Type of Action: Fair Labor Standards Act Lawsuit Filing
Names of Defendants: Salsitas, Inc. doing business as Salsitas Mexican Restaurant & Cantina, and Oscar McBenttes
Complaint: The U.S. Department of Labor has filed a lawsuit in federal court to recover approximately $21,390 in back wages and an equal, additional amount in liquidated damages totaling $42,780 for 17 employees of the Austintown restaurant. The suit also seeks an injunction against the company to prevent future FLSA violations.
An investigation by the department’s Wage and Hour Division revealed the company and its part-owner, Oscar McBenttes, violated the minimum wage, overtime and record-keeping provisions of the FLSA. The firm failed to pay servers and wait staff for all hours worked and, as a result, these employees were not paid the current $7.25 per hour federal minimum wage for all of their hours. The employer paid a number of workers a fixed daily rate, or a fixed weekly rate regardless of the number of hours they worked in a given day or week. Investigators also found the company improperly classified two salaried cooks as exempt from overtime. When these employees worked beyond 40 hours in a workweek, they were not paid legally required overtime. The firm also failed to maintain accurate time and pay records.
The Wage and Hour Division assessed civil money penalties of $7,947 for repeated and willful violations of the FLSA. A previous investigation found similar violations at the Austintown location in 2012, and the company paid a total of $33,813 in back wages at that time.
Quote: “Employees in the restaurant industry are some of the most vulnerable workers we see. Many have limited English proficiency, and for a variety of reasons may be unlikely to step forward to complain when subjected to wage violations,” said George Victory, district director for the Wage and Hour Division in Columbus. “Denying these hard-working restaurant employees their legally required overtime pay hurts the workers and their families, and gives an employer an unfair competitive advantage over law-abiding employers. Other employers should take note that we will use all tools at our disposal to protect workers and level the playing field for law-abiding employers.”
Information: Simply paying an employee a salary does not necessarily mean the employee is not eligible for overtime. The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the department's regulations. On June 30, 2015, the Wage and Hour Division announced a Notice of Proposed Rulemaking to update the regulations defining which white-collar workers are eligible to receive pay for hours worked over 40 in a workweek. For more information, please visit www.dol.gov/whd/overtime/NPRM2015.
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week. The FLSA generally provides that employers who violate the law are liable to employees for their back wages and an equal amount in liquidated damages. Liquidated damages are paid directly to the affected employees. Additionally, the law requires employers to maintain accurate time and payroll records and prohibits retaliation against employees who exercise their rights under the law. For more information about the FLSA and other federal wage laws, call the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at www.dol.gov/whd/fmla.
Court: U.S. District Court for the Northern District of Ohio, Eastern Division
Docket Number: 4-16-cv-00618