Espresso by Bikini Servers-Baristas Coffee Sued by Department of Labor for Overtime VIolations

Under Federal law and most state laws, if you work for an employer you are legally entitled to be paid minimum wage and be paid overtime wages for each hour worked over forty in a week.  A Seattle based Coffee company (not Starbucks), is learning these laws the hard way.

The U.S. Labor Department is suing Baristas Coffee Company Inc., the Seattle-based company that employs scantily clad women to serve customers in its drive-through espresso stands, for violating labor laws.

In the lawsuit, filed in U.S. District Court for Western Washington, the Labor Department alleges that Baristas and CEO Barry Henthorn didn’t pay employees for overtime, paid less than the federal minimum wage and wrote bad checks to workers.

In addition to the unspecified amount of back wages and damages it’s seeking, the Labor Department also assessed Baristas $42,000 for violating the Fair Labor Standards Act. Baristas has its Washington state headquarters in Kent. The company has two locations in Tacoma, and one each in Auburn, Shoreline, Kent, and Seattle. It also recently announced expansion into Texas and Florida.

If you believe you are owed unpaid wages or overtime, speak with the U.S. Department of Labor or an attorney that handles wage and overtime law such as Scott Behren and the Behren Law Firm.


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High End Hair Salon Warren Tricomi Sued by EEOC for Pregnancy Discrimination

As we have blogged about, it is illegal for someone to not be hired, to be fired, or to be treated differently at work based upon pregnancy.

Warren Tricomi, a New York-based hair salon with locations in the Plaza Hotel in Manhattan and in Greenwich, Conn., violated federal anti-discrimination law when it withdrew an offer for a promotion and fired an assistant colorist when it found out she was pregnant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

According to the EEOC’s suit, an assistant colorist in the New York salon was offered a promotion to colorist at Warren Tricomi’s Greenwich, Conn., location.  On approximately August 23, 2010, the woman informed Joel Warren, a Warren Tricomi owner, that she was pregnant. He told her that the information was a lot to digest and he would have to discuss it with the other owners.  After several failed attempts to get in touch with Warren about her start date in the new position, Warren Tricomi fired the employee around September 1, 2010.

This alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.  The EEOC filed the lawsuit in the U.S. District Court for the Southern District of New York (Civil Action No.: 11 civ 6837) after first attempting to reach a voluntary settlement out of court.

Ana Martinez, trial attorney in the New York District Office, added, “A woman’s pregnancy should not affect her ability to be promoted in the workplace. Warren Tricomi was ready to promote this woman based on her qualifications, but decided it would fire her instead after finding out she was pregnant.  The EEOC will continue to fight against such unlawful discrimination.”

If you believe you have been the subject of pregnancy discrimination, speak to the EEOC or an employment lawyer that handles these types of case such as the Behren Law Firm.

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Wage Theft-Restaurant Fined over $500,000 for Unpaid Overtime and Failure to Pay Minimum Wage

Restaurant owners continue to be at the forefront of violating overtime laws.  In previous blog postings we have seen unpaid overtime, making employees work off the clock, improper tip pools, forcing the return of paychecks and now, the failure to pay minimum wage.  If you are employed by a restaurant, make sure that you hold them accountable with state and Federal Laws, under the Fair Labor Standards Act.

The former owners of a Kennewick, Washington restaurant are being told to pay $531,000 in back wages and damages to underpaid employees, the U.S. Labor Department said Wednesday.

Guang Ri Weng and Zhen Fang Weng and their company Wok King International Buffet Inc. were sued by the department after an investigation showed they had violated minimum wage, overtime and record-keeping portions of the Fair Labor Standards Act.

“Wage and Hour Division investigators found that some Wok King International Buffet employees worked an average of 63 hours a week without proper overtime compensation, and some earned wages as low as $1.93 per hour,” said Donna Hart, director of the division’s Seattle office.

If you believe your employer has engaged in wage theft, call the U.S. Department of Labor or Scott Behren and the Behren Law Firm for a free consultation.

Posted in compensation, employee, employer, employer tip pools, Fair Labor Standards Act, FLSA, Minimum Wage, tip Pooling, tip pools, Wage Theft, Wages | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

Florida DCF Found to Have Violated Overtime Laws by Department of Labor

Apparently, its not only private employers in Florida that don’t comply with overtime requirements, the State of Florida has also now been found to be guilty of such violations.  Nice work Rick Scott, keep up your excellent leadership!

For the second time in six years, a federal investigation has found the Florida Department of Children and Families violated labor laws by causing its employees to work overtime that went unrecorded and unpaid.

The U.S. Labor Department charges that between 2008 and 2010, the state agency asked child services investigators in its Miami and Northeast Florida regional offices to perform tasks they couldn’t complete within an eight-hour work day, according to documents obtained by The Ledger through public records requests.

Federal auditors concluded the resulting unrecorded and unpaid overtime hours worked by DCF employees violates the Fair Labor Standards Act, the records show.

The tasks DCF managers asked child-services investigators to perform included traveling, interviewing clients by phone and doing paperwork from their homes to meet performance standards. Auditors found the employees could not finish the tasks within an eight-hour day, leading to work unrecorded overtime.

The Department of Labor Report finds many other violations of overtime laws by Florida DCF and will be seeking to bring it in compliance as well as paying back wages to current and former employees.

If you believe you are owed overtime by your employer or back wages, go the to U.S Department of Labor or speak with a lawyer that handles wage theft issues such as Scott Behren and the Behren Law Firm.


Posted in Fair Labor Standards Act, FLSA, Overtime | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

Florida Restaurant Sued by Department of Labor For Forcing Return of Employee Paychecks

I have blogged on many occasions that employees are entitled to recover overtime for all hours worked over 40.  I have also frequently blogged about the frequent practice of employers improperly classifying employees as independent contractors.  However, this is a new one, an employer that gives employees checks and then makes the employees return them.

According to a lawsuit filed by the U.S. Department of Labor (DOL), tipped employees at the La Nopalera restaurants on Beach Boulevard and Phillips Highway received their tips plus a paycheck every week that together equaled the minimum wage. The employees were then required to sign the paychecks and give them back to management, who put the money back into the restaurants, DOL charged.

In addition to paycheck sleights of hand, the restaurants also allegedly misclassified kitchen employees as exempt, improperly denying them overtime. As a result, the restaurants and their owners were ordered to pay $584,425 in back wages plus $350,000 in damages to 30 employees, for a total tab of $934,425.

The restaurants and their owners have 13 months to complete the payments in installments, DOL said.

If your employer has failed to pay you wages owed, or are improperly classifying you as exempt, call the U.S. Department of Labor or an attorney that handles wage theft and overtime cases.  Scott Behren and the Behren Law Firm will provide you with a free consultation.


Posted in Fair Labor Standards Act, FLSA, Overtime, Wage Theft, Wages | Tagged , , , , , , , , , , , , , , , , , , , , | 1 Comment

KAG West Agrees to Pay $14 Million to Truck Drivers for Overtime Violations

Under the Fair Labor Standards Act, an employee is entitled to be paid overtime for all hours worked in a week in excess of 40.  If your employer has you work, off the clock, in excess of 40 hours per week, you are entitled to be paid time and a half or your overtime rate for all hours worked over 40.

One of the largest petroleum tank truck transporters in the country, KAG West, has agreed to pay $14 million to drivers in California to settle a Fair Labor Standards Act class action lawsuit.

According to Business Wire, drivers for KAG West said they were forced to work “off the clock” and were not paid time-and-a-half for overtime work. The settlement ends a five-year FLSA court battle after the U.S. District Court for the Northern District of California granted the case class-action status in 2008.

KAG argued that they did not have to pay drivers time-and-a-half for overtime “under the Motor Carrier Act exemption because its workers drive across state lines or carry products in a continuous stream of interstate commerce.”

Class members will receive settlements based on the “number of shifts worked during the class period,” the news report stated.

If you believe your employer has made you work overtime for which you were not paid, speak to the U.S. Department of Labor or an attorney who handles wage and hour violations.  Scott Behren and the Behren Law Firm will give you a free consultation onyour legal rights.  Also for more about employee legal rights check out


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Groupon Sued by Sales Reps for Unpaid Overtime

As many of you may know, the Fair Labor Standards Act (FLSA), requires employers to pay employees overtime for all hours worked over 40 in a given week.  There are exemptions to this requirement, for instance if you are a professional or a manager and are paid by salary, you are not subject to the overtime requirements.

Another one of the other exemptions to the overtime requirements of the FLSA is the outside salesperson exemption.  This exemption permits an employer to deny overtime pay (and minimum wages) only if a particular worker:

  • has the primary duty of (a) making “sales” or (b) obtaining orders or contracts for services or facilities usage, AND
  • is customarily and regularly engaged away from the employer’s place of business in performing such primary duty.

The information above can be found at 29 USC § 213(a)(1) and 29 C.F.R. § 541.500.

A further exemption I want to discuss is the commissioned salesperson exemption
This exemption applies to primarily commission-based salespeople. Section 7(i) of the Fair Labor Standards Act (29 USC § 207[i]) will exempt a particular employee if:

  • the employee is employed in a “retail or service establishment,” AND
  • the employee’s regular rate of pay exceeds one and one-half times the applicable federal minimum wage

Well now a former Groupon Inc. employee has filed a potential class-action lawsuit alleging illegal pay practices.

The lawsuit, filed last month on behalf of current and former employees, alleges Groupon failed to pay overtime to sales employees who cold-call businesses to get them signed up for the coupon service.  Presumably, the employee claims that she was not paid overtime and did not fall under one of these salesperson exemptions.

The suit, filed by Ranita Dailey in U.S. District Court for the Northern District of Illinois, alleges account executives at Chicago-based Groupon were not paid overtime, in violation of the Fair Labor Standards Act.

While Groupon did start paying overtime this year, it did so at an “illegally low” rate, according to Douglas Werman, an attorney representing the plaintiff. The plaintiff is seeking unspecified back wages and punitive damages.

If you are a salesperson who has not been paid overtime and you don’t feel you fall under one of these exemptions call Scott Behren and the  Behren Law Firm for a consultation.



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Outback Steakhouse Settles Claims for Unlawful Tip Pooling

Most of you probably know that employees are entitled be paid overtime for each hour worked over 40 in a given week assuming you are not exempt.  However, did you know that if you work in a restaurant or other service industry, and are paid tips which are part of your compensation, your employer is not allowed to require you to share your tips with other employees who have little or no customer contact such as managers or dishwashers?  This is called unlawful tip pooling and is generally a violation of Federal and state wage and overtime laws.

The Outback Steakhouse chain just learned about these laws the hard way.  A U.S. District Court in Minnesota approved a $1.25 million settlement between OSI Restaurant Partners LLC, parent of the Outback Steakhouse chain, and about 1,200 Outback Steakhouse servers in Minnesota, who alleged in a lawsuit that Outback unlawfully required them to share their tips with bussers and hosts.

The class-action lawsuit, which was filed in April 2010, alleged that the tip-sharing violated Minnesota Fair Labor Standards Act prohibitions on employer-run and mandated tip pools. The U.S. District Court approved the settlement Tuesday.

If you work in a restaurant or service industry and believe that your tips are being unlawfully taken from you,  speak with an employment law attorney who handles unpaid wage and overtime matters.  Feel free to consult with Scott Behren and the Behren Law Firm about these issues.

Posted in Overtime, tip Pooling, Wage Theft, Wages | Tagged , , , , , , , , , , , , , , , , , , , , | 1 Comment

What You Should Know About Recent Changes to Florida Unemployment Laws

Many of you may be aware that the Florida Legislature and Governor Rick Scott have made some major changes to Florida Unemployment of which you should be aware.  Some of the revisions, effective August 1, 2011 are set forth as follows:

First off, no more telephone or mail filings of claims.  Effective August 1, 2011, you must file initial and continued claims electronically These services will not be available by telephone or mail. The Agency for Workforce Innovation’s unemployment compensation hotline will still be available to answer questions about the filing process.

If you are receiving severance pay after your termination, you also may not be entitled to receive unemployment benefits.  Effective August 1, 2011, if your severance pay per week is equal to or greater than your weekly benefit amount, you are not entitled to benefits for that week.

Florida Unemployment has always had a requirement that you actively search for new employment, but effective August 1, 2011, you are required on a weekly basis to make contact with five potential employers and provide this information via the Internet during your bi-weekly certification for benefits.  If you are not able to make at least five employer contacts in a week, a meeting with a representative at your local One-Stop Career Center for reemployment services may satisfy this requirement for that week.

In light of changes, Florida unemployment can now disqualify you for benefits based upon conduct outside of the workplace.  The law has always provided that if you are terminated for “misconduct” you are not entitled to benefits.   However, the definition of misconduct has been amended to provide that misconduct can be found to have occurred in connection with a job whether or not it happens at the workplace or during working hours. Misconduct is no longer restricted to “a willful or wanton disregard of an employer’s interests,” but “a conscious disregard of an employer’s interests and found to be in deliberate violation or disregard of the reasonable standards of behavior which the employer expects of employees.”

The law provides that certain circumstances are misconduct. These include, but are not limited to:

    • Chronic absenteeism or tardiness;
    • Willful and deliberate violation of a standard or regulation which would jeopardize the employer’s Florida license or certification;
    • Violation of an employer’s rule under certain circumstances.

Make sure you are aware of these changes in the law.  If you are having problems getting your unemployment benefits, make sure you speak with a lawyer who handles these types of matters.  There are many deadlines that have to be followed in order to not lose any of your rights.  For a free consultation, feel free to call Scott Behren and the Behren Law Firm.

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NJ Company Held to Have Breached Contract to Reinstate Employee After Maternity Leave

Women who go on maternity leave typically have many legal issues that might arise under FMLA, the Pregnancy Discrimination Act and disability insurance policies.  A new case out of a New Jersey Court shows the interaction of some of these laws and in this instance things work our in favor of the employee which is not always the case.

After taking a year-long maternity leave following the birth of her  child, a long-time employee of Bell Communications Research was terminated. The company maintained that because her position was eliminated during a reduction in force, it was not obligated to reinstate her. The employee, however, filed claims for breach of contract and interference with her rights under the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA).

The employee stopped working on June 1, 2005, and gave birth to her son 8 days later. On June 20, 2005, the company sent her a form letter, notifying her that it had approved her 6-month leave of absence and reiterating the company policy on maternity leave.

Among other things, the letter stated, “This leave is granted with a guarantee of reinstatement up to 12 months to the same or comparable job, including the number of hours and days worked during the week, salary, and benefits prior to the Leave starting. Reinstatement is not guaranteed if your job is declared surplus or the number of hours you request to work at the time of reinstatement is different than when the Leave commenced.”

About 2 weeks before her 6-month leave was to expire, Shannon requested another 6-month leave—through July 21, 2006. The company granted the leave with the same provisions outlined above.

The employee notified the company that she planned to return to her part-time job on July 20, 2006, working the same 25 hours per week, but she agreed to work full time instead—at her supervisor’s request. Due to budgetary constraints, however, the company could maintain only one full-time ARIS release manager position. The supervisor gave that position to the release manager who had been filling in for the employee during her maternity leave, saying that that employee had better yearly performance evaluations than employee did. employee was terminated.

She filed a complaint in state court, alleging that the company had discriminated and retaliated against her in violation of the FMLA and the NJFLA by terminating her because she took maternity leave and that it had breached a contract to reinstate her employment after her leave ended. The trial court granted summary judgment to the company, and employee appealed.

The appeals court agreed with the trial court that the company “did not violate the FMLA or the NJFLA, because those statutes required reinstatement of employment only when an employee takes a twelve-week-or-less leave of absence.” Employee took a one-year leave of absence.

The appeals court reversed the grant of summary judgment on the contract claim. Employee had argued “that the two letters approving her leaves of absence and guaranteeing her job upon completion of her leave amounted to a contract, and… [the company] breached that contract by terminating her employment,” the court explained.  The Court agreed that employer could be found to have breached the contract with her.

The case is called Lapidoth v. Telcordia Technologies, Inc., Superior Court of New Jersey, Appellate Division, No. A-1545-09T1 (6/9/11)

If you are pregnant and need help navigating the FMLA, Pregnancy Discrimination Act, or any leave or disability documents, feel free to call Scott Behren and the Behren Law Firm for a consultation.


Posted in Behren Law Firm, Breach of Contract, Disability Discrimination, Disability Leave, Family Medical Leave Act, Pregnancy Discrimination | Leave a comment