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

03-19-2010

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