Tuesday, March 24, 2009

Unpaid Wages in Florida


If you worked at an establishment and you were not paid for some of your time you can send a letter of demand to the employer asking for your past due wages. This is different than not being paid the correct hourly or overtime rate.

Many times employees help to open a restaurant by doing extra work such as cleaning or painting and are promised a day wage and then are not paid.

There are two important paragraphs that you must include:
Florida Statute 448.110(6)(a)-(b)
(6)(a) Any person aggrieved by a violation of this section may bring a civil action in a court of competent jurisdiction against an employer violating this section or a party violating subsection (5). However, prior to bringing any claim for unpaid minimum wages pursuant to this section, the person aggrieved shall notify the employer alleged to have violated this section, in writing, of an intent to initiate such an action. The notice must identify the minimum wage to which the person aggrieved claims entitlement, the actual or estimated work dates and hours for which payment is sought, and the total amount of alleged unpaid wages through the date of the notice.

(b) The employer shall have 15 calendar days after receipt of the notice to pay the total amount of unpaid wages or otherwise resolve the claim to the satisfaction of the person aggrieved. The statute of limitations for bringing an action pursuant to this section shall be tolled during this 15-day period. If the employer fails to pay the total amount of unpaid wages or otherwise resolve the claim to the satisfaction of the person aggrieved, then the person aggrieved may bring a claim for unpaid minimum wages, the terms of which must be consistent with the contents of the notice.


Good luck and email me if you have any further questions.

Lowell

Tuesday, March 17, 2009

Worker Adjustment Retraining Notification Act


The end came abruptly for Sterling Casino cruise ship employees.

One evening last July they were steaming out to sea with 800 gamblers on board, and the next morning their jobs were gone. Sterling ceased operations at Port Canaveral and gave workers no notice.

The closure might have violated a long-standing but little-known federal law designed to protect workers in the event of major layoffs. Known as the Worker Adjustment Retraining Notification Act, or WARN, it requires that employers give workers at least 60 days' notice of planned layoffs.

But the act comes with little bite, making lawsuits brought by employees the only real enforcement.

Now, as layoffs become a regular event, labor advocates argue that WARN should be strengthened.

"A lot of employees have never even heard of it," said Tony Paris, a staff attorney with the Sugar Law Center for Economic and Social Justice in Detroit. "When I went through law school, I never heard of it."

Jones, 53, of Cocoa Beach, hadn't either, until he spoke to a co-worker who'd had a similar experience with another cruise line. When he learned of the law, he helped organize a group of employees to sue the company. Their class-action lawsuit, which is pending in federal court, asks for $3 million in back pay for about 400 employees.

Sterling's attorney would not discuss the case, but in court filings the company argues that "unforeseeable business circumstances" — a defense allowed by the WARN act — led to the sudden shutdown.

The 20-year-old law was passed during an era of factory closures in the nation's "rust belt." With companies folding, the law was portrayed as a way to protect employees and towns dependent on a single major employer.

But the law's effectiveness has been questioned for years. It contains exemptions and, generally, applies only to companies with at least 100 employees.

In the 1990s, the U.S. General Accounting Office found that in more than half of the cases it studied, exemptions permitted employers to withhold notice. When notice was required, auditors discovered companies did so less than 30 percent of the time.

In part, that's because there's little downside to ignoring the law. Neither the state nor federal government can punish a company for violating the law, so employees' lawsuits are the primary enforcement mechanism. If a company loses in court, it pays back wages and lawyers' fees, not fines or punitive damages.

"In some ways," said Melanie Damian, the attorney for former Sterling workers, "it almost makes sense for an employer to ignore the act."

Businesses and business advocacy groups generally oppose any changes to the law that would increase penalties or reporting requirements. In many cases, they say, companies can't predict what will happen within 60 days. And broadcasting plans to shut down, they point out, could make it difficult or impossible to stay open at all.

"We're confident that employers nationally and across the state are trying to do what's best for employees," said Kirsten Borman of the Florida Chamber of Commerce. "We hope the government doesn't get into mandating the employer-employee relationship."

Monday, March 16, 2009

Question & Answer


Question;

Dear Mr. Kuvin,

As I said before each server automatically has 6% of their sales taken out for tip share. On an average night this can be anywhere from $25-50 per server with about 7-10 servers working. Based on discussions with the service bartender... the bartender, busboy, and food runner are each given $60-$80 per night, depending on if it is a week day or week end. This means that instead of taking the actual tip share and dividing it evenly among the support staff, the restaurant is keeping it and paying out a set amount to the support staff. If you do the math, there is a huge excess of tips not being shared with the support staff on a daily basis. The manager explained that it helps to offset the amount he pays the support staff on the slower nights or out of season. But this just doesn't seem right or fair. It seems as if the restaurant must be making extra money off this.

I don't even believe they are paying the support staff an hourly wage. I think they are purely paying them based on our tip out. It all seems very illegal and highly unethical. The servers that have been there awhile put up with it and haven't said anything because they were making upwards of $200 per night when they started there. These days, due to the economy, we are lucky to make $100 per shift, so the enormous tip out is putting a huge dent in our income.

I was hoping there was a guideline or law against forcing servers to tip out, or at least a cap on the amount. Since there isn't, I don't think there is much I can do here short of reporting them for illegal activities which is a road I really don't want to go down. It's easier to just find another place to work!

I appreciate any advice you have to offer.

Thank you,

Name Removed for Privacy


Answer:

There are basically two separate groups of laws at play here; Florida state laws and Federal FLSA (Fair Labor and Standards Act) laws.

Federal law requires employers to pay workers a minimum wage. If the employee earns tips as part of their wages, federal law allow the employer to take a tip credit in the amount of $3.02/hr. The State of Florida requires employers to pay an hourly wage rate which is higher than the federal minimum wage, however, the employer can still take the tip credit against the higher Florida wage rate. Currently the minimum wage in Florida is $7.17/hr. Subtract the $3.02 tip credit and you get $4.15/hr. Employers must pay all of their employees at least one of these two hourly wages.

If the restaurant is forcing you to tip the house and then using the money to pay the support staff their hourly wages they are violating the FLSA. An employer must pay their employees at least the minimum wage. Since the employer does not have any type of property interest in your tips, they are not paying the support staff any type of wages.

There is an exception to this rule, however, the fact scenario above does not hint of the elements which would cause me to change my opinion.

There is not any type of official State or Federal guideline to how much an employer can force you to tip out the support staff, however, there is case law which suggests that tips are earned by servers as a part of their wages and that they should be the main beneficiary of those tips.

Saturday, March 14, 2009

Federal Case Law on Tip Pools


I have made available a recent Federal Court FLSA case called JOHN WAJCMAN vs.PALM BEACH KENNEL CLUB. This case explains, in legal terms, many of the tip issues that restaurant workers ask me daily. Who may participate in a tip pool, what kind of damages can I recover, and can the management participate in the tip pool and take some of our hard earned money for themselves?

If you have any questions, please email me and I will do my best to answer them as quickly as possible.

Remember, ALL information that you share with me is Strictly Confidential!! The attorney/client privilege applies and I cannot share any of what you share with me, with anyone else, without your permission.

Friday, March 13, 2009

Craigslist and Discrimination



It seems that whenever I post "Hospitality Lawyer" information on Craigslist my post gets taken off the server. I can only guess that restaurant owners and managers are the persons flagging me. I wonder why that is?

For everyone that finds their way here. Please read through my posts and ask any questions you like. If you think you have been discriminated against please email me the details and we can then set up a time that is good for you for a phone interview.

lowell@kuvinlaw.com

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

telephone - 305.358.6800

Wednesday, March 11, 2009

Federal job discrimination complaints hit record


WASHINGTON – A record number of workers filed federal job discrimination complaints last year, with claims of unfair treatment by older employees seeing the largest increase.

The Equal Employment Opportunity Commission said Wednesday it received more than 95,000 discrimination claims during the 2008 fiscal year, a 15 percent increase over the previous year.

Charges of age discrimination jumped by 28.7 percent — with 24,582 claims — while allegations based on race, sex and retaliation also surged to record highs.

"The EEOC has not seen an increase of this magnitude in charges filed for many years," said the commission's acting chairman, Stuart J. Ishimaru. "While we do not know if it signifies a trend, it is clear that employment discrimination remains a persistent problem."

With the economy in recession and companies shedding millions of jobs, labor experts suggested that older workers may have suffered a disproportionate hit. Federal laws barring age discrimination cover workers 40 and older.

"The economy is in meltdown mode and from the point of view of the company, if you lay off an older worker, the cost savings to you are much greater than if you lay off a younger worker," said Eileen Appelbaum, visiting scholar at the Center for Economic and Policy Research.

Allegations of race discrimination remained the most frequently filed complaint, accounting for 33,937 charges, or 35.6 percent of all filings last year. That was an 11 percent jump from 2007.

Retaliation was the second most frequent complaint, up 22.6 percent from the previous year. Sex discrimination complaints rose by 14 percent.

The agency says the overall surge could be due to a variety of factors, including economic conditions, increased diversity in the work force, greater employee awareness of the law and the EEOC's focus on systemic litigation.

And the number of claims could rise even further, said EEOC spokesman David Grinberg. Since the current data is through Sept. 30 of last year, the numbers may not fully reflect the impact of the recession.

Once a claim is filed, the EEOC has 180 days to investigate. If the agency finds merit, officials usually try to reach a voluntary settlement with the employer. If no settlement is reached, the EEOC or the worker may file a separate lawsuit.

In fiscal 2008, the EEOC filed 290 lawsuits, resolved 339 lawsuits and resolved 81,081 private sector charges.

Friday, March 6, 2009

Top UK restaurant closed as 400 diners taken ill


LONDON (Reuters Life!) – British health officials said on Friday they were investigating 400 potential cases of food poisoning linked to top-rated Fat Duck restaurant, run by celebrity chef Heston Blumenthal.

The award-winning restaurant in Bray, Berkshire, is known for its chemistry-inspired dishes such as bacon and egg ice cream and snail porridge, with many courses frozen in liquid nitrogen.

Blumenthal voluntarily closed the restaurant last month after around 40 diners complained of diarrhea and vomiting.

The Health Protection Agency said the number had risen to 400 after media coverage of its investigation.

"This is a very complex outbreak," said Graham Bickler, a regional director at the agency.

The agency said its probe would extend to all those who had eaten at the restaurant since late January, whether they reported being ill or not.

The restaurant, which has had a three-star rating from the Michelin guide since 2004, is co-operating fully with the investigation, the agency said.

Diners often wait months for a reservation at the Fat Duck, which seats 40 people and charges 130 pounds ($185) a head for its 17-course tasting menu.

Blumenthal has said he is mystified by the outbreak, as the restaurant conducts weekly infection tests and nothing has been discovered.

"It was out of the blue ... I'm as fastidious about the hygiene side of things as I am about the actual cooking processes," he told the Guardian website in a video interview.

"The last thing you want is somebody to leave the restaurant with so much as a slight headache."