Wednesday, December 1, 2010

David Stern Sued For Employment Law Violations

PLANTATION -- Four former employees of the Law Firm of David J. Stern and its' related foreclosure processing company -- DJSP Enterprises, have filed a federal lawsuit claiming they were not given proper notice before being fired.

The employees allege Stern violated the Worker Adjustment and Retraining Notification Act, or WARN, which mandates that employers give employees 60 days notice before being terminated.

Nikki Mack is one of the employees suing. She worked for Stern for 14 years rising from a receptionist to an office assistant. She was fired in October and was shocked when she saw a form email announcing that due to a lack of new business, she had been "selected to be part of the cutbacks."

Mack said she left the office on the day of her firing in tears, without severance pay and only days left on her health insurance coverage. That is what really steams her.

Mack said Stern knew that suffered through cancer treatments for lymphoma for six months and yet he allowed her health insurance coverage to end.

"I worked all through the treatments, I feel hurt that this is happening," Mack told CBS 4's Carey Codd. "He knew the situation I was going through with my illness."

Mack is not alone. At least 700 employees have lost their jobs at Stern's businesses in recent months. Stern's firm and company are under investigation by the Florida Attorney General's Office, who are investigating the companies for allegedly falsifying mortgage paperwork.

Attorneys for the employees -- Gary Farmer, Dawn Rapoport and Chandra Parker Doucette -- claim the employees did not receive proper notice before losing their jobs.

"We sued David J. Stern and his related companies because their employees never got this notice as required under the statute," attorneys Rapoport and Doucette said in a statement. "Sadly, one of the largest Broward county employers, the foreclosure king, put over 800 of his own employees in to the unemployment line and who knows if the next step would be foreclosure for them, just in time for the holidays."

Farmer said what these employees endured is unfair.

"These employees didn't do anything wrong," said attorney Gary Farmer. "They were hard workers, showing up on time, doing their jobs and they were unceremoniously cut loose simply because David Stern -- from the bridge of his yacht -- decided he didn't need them anymore because his profits were down."

Farmer also said that Stern should have anticipated the layoffs.

"Stern and his enterprise of companies had to known that a downturn in business was possible because they were engaging in fraud," Farmer said.

Attorneys for the employees are asking for the case to be given class action status.

Mack said she wants "an apology" first. But she also wants back pay and benefits from the time of her firing. She went several weeks within health insurance before receiving coverage through her husband's employer.

Fortunately, her cancer is in remission but she is remains angry over the way she was treated at a job she held for years.

"We need an explanation," she said. I'm hurt because I haven't seen David Stern in a while. I want to talk to him."

A lawyer representing the Stern law firm had no comment on the lawsuit. Attorney Jeffrey Tew said only that Stern "adjusted the employees to reflect the workload" at the businesses.

Earlier this fall, Stern left his position as CEO at DJSP Enterprises.

Sunday, November 28, 2010

Age and Sex Discrimination In South Florida

Age and sex discrimination in the hospitality and restaurant business is a daily occurrence for many over forty male and female job seekers. It is not uncommon to see Craiglist job postings in the “food / bev / hosp” section looking for “Female” – Bartenders, Hostesses or Bottle Servers. Many times the ads are accompanied by a request for a “recent picture.” Sure I get the idea that young females are supposed to attract men who then spend money. However, I can tell you that after twenty-five years in the business, the sex and age of your employees have nothing to do with making a restaurant or night club profitable. I’ll take an attentive anyone who can anticipate the needs of the guests over an employee who is more interested in texting and checking out the people on the dance floor. I’m not saying that a young female server is necessarily going to be less qualified than an older server. I am saying that age and sex do not make a difference, and should not be considered when hiring.

Additionally, and I forgot to point this out. Age and sex discrimination is against the both Florida State as well as Federal laws. There can be stiff penalties and fines for a business that discriminates; not to mention attorney fees and costs and settlement dollars which are subtracted from net profits.

Age and sex discrimination are one of the primary focus areas of law which I pursue as a hospitality attorney. I do not expect to make changes over night, however, I have identified several businesses, clubs, and nationwide restaurant chains where I plan on starting. We have filed several age discrimination (ADEA) complaints with the EEOC against large national chain restaurants that both have multiple Florida locations.

If you need more information or would like to point out or complain about an ad which you think is discriminatory, please contact my office by email or phone. Additionally, if you have recently applied for a job and you think you were discriminated against, please contact us and discuss the matter with one of our attorneys.

Thursday, September 30, 2010

Working While Your Sick; A Way Of Life For Hospitality Employees

A Chicago restaurant worker recalls a time he was sick but felt he had to work or else be fired: "It was an incredibly busy weekend," he said, "at one point, one of my fellow workers sat me down because I was about to faint. The smell of grease and a long shift had taken their toll. I spent the next five days vomiting, expectorating phlegm and drinking a lot of orange juice. I had to force my co-workers to cover for me and work double shifts. They didn't want to see me fired, and I didn't want to lose my job. Later that week, two of my co-workers caught my virus as well as quite a few customers."

Stories such as these are scattered throughout "Serving While Sick," a report on the health, safety and healthcare of restaurant workers in the U.S., put out by the Restaurant Opportunities Centers United, a New York-based national restaurant workers' organization that supports higher wages and better work conditions for restaurant employees. The report, released today, is based on 4,323 surveys of restaurant workers across the country, plus 240 employer interviews. The report also includes results from 500 more worker surveys and 20 additional interviews with employers on health insurance needs.

Regarding risks that restaurant workers encounter, 36.1% said it was unsafely hot in the kitchen, 25.2% said there were fire hazards in the restaurant and 38.1% said they had done something that put their own safety at risk. In addition, 66.6% of workers said they didn't know worker compensation laws and 33% said they never underwent health and safety training provided by employers.

Among injuries sustained on the job, 45.8% of workers were burned, 49% were cut and 24.5% had contact with toxic chemicals. As for workplace practices, 38.1% said time pressures caused them to do something that put their own safety and health at risk, and 42.5% said that time constraints caused them do so something that may have harmed the health and safety of customers.

Most workers surveyed said taking time off when sick was difficult. Almost 90% of restaurant employees said they don't get paid sick days, nearly 80% said they don't get paid vacation days and about 64% said they've worked while sick.

Quotes from anonymous workers sprinkled throughout the report relay similar messages: Most workers don't take time off when sick because they won't get paid and they fear that too much time taken off will result in being fired.

The vast majority of workers, 89.7%, don't get health insurance through their employer. About 62% don't have any health insurance and about 23% had gone to the emergency room but weren't able to pay the bill.

On the employer side, there was a general agreement that health insurance was essential for current employees and important for hiring and keeping potential workers.

It should come as no surprise that almost half of the restaurant workers surveyed were foreign-born. About 15% said they were undocumented workers.

The report's policy recommendations included giving workers benefits such as paid sick days and healthcare, providing health and safety training, and improving health and safety conditions in restaurants.

-- Jeannine Stein / Los Angeles Times

Monday, September 6, 2010

Family Medical Leave Act (FMLA) and The Americans with Disabilities Act (ADA)

What is considered a serious health condition? Not a cold or the flu. It has to be illness, injury, impairment, or physical or mental condition that involves care at a hospital or other medical office. You also have to be unable to attend work or perform regular daily activities, or be receiving continuing treatment for a chronic or serious condition from a health provider.

Am I protected by FMLA? Not always. If you work for a private employer at a location within a 75-mile radius of a job site with 50 employees, then you may be eligible for job protection and medical leave under FMLA.

You also must have worked for the employer for one year, though the time worked doesn't have to be all at once. Within the previous year, you must have worked 1,250 hours, or at least 24 hours a week, to qualify.

Do I need to take leave for a health condition all at once? No, there are different types of leave an employee may take under FMLA. If it's for childbirth or surgery, for example, the worker might give the employer notice of weeks required for recuperation. A cancer patient on chemotherapy, however, might need small doses of time over a period of months for medical treatment.

How much time off can I take under FMLA? At most, 12 unpaid weeks. Some employers continue pay during that leave. Certain workers could get more leave related to their health condition under the Americans With Disabilities Act (ADA).

Do I have to inform the employer I'm taking FMLA? Employees are not required under the law to specifically tell an employer, "I want an FMLA leave.," but they should provide enough information that there might possibly be a need for a leave. Employees and employers should err on the side of giving and receiving more information.

An employee is usually best served by documenting a health condition or disability with the employer, experts say.

Kessela Brown, spokeswoman for the EEOC in Miami, said it's up to the employee to tell their employer about their health situation and ask for an accommodation, if necessary. "Most accommodations are under $500," she said.

Are employers generally flexible with employees who are cancer patients? Half of employers that responded to a recent survey about accommodating seriously ill employees say they made the requested accommodations "all of the time." The other half indicated they made the requested accommodations "most of the time," according to a survey by the International Foundation of Employee Benefit Plans.

Those accommodations included flexible hours, reduction in hours, additional breaks and telecommuting.

What types of health conditions does the ADA cover? The ADA was amended in 2009 to apply to a broad array of health conditions where a patient might have recurring episodes, such as cancer, Brown said. Employers have the right to ask for documentation for a health condition when an employee requests leave.

Employers should provide their workers with a Department of Labor form for their doctor to provide more detail about their health condition. Medical information must be kept separately from the worker's regular personnel files, according to the DOL.

What if I'm denied FMLA leave? Call a lawyer specializing in employment discrimination. The Florida Bar Association provides referrals. Or file a complaint with a federal, state or local agency that handles employee violations (see detail in box.)

Can I be fired if I have a serious health condition?
After 12 weeks of leave, the employee has the right to reinstatement to the same or equivalent position. But if the company happens to be going through layoffs, workers on FMLA or disability leave can't be singled out, but are not immunized from layoffs that would have otherwise affected you.

What should I do if my employer is harassing me to come back to work? Within the 12 weeks, the employee cannot be forced to come back to work until the doctor certifies it's OK to return. If the health condition is serious, but is not a disability that might provide more leave under ADA, then the employer is not obligated to reinstate the employee after the 12 week-maximum.

If I decide to sue, could I win a large jury verdict? It's always possible, but most employees who sue for employee law violations don't win big verdicts. Often the cases are settled or even dismissed. Awards under ADA are limited to $300,000. The Florida Civil Rights Act caps punitive damages at $100,000, but there's no limit for emotional pain and suffering.

Sunday, September 5, 2010

Walkouts – Who Is Responsible For Paying The Check?

Walkouts – Who Is Responsible For Paying The Check?

Walkout, Dine and Dash, Short Changed – they are all the same. Someone sits in your section, has a meal, and leaves without paying the all or part of the check. Yes, this has even happened to me and I had to make up the difference at the end of my shift. Is this legal?

Certainly not. Walkouts are a part of doing business for restaurant owners who can implement polices to help prevent patrons who want a meal but do not want to pay.  However, if you have read some of my other blog postings, there are always exceptions when it comes to restaurant law in Florida.

This is why it is illegal:

Most restaurants pay their service staff a reduced hourly wage of $4.23/hr. (Fla. Minimum Wage is $7.25/hr. minus the Federal Tip Credit of $3.02/hr. equals $4.23/hr.) When management requires a server to pay for a walkout out of his/her pocket, the hourly wage is dropped below the minimum allowable by law. The exception occurs when you are paid more than the minimum wage and the walkout deduction would not bring you below $7.25.

Of course it is a server’s job to watch his/her station to make sure people do not forget to pay, however, servers cannot be everywhere at once. This is why it is important that servers working next to each other watch each other’s stations and that management make sure that host/esses help too.

Walkouts are everyone employees responsibility, however, when it comes time to reconcile the POS, it is management’s, not the servers, legal duty to take care of the bill for the walkout.

As always, the legal opinion above does not apply to every single fact scenario dealing with walkouts so please call and ask us any questions you may have about your hospitality job.

Law Office of Lowell J. Kuvin
17 East Flagler Street, Suite 223
Miami Florida, 33131

Tele: 305.358.6800

Thursday, August 26, 2010

Pyrotechnic Bartender Gets November Court Date - "No One Got Hurt"

I only lit the drink on fire - not the bar.

"There is no requirement against flaming drinks," insists Albert Trummer, who has been charged with reckless endangerment for his pyrotechnic antics inside a posh Chinatown lounge called Apotheke.
Fire code officials say Trummer poured a liquid on the bar and ignited a five-foot flame back in June as 50 patrons stood nearby in the curtain-draped lounge.

The professionally-trained chef turned bartender faces a year behind bars if convicted.
Trummer flashed a peace sign as he exited Manhattan criminal court after a Tuesday hearing in which a Nov. 9 court date was set.

He insisted he didn't set the bar top ablaze - only the cocktail.
"No one got hurt. I didn't use any gasoline," he told cops, according to court documents. "People have been doing this for 200 years."

FDNY investigators say otherwise - and that they sent undercover investigators after being tipped off by worried patrons.

Trummer, 41, has billed his bar as a showplace.
One online listing says this of Doyers St. hot spot: "The presentation of a cocktail is just as dramatic as the cocktail itself. The bar is no longer a bar -- it's a stage, a chemistry lab, a theater."

Friday, August 20, 2010

Sex Discrimination On Craigslist - Illegal Job Postings

It has come to my attention that there have been many “gender specific” employment want ads on Craigslist lately. Generally speaking, “gender specific” or sex discrimination ads are a violation of both Florida’s Civil Rights Act and Federal Title VII of the Civil Rights Act of 1964. The only rare exception is the bona fide occupational exception listed at 29 CFR 1604.2 which states in part that: “The commission believes that the bona fide occupational qualification exception as to sex should be interpreted narrowly. Label—‘Men's jobs’ and ‘Women's jobs’—tend to deny employment opportunities unnecessarily to one sex or the other.”

An employer may not discriminate against men or make a woman’s level of attractiveness a requirement for a particular job category. In one case, Southwest Airlines tried to justify its policy that only attractive women could work as flight attendants and ticket agents (Wilson v. Southwest Airlines Co.; N.D.Tex.1981; 517 F.Supp. 292). The airline argued that sex appeal was a “bona fide occupational qualification” under Title VII, saying that Southwest wanted to project a “sexy image and fulfill its public promise to take passengers skyward with love.” However, the federal district court rejected Southwest’s defense.

The Law Office of Lowell J. Kuvin has filed several sex discrimination suits with the EEOC throughout Florida.

• Two very experienced male bartenders over 40 years old were fired shortly after the New Year after management decided that they wanted to go in a different direction with how the bar was staffed. Two under 40 females with significantly less experience were hired to replace the bartenders. This case is in the final stages of investigation by the Palm Beach office of the EEOC. Pellak/ Aprigliano v. Matteo’s Restaurant.

• Several persons who viewed a Craigslist advertisement for employment have filed EEOC complaints against Wowies Sports Grill in Boca Raton. Wowies ad stated “BRING YOUR GAME, we are NOW HIRING: Managers, waitresses (girls only), bartenders (girls only).” The ad is a clear violation of both state and federal laws.

Gender specific ad and sex discrimination hurts everyone in the restaurant business. Male bartenders have trouble finding jobs and many times, female employees are objectified and sometimes fired when the next better looking or more “accommodating” new bartender is hired.

If you would like to discuss your issue(s) with a Florida licensed attorney, please call or email our office. 305.358.6800 or

Thursday, July 22, 2010

Congress Extends Unemployment Benefits For Jobless.

WASHINGTON – Congress has approved legislation to restore unemployment benefits to people who have been out of work for six months or more, ending a seven-week interruption that caused 2 1/2 million people to lose unemployment benefits averaging about $300 a week.

The 272-152 House vote Thursday will send the measure to President Barack Obama, who has promised to quickly sign it. The House vote came less than 24 hours after a mostly party-line Senate vote Wednesday on the measure, which is just one piece of a larger Democratic jobs agenda that has otherwise mostly collapsed after months of battles with Republicans.

White House spokesman Robert Gibbs said Thursday Obama will sign the measure as soon as he gets it.

Retroactive payments could go out as early as next week in some states, while in others it could take a few weeks for beneficiaries to receive their money under the legislation, which provides much-needed help to 5 million eligible unemployed workers. About half of those eligible have had their benefits cut off since funding expired June 2.

"Americans who are working day and night to get back on their feet and support their families in these tough economic times deserve more than obstruction and partisan game-playing," Obama said in a statement Wednesday night.

The measure is what remains of a Democratic effort launched in February to renew elements of last year's stimulus bill. But GOP opposition forced Democrats to drop $24 billion in aid to state governments to help them avoid layoffs and higher taxes, as well as a popular package of expired tax cuts and a health insurance subsidy for the unemployed.

Most Republicans opposed the measure because it would add $34 billion to a national debt that has hit $13 trillion, arguing that it should have been paid for with cuts to other programs, such as unspent money from last year's economic stimulus bill, which is earning mixed grades at best from voters as unemployment averages 9.5 percent nationwide.

Thirty-one Republicans, about one in six, voted for the measure, while 10 Democrats opposed it.

"The other side says that these unemployment benefits stretching to almost two years are needed and must be added to the $13 trillion debt, even as they claim their trillion-dollar stimulus plan has been a success at creating millions of jobs," said Rep. Charles Boustany, R-La. "It makes you wonder if they're looking at the same jobs data as the rest of us."

It's a change of heart for many Republicans who voted for deficit-financed unemployment benefits in the past, including twice during George W. Bush's administration. Earlier this year, Republicans allowed a temporary unemployment measure to pass without even calling for a roll call vote.

Opinion polls show that deficits and debt are of increasing concern to voters, however, especially with Republicans' core conservative supporters and the tea party activists whose support they're courting in hopes of retaking control of Congress.

Democrats countered that many economists say unemployment benefits boost the economy since most beneficiaries spend them immediately, injecting money into the economy. But any such effects are likely to be modest when measured against a $14.6 trillion economy.

"Unemployment benefits protect those who are have lost their jobs through no fault of their own but would lead to more jobs, higher wages, and a stronger economy for all Americans," countered Speaker Nancy Pelosi, D-Calif. "The money will be spent immediately on necessity, injecting demand into the economy, creating jobs."

The first 26 weeks of jobless benefits are paid for by the states. Thursday's legislation renews a federally financed program providing up to 73 additional weeks of benefits in states with high unemployment rates.

About half of those eligible have had their benefits cut off since funding expired June 2. They are eligible for lump-sum retroactive payments that are typically delivered directly to their bank accounts or credited to state-issued debit cards.

In states like Pennsylvania and New York, the back payments should go out next week, officials said. In others, like Nevada and North Carolina, it may take a few weeks for all of those eligible to receive benefits.

Monday, June 7, 2010

Miami Dade Wage Theft Ordinance

Miami-Dade commissioners tackle wage theft

Kudos to Miami-Dade County for acting on behalf of low-wage workers by requiring companies to do the right thing and pay within two weeks of workers doing a job.

The issue of wage theft has many dimensions, including employers who pay less than minimum wage such as restaurants and clubs, do not pay earned overtime wages, renege on contractual promises to workers and cheat workers out of their full hours worked.

Last spring the Research Institute on Social and Economic Policy at Florida International University and the Women's Fund of Miami-Dade presented the findings of the Portrait of Women's Economic Security in Greater Miami. The report identified the impact of wage theft on women's economic security.

Women in the cleaning and caring professions, such as domestic workers and nannies, and those in the agriculture industry are particularly vulnerable to wage theft.

More than half of families headed by a single female with at least one child under 18 at home earn less than $25,000 a year.

Only 26 percent of working women in Miami-Dade County have a retirement or pension plan compared to the national average of 41 percent. Economic security for women means security for their families, thus improving the community.

There is more work to be done, but the Miami-Dade County Commission's regulation is a big step forward.
As one of the only counties in the country with a wage-theft ordinance, our community is leading the nation on this issue. We congratulate commissioners for defending the rights of women and men to receive fair pay for a day's work by enacting the Miami Dade Wage Theft Ordinance.

Saturday, May 29, 2010

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

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.

Sunday, April 25, 2010

Tampa Restaurant Review - Seasons 52

Tampa Restaurant Review - Seasons 52

My wife and I had a fantastic lunch today at Seasons 52 a trendy restaurant that serves seasonally inspired dishes that are healthy and delicious.
Our server, Haley, was very pleasant and knowledgeable about every aspect of their menu. She was attentive without being overbearing and has a great sense of humor.
However, being the employment and labor lawyer that I am, I noticed that the servers ALL seem to be under 40 years old. Statistically, given that the late Baby Boomers and early Gen X make up more than 0% of the population in the Tampa area, the 0% of over age 40 servers was to say the least, disappointing. Of course, this was my only visit to the restaurant, however, I suppose I should have seen at least one server my age from my generation.
There is not any reason whatsoever that a restaurant’s server staff cannot reflect the demographics of the surrounding area. Take for example, Luna Café located on Biscayne Blvd and 44 Street in Miami Florida. Their staff is a cornucopia of ages, ethnicities, and gender (at least two) and the food, service and ambience are top notch. Being over 40 should not preclude you from being a server in any restaurant if you can do the job.
Stephen Judge is the president of the chain and I hope he reads my blog and decides to make an effort to investigate my claim and/or to recruit servers who are over the age of 40.

Sunday, April 18, 2010

Muslim woman denied job at Detroit McDonald's files complaint

DETROIT ( April 15, 2010 ) A Muslim woman from Troy filed a bias complaint today, saying she was denied a job at a McDonald's restaurant in Rochester Hills because of her religion and ethnicity. A McDonald's official said their restaurant chain does not discriminate and has accommodated religious headwear for years.

Nasihah Barlaskar, 19, wears an Islamic head scarf known as a hijab. She told the Free Press that during a job interview on March 27, a manager at McDonald's asked her about her nationality. The manager then asked "if I had to wear that thing on my head," according to Barlaskar.

Barlaskar said she replied: "I do. Is that a problem?"

The manager then told Barlaskar she probably wouldn't be able to wear that if she was working, according to Barlaskar.

Barlaskar filed the complaint with the EEOC, Equal Opportunity Employment Commission, the U.S. agency that deals with job discrimination. It was filed with the help of Dawud Walid, head of the Michigan chapter of the Council on American-Islamic Relations.

Joan Rachelson, director of operations for McDonald's Michigan region, said in a statement that the restaurant has a "strict policy prohibiting any form of discrimination."

She said the allegations "are not consistent with our policies."

Barlaskar, who was born in the United States, said it wasn't proper for the manager to ask her about her nationality. Barlaskar's parents are immigrants from Bangladesh.

Barlaksar said she filed the complaint because "I don't want other people to go through what I went through. ... If no one speaks up, this will continue to happen, this won't be the last time. We have to stand up."

In July 2008, two Muslim women, Toi Whitfield of Detroit and Quiana Pugh of Dearborn, complained after a manager at a McDonald's restaurant in Dearborn said they could not wear Islamic headscarves at work. Nabih Ayad, their attorney, filed suit and he said today that the case may go to trial in a couple of months.

Barlaskar said she is a college student who was looking for a part-time job so she wouldn't have to rely on her parents for expenses like gas money. She said her father was recently laid off.

After the interview with the manager, Barlaskar said she did not hear back from her. She said she then called back the McDonald's and was told by the manager that they had hired someone else.

Rachelson, the McDonald's official, said: "It is never our intention to offend anyone. ... We require all employees to comply with local, state and federal employment laws and continually strive to maintain a positive restaurant environment in which everyone feels valued and accepted."

© Detroit Free Press; Distributed by McClatchy-Tribune Information Services, 2010

Friday, April 9, 2010

Workers strike over ban on drinking at work

(Reuters) - A few hundred warehouse workers and drivers at Danish brewer Carlsberg halted work for a second day on Thursday to protest a company decision to limit beer drinking at work to lunch breaks.

The strike in Denmark followed the company's April 1 decision to introduce new rules for employees on beer drinking at work, said Jens Bekke, spokesman at the world no.4 brewer.

"There has been free beer, water and soft drinks everywhere," he said. "Yesterday, beers were removed from all refrigerators. The only place you can get a beer in future is in the canteen, at lunch."

Bekke said drivers retained an old right to three beers per day outside lunch hours, and warehouse workers claimed the same right.

"Because of that, the warehouse staff went on strike yesterday, with other staff striking in sympathy," he said.

Bekke said as many as 800 had walked out on Wednesday, with 250 still on strike on Thursday, and the Confederation of Danish Industry and trade union 3F had agreed to look into the dispute.

He said there would be no shipments from Copenhagen on Thursday, and delays in the rest of the country, but said he expected the financial effect of the strike to be minor.

He added that Carlsberg's trucks have alcohol locks so drivers would not be able to drink too much and drive.

(Reporting by Anna Ringstrom, editing by Paul Casciato)

Saturday, April 3, 2010

Going on Spring Break and Getting Arrested; Should Have Stayed At Home.

Division of Alcoholic Beverages and Tobacco Arrests 1,092 Underage Drinkers this Spring Break

March 30, 2010

TALLAHASSEE—Agents with the Florida Division of Alcoholic Beverages and Tobacco arrested 1,092 people for underage drinking during statewide spring break enforcement efforts. Vacationers flocked to Florida’s beaches during the month of March, and ABT agents patrolled spring break hot spots including, Panama City, Daytona, Melbourne, Ft. Lauderdale, Ft. Myers, Orlando, Jacksonville and Miami, to protect underage youth from the dangers of alcohol consumption. ABT agents arrested 39 for selling or giving alcoholic beverages to the underage, 50 for providing false identification to a law enforcement officer, and four for narcotics

“Considering the thousands of students who traveled to Florida during this three-week period, we increased efforts to stop underage drinking during this time. I am proud of our ABT agents who helped protect underage Floridians and visitors,” said Interim Secretary Charlie Liem.

Saturday, March 27, 2010

Miami-Dade Has New Wage Theft Ordinance

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.

Saturday, March 20, 2010

L.A. eatery charged with serving whale meat closes

LOS ANGELES (Reuters) – A Los Angeles-area sushi restaurant that made international headlines after it was charged with serving endangered whale meat will close forever as a "self-imposed punishment," according to a statement on its website.

The parent company of the The Hump, a popular Santa Monica restaurant, and sushi chef Kiyoshiro Yamamoto were charged on March 11 with violating the Marine Mammal Protection Act, which makes it illegal to sell whale meat.

Federal prosecutors have said that the case stemmed from informants who were served whale meat at The Hump in October 2009 and evolved into a sting operation by U.S. wildlife and customs officials.

The federal charge carries a maximum penalty of one year in federal prison and a maximum fine of $100,000 for an individual or $200,000 for an organization.

A statement on the website said the eatery, which was picketed by protesters after the charges made news around the world, would be shuttered as of Saturday.

"The Hump hopes that by closing its doors, it will help bring awareness to the detrimental effects that illegal whaling has on the preservation of our ocean ecosystems and species," the statement said.

"Closing the restaurant is a self-imposed punishment on top of the fine that will be meted out by the court," the statement said. The restaurant apologized for its "illegal actions."

According to the statement, the restaurant's owners would make a substantial contribution to organizations dedicated to the preservation of whales and other endangered species.

The New York Times has reported that the team of activists behind the "The Cove," a film about dolphin hunting that won an Academy Award for Best Documentary Film earlier this month, coordinated with federal officials on the sting operation.

The paper said that an associate producer on "The Cove" created a tiny camera that two activists wore into the restaurant, where they were served the whale meat.

The activists sent samples to the Marine Mammal Institute at Oregon State University, which confirmed that they were from an endangered Sei whale, the Times said.

The Hump, which has only six tables and has a view of the Pacific Ocean, has been open for 12 years.

(Editing by Eric Beech)

Friday, March 19, 2010

Again: Hooters Workers File Class Action Over Tips, Uniforms

Five current and former Hooters workers filed suit Tuesday in Sacramento County Superior Court on behalf of a proposed class of nonmanager employees in five Central Valley franchises.

The complaint claims the restaurant chain workers were improperly forced to share tips with managers and to buy their own uniforms, among other alleged wage-and-hour violations. The workers are represented by Oakland solo Burton Boltuch and Morris Baller of Oakland's Goldstein, Demchak, Baller, Borgen & Dardarian.

Boltuch and Baller also represent plaintiffs in two other proposed class actions against Hooters in Alameda County Superior Court and Los Angeles County Superior Court.

The complaint filed in Sacramento makes 11 claims, focusing on the company's "Hooters Concept" and "Hooters System" as a set of "core" practices that violate wage-and-hour rights.

The Atlanta-based company did not immediately respond to a request for comment Wednesday.
The complaint draws heavily from the Hooters Employee Handbook to argue that workers' uniforms and manicured appearance form a "cornerstone" of the company, and that requiring them to pay for uniforms violates California wage-and-hour laws.

"The Hooter Girls have a uniform that they are required to wear," said Baller in an interview. "What's really shocking is that while they are given most but not all of the uniform when they report to work, when they have to replace it, they are required to buy their own uniforms from the company."

Kate Moser


Saturday, March 13, 2010

Worlds Most Expensice Cognac?

The Rémy Martin Louis XIII Black Pearl Cognac is an exclusive limited edition of their highly regarded Louis XIII Cognac. The Louis XIII Black Pearl Cognac is made using a combination of over a thousand eaux-de-vie which have been aged between forty and one hundred years each. The decanter is made by Baccarat and is made of crystal which has a blackish silver hue to it giving the effect of a black pearl. Only seven hundred and eighty six decanters will be made as that is the amount of Cognac contained within a single tierçon or barrel.

Tuesday, March 9, 2010

Fla. Tops List Of Hot Spots For New FLSA Suits

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.

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.

Saturday, March 6, 2010

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

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  If your name suggestion is used, you will receive a permanent acknowledgment on the website.

Sunday, February 7, 2010

Undocumented Workers May Sue Using 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.

Tuesday, January 26, 2010

Sushi Chefs CAN Participate in Tip Pools

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”).

Saturday, January 2, 2010

Tavern On The Green To Close

NY's Tavern on the Green's $38 Million a Year Was Not Enough

From: Associated Press

By: Verena Dobnik

NEW YORK ( Dec. 31, 2009 ) Tavern on the Green, once America's highest-grossing restaurant, is singing its culinary swan song.

The former sheepfold at the edge of Central Park, now ringed by twinkling lights and fake topiary animals, is preparing for New Year's Eve, when it will serve its last meal. Just three years ago, it was plating more than 700,000 meals annually, bringing in more than $38 million.

But that astronomical sum wasn't enough to keep the landmark restaurant out of bankruptcy court. Its $8 million debt is to be covered at an auction of Baccarat and Waterford chandeliers, Tiffany stained glass, a mural depicting Central Park and other over-the-top decor that has bewitched visitors for decades.

Even the restaurant's name is up for grabs. At stake is whether another restaurateur taking over the 27,000 square feet of space, owned by the city, can reopen as Tavern on the Green.

For 75 years, since it first opened amid the Great Depression, the Tavern has attracted clients from around the world.

"This reminds me so much of Poland!" exclaimed Vermont resident Meg Kearton as she entered for her first time in late December. "It reminds me of a restaurant in Warsaw - the grandeur and the colors."

She came for lunch a few days after Christmas, whose green and white colors fill the Tavern's year-round wonderland of lights, flowers and ornamental curved bull's-eye mirrors.

Hanging over the main Crystal Room, an all-glass dining area, is a century-old chandelier made of green glass, said to have been owned by an Indian maharajah. Two elk decked with red and green ornaments stand at the entrance, and outside is a huge King Kong topiary.

Former Tavern mogul Warner LeRoy, befitting his heritage as son of a producer of "The Wizard of Oz," searched the globe for the whimsical goods after he took over the Tavern's lease in 1973. He died in 2001, leaving the business to his wife, Kay LeRoy, and daughter Jennifer LeRoy.

As the end of the family's operating license approached, the city sought competing bids.

The LeRoys lost to Dean Poll, who operates the stylish Loeb Boathouse restaurant overlooking the Central Park lake and offered to invest $25 million on Tavern renovations. The city awarded him a 20-year license in August, citing his significant capital investment and vision; the new Tavern will incorporate green building technology while a conservatory-style dining space will complement the original Victorian architecture.

Poll also plans an outdoor cafe, bicycle racks and new public restrooms.

The LeRoys, employing more than 400 unionized workers with full benefits, couldn't match that. As the recession hit, they accrued more than 450 creditors.

A spokeswoman for the company running the auction said the LeRoys couldn't be reached for comment Wednesday, but people close to 31-year-old Jennifer LeRoy said she feels heartbroken over the closure and betrayed by a city that pulled the lease to a business her father turned into a New York icon.

The decisive moment in the intellectual-property dispute over the name comes in January. That's when a Manhattan federal judge will either side with the city and rule that the moneymaking name Tavern on the Green, valued at about $19 million, can be used by whoever operates the space or say the LeRoys own it.

If the city loses, Poll will use the name Tavern in the Park, creating a new menu of American cuisine with fresh seasonal ingredients and reopening by March, said his attorney, Barry LePatner.

"We're going to bring the park into the restaurant," said LePatner, by eliminating the thick shrubbery around the premises to reveal Sheep Meadow, where the animals grazed until 1934, housed in the 19th century Victorian Gothic shed that is part of the restaurant.

Just about everything from the current restaurant will be for sale Jan. 13 through Jan. 15 at a Guernsey's auction held live at the Tavern, with a public preview there from Jan. 6 to Jan. 12.

The city's parks department has asked the bankruptcy court to bar the sale of items that "cannot be removed without irreparably damaging the space they occupy," according to an objection that department lawyers filed in court this week.

Those items include lavish decorative elements on the Crystal Room ceiling, chestnut paneling, brass lettering for The Bar and six banquettes.

A judge has scheduled a hearing on the disputed items for Jan. 11.

The dazzling decor was once a backdrop for private milestone events as well as public celebrations from film productions and political gatherings to the special carb-loading dinner on the eve of the New York Marathon.

Recently, as many as 1,500 meals could be served a day, with dinner entrees costing $26 to $42 on a menu heavy with meat and potato dishes, plus standard seafood and a few forays into foreign fare such as risotto.

Not everyone drips with praise for this "tourist trap," as one contributor on the Web site Yelp called it.

Another Yelp contributor didn't mince words: "Besides my risotto being just eh, and besides finding a small bug on my plate, I had a fiasco getting my jacket from the coat check."

That didn't deter a smiling Diane Allen-Smith from coming for a lunch with her husband in December, three years after their Tavern wedding, on a visit from Boca Raton, Fla.

"Our wedding food was wonderful," she said. "And we didn't have to do anything for the rest."

A New York magazine reviewer once asked, "So what if the Eisenhower-era menu is strictly an afterthought?"

But the things that annoy some about Tavern on the Green are exactly what made it irresistible to fans, including three generations of a family from New York's northern suburbs.

"My parents brought us here," said Lisa Holz, who brought along her daughters, 4-year-old Kayla and 7-year-old Erika, and her husband and parents.

It would be her last time at the old Tavern on the Green, and she got sentimental.

"When I was little," she said. "I remember getting tears in my eyes when I looked at all the lights and colors."

© Associated Press, 2009

OSI Restaurants settles suit for $19M

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.”