours worked in excess of forty hours in a work week.
Common overtime issues include:

(1)  Failure to record all hours actually worked to include time spent working before or after the shift.
(2)  Shorting of hours by using terms such as down time or rain delay.
(3)  Failure to compensate for meal breaks where the employee is not completely relieved of all duties to enjoy uninterrupted time for the meal.
(4)  "Banking" of overtime hours or payment of overtime in the form of "comp time".
(5)  Failure to combine the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek.
(6)  Failure to segregate and pay overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis.
(7)  Failure to pay for travel from shop to work-site and back.

Contractors and sub-contractors working at construction sites are usually paid according the contracts/bids they make to complete a part of the project or the job. Make sure you are being properly paid for ALL of the hours you work each week by keeping a separate record of time you clock in for work, your lunch breaks, and the time you clock out each day.

The exemptions provided by FLSA Section 13(a)(1) do not apply to manual laborers or other “blue collar” workers, including non-management construction workers, who perform work involving repetitive operations with their hands, physical skill and energy.

Such nonexempt “blue collar” employees gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training, not through the prolonged course of specialized intellectual instruction required for exempt learned professional employees.

Non-management construction employees in production, maintenance and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt no matter how highly paid they might be.

 If you are not being properly paid, call us to discuss your options.
Updated 9/7/2014

Thursday, August 7, 2014

Is It Any Surprise That The Florida Restaurant & Lodging Association Supports Rick Scott?

Who They Endorse:

The main group that helps represent and promote Florida’s biggest money-making industry is the latest to endorse Governor Rick Scott. The Florida Restaurant and Lodging Association made the announcement at the group’s summit Wednesday in Tampa. And, Governor Scott says he couldn't be happier.

“Very appreciative of y’all’s endorsement. I’m going to continue to work every day to…hopefully this year, we’ll have 100 million tourists, and next year, we’ll keep growing every year over the next four and half years,” said Scott. 

What FRLA Does:

The association lobbies and hosts educational programs for its 10,000 members, which range from corporate chains to single-site independent restaurateurs and hotels. The group was created by the 2005 merger of the Florida Lodging Association into the Florida Restaurant Association. 

Last year FRLA supported a bill that if turned into law would have cut the minimum wage for tipped employees by 57% to $2.13/.hr from the current $4.91/hr.

The attempt to cut the minimum wage may have been the reason that long term member (1980's) Darden Restaurants (Capital Grill, Olive Garden etc.), a Fortune 500 company, resigned its seat on the FRLA Board and withdrew from the Association.


How Important is Restaurant and Lodging to Florida?

Florida's hospitality industry represents:

A $71.8 billion industry

23% of Florida’s economy

$4.3 billion in sales tax revenue

More than 1,000,000 employees – Florida’s largest employer

FRLA = Rick Scott

As far as I know, Rick Scott never waited tables and has zero idea how hard service industry employees work. I am voting for Charlie Crist - in fact - I have sent him money for his campaign. People of the state of Florida do not pay state income tax because the state collects over $4 billion in sales tax revenue - because over 1,000,000 service employees who deserve more than $2.13/hr.

Wednesday, July 23, 2014

Why Waiters Only Make $2 An Hour, Explained By A Cartoon I Wish I Could Strangle


While thousands of fast-food workers were preparing to walk off their jobs earlier this summer to seek raises to $15 an hour, the industry’s corporate lobbyist, the National Restaurant Association, was celebrating a string of political victories blocking state minimum wage increases and preempting local sick day laws.

In June, the NRA boasted that its lobbyists had stopped minimum wage increases in 27 out of 29 states in 2013. In Connecticut, which increased its state minimum wage, a raise in the base pay for tipped workers such as waitresses and bartenders vanished in the final bill. A similar scenario unfolded in New York State: It increased its minimum wage, but the NRA’s last-minute lobbying derailed raising the pre-tip wage at restaurants and bars. The deals came despite polls showing 80 percent support for raising the minimum wage.

The NRA’s lobbying didn’t stop there. It also told members that it blocked a dozen states this year from passing laws that would require earned paid sick leave, which is what New York City and Portland, Oregon adopted. Meanwhile, it boasted that six states, including Florida, passed NRA-backed laws that preemptively ban localities from granting earned and paid employee sick time.


“These are horrible things, but there are amazing things that are happening to change it,” said Saru Jayaraman, co-director and co-founder of the Restaurant Opportunities Centers United (ROC), which has been working a dozen years to slowly change the industry’s exploitive business model and labor practices. “And there will be increasingly important stuff coming up.”