PALMETTO, FL – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), Utopia Fresh South LLC – operating as Taylor & Fulton Packing LLC in Palmetto, Florida – has paid $87,920 in back wages to 109 employees for violating overtime and recordkeeping requirements of the Fair Labor Standards Act (FLSA).

WHD investigators found the employer was ineligible for an agricultural exemption it claimed and, as a result,   failed to pay employees overtime for hours they worked beyond 40 in a workweek. Investigators determined that the employer purchased tomatoes from multiple growers not owned by Taylor & Fulton and repacked them. The agricultural exemption from the overtime requirements applies only to employees involved in growing product or processing and packaging products grown only by that company. Once employees were packing goods brought in from other suppliers, the exemption did not apply, and they were due overtime.

The employer also failed to maintain records of the number of hours employees worked, as required by the FLSA. 

"This case serves as a reminder to agricultural employers that packing house workers who handle comingled goods from multiple growers must be paid overtime," said Wage and Hour Division District Director James Schmidt. "We encourage all employers to review their employment obligations and to contact the Wage and Hour Division for compliance assistance. We have a wide variety of educational materials available to help them understand their responsibilities."

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the toll-free helpline at 866-4US-WAGE (487-9243). Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. Information is also available at https://www.dol.gov/whd.

PHILADELPHIA, PA – Two Philadelphia restaurants, J.H.S.K, Inc. and Osaka Japan Restaurant, Inc., both doing business as Osaka, and their owner, have agreed to a consent judgment ordering them to pay $935,000 in back wages and liquidated damages to 201 employees for willful violations of the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). The employers must also pay a $65,000 civil money penalty. The consent judgment must be approved by the U.S. District Court for the Eastern District of Pennsylvania.

The employers agreed to the $1 million settlement midway through the first day of a weeklong bench trial. The consent judgment permanently enjoins the employers from violating the FLSA in the future.

Investigations conducted by the U.S. Department of Labor's Wage and Hour Division (WHD) exposed willful violations of the FLSA at the Osaka restaurants in Philadelphia and Lansdale, Pennsylvania.

WHD investigators determined that from at least September 1, 2013, the employers deducted and pocketed 15 percent of customer tips charged on credit cards, well in excess of the 4 percent fee charged by credit card processors.

The employers also failed to notify tipped employees, including servers, bartenders, bussers, and hosts, that the restaurants were claiming a portion of their customer tips as a credit toward the minimum wage, which is required under the FLSA. Because the employers claimed the tips as a "credit" for the difference between the employees' actual hourly wages and the $7.25 full minimum wage, these actions meant that the employers failed to comply with the FLSA's tip credit requirements and therefore violated the FLSA's minimum wage requirement. 

"Employees must by paid the wages they have legally earned. The Wage and Hour division works to ensure that employees are aware of their rights and helps employers come into compliance with the law," said Wage and Hour Division District Director Jim Cain in Philadelphia.

Additionally, the employers violated the FLSA's overtime provisions since at least September 1, 2013. The employers failed to pay employees the proper time-and-a-half overtime premium for work beyond 40 hours per week. Hourly tipped employees received straight time for all hours worked, even when their time records clearly showed them working more than 40 hours. The employers also paid sushi chefs, hibachi chefs, kitchen cooks, and dishwashers flat daily rates ranging from $80-$150 for all hours worked, even when their time records clearly showed them working upwards of 50-60 hours per week. The company also failed to maintain records required by the FLSA.

"Tip credit and overtime violations are, unfortunately, common in the restaurant industry," said Regional Solicitor Oscar L. Hampton III in Philadelphia. "This enforcement action and settlement helps to ensure  employees are paid at least the federal minimum wage and their lawfully earned overtime pay and also that all employers in the restaurant industry can operate on a level playing field."

The FLSA requires that covered, nonexempt employees be paid at least the minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers also must maintain accurate time and payroll records.

WHD is committed to providing employers with the tools they need to assist them in fulfilling their obligation to understand and comply with the variety of laws the Division enforces. Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program.

For more information about the FLSA and other federal wage laws, call the Division's toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd.

OAKLAND, CA – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), EWC & Associates Inc. – a Northern California owner and operator of two horse training facilities – will pay $1,270,683 in back wages and damages to 30 employees for multiple work visa program and wage violations.

A consent judgment filed in the U.S. District Court for the Northern District of California requires EWC & Associates Inc. - doing business as Portola Valley Training Center in Menlo Park and as Gilroy Gaits in Hollister - to pay back wages and damages, plus an additional $100,000 in civil penalties. The judgment also enjoins EWC & Associates, and owner Kevin Chambers from applying for any labor certification applications, including under the H-2B temporary visa program, for one year.

WHD investigators found the employer failed to pay employees the correct prevailing wage rates required under the H-2B visa program, and also failed to pay the promised rates under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

Investigators also determined EWC & Associates Inc. violated the Fair Labor Standards Act (FLSA) when it paid employees straight time for overtime hours. In addition, the employer:

• Collected kickbacks from the workers' H-2B visa fees;
• Made impermissible deductions for transportation costs to and from the workers' home countries;
• Provided unsafe and unhealthy housing conditions for employees, such as housing employees in converted stables with no running potable water; and
• Failed to keep required records of overtime worked and deductions made from workers' pay.

"The U.S Department of Labor will take all steps necessary to ensure employees receive the wages that they have rightfully earned," said Wage and Hour Division District Director Susana Blanco, in San Jose. "This judgment makes clear our commitment to making sure that employers who break the law don't gain an unfair advantage over law-abiding competitors."

For more information about the H-2B temporary visa program, FLSA, MSPA, and other laws enforced by the Wage and Hour Division, contact the Division's toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at https://www.dol.gov/whd including a search tool to use if you think you may be owed back wages collected by the Division.

PORTLAND, OR – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), Vasquez Family Services – a farm labor contractor – and housing provider Jorge Vasquez were assessed $35,000 in civil penalties after violations of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) left farm workers living in squalid living conditions at their facility in Silverton, Oregon. Vasquez Family Living Services will pay $30,000 in civil penalties for the violations, and housing provider Jorge Vasquez will pay $5,000.

During an unannounced inspection, WHD investigators found farmworkers living in dilapidated, trash-strewn housing with no hot water for showers or working fire extinguishers. They also found workers sleeping on mattresses on the floor, and sleeping quarters for one couple's family separated from others only by a garbage bag hung from the ceiling. Residents also reported seeing rodents throughout the facility.

"Farm labor contractors that provide housing to migrant farmworkers are required to ensure that it meets required health and safety standards," said Wage and Hour Division District Director Thomas Silva, in Portland. "Our agency conducts widespread educational events and offers extensive compliance assistance to growers, farm labor contractors, and other agricultural stakeholders to ensure that employers understand their responsibilities and that workers are housed and transported safely. We encourage anyone with questions about these requirements to call us for information or to visit our website for guidance."

WHD officials worked with the Oregon Occupational Safety and Health Administration and the Mexican Consulate to move the workers to better living conditions after determining that the conditions could not immediately be abated.

MSPA protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures, and recordkeeping. For general information on MSPA, please see the Employment Law Guide or the WHD's MSPA fact sheet.

To operate legally as farm labor contractors, individuals and companies must register with the U.S. Department of Labor. Farm labor contractors that intend to house, transport, or drive a migrant or seasonal agricultural worker must meet special requirements. Application materials and instructions are available online.

Employees and employers with questions about MSPA or any of the federal laws administered by the Division should call the agency's toll-free helpline at 866-4US-WAGE (487-9243). All calls are confidential. More information also is available online.

MINNEAPOLIS, MN – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), Administrative Law Judge Theresa Timlin has issued an order requiring TLC Precision Wafer Technologies Inc. – based in Minneapolis, Minnesota – to pay a former employee $43,366 in back wages for violating the labor provisions of the H-1B visa program. Additionally, the company has been ordered to pay pre-judgment and post-judgement interest.

The H-1B visa program permits American employers to employ nonimmigrants to work temporarily in specialized occupations in the U.S when they cannot otherwise obtain needed business skills and abilities from the U.S. workforce.

WHD investigators found that the employer failed to pay a microfabrication engineer the required wages as stated in the H-1B visa application it filed, and failed to maintain required records. Judge Timlin denied credit for the firm's cash payments of $14,150 to the worker because it failed to report the payments on its payroll records and report the payments to the Internal Revenue Service, as required by the regulations for such credit.

"The intent of the H-1B foreign labor certification program is to help American companies find the highly skilled talent they need when they can prove that a shortage of U.S. workers exists," said Wage and Hour District Director David King in Minneapolis. "The resolution of this case demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and ensure no one is being paid less than they are legally owed."

The Department's investigation found that TLC Precision Wafer Technologies Inc. filed an H-1B petition to hire the engineer at a salary of $43,000 annually. The employee left TLC after he was not paid according to the labor provisions required under the H-1B visa program, and after the employer reduced his hours and pay.

The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers, as well as to protect the H-1B nonimmigrant workers. Employers must attest to the Department that they will pay wages to the H-1B nonimmigrant workers at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.

For more information about wage laws enforced by WHD, contact the Division's toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at https://www.dol.gov/whd including a search tool to use if you think you may be owed back wages collected by WHD.

BLOOMINGTON, IN – After an investigation by the U.S. Department of Labor's Wage and Hour Division (WHD), Ji Enterprises will pay $81,127 in back wages and an equal amount in liquidated damages to 12 current and former employees at two of its Bloomington, Indiana, restaurants – Restaurant Ami and Toto's Uncle.

• Minimum wage violations resulting from paying employees $7 per hour during training, less than the federal minimum wage of $7.25 per hour;
• Overtime violations when some employees worked more than 40 hours in a workweek without being paid overtime at one-and-one-half times their hourly rates, or were incorrectly classified as exempt from overtime and paid a flat salary; and
• Recordkeeping violations resulting from the employer's failure to accurately record the number of hours employees worked.

"This investigation found a significant amount of back wages due and demonstrates the U.S. Department of Labor's commitment to ensure employees receive all the wages they have legally earned," said Wage and Hour Division District Director Patricia Lewis, in Indianapolis. "We encourage employers to make use of the many tools the Division provides to help them understand their obligations, and to contact us for assistance."

Ji Enterprises will pay 10 employees of Restaurant Ami a total of $148,367 and two employees of Toto's Uncle a total of $13,887, representing both back wages and liquidated damages.

SAN DIEGO, CA – After a U.S. Department of Labor Wage and Hour Division (WHD) investigation, Sundance Natural Foods Company – based in Oceanside, California – will pay $13,641 in back wages to 45 employees for unpaid overtime as a result of violations of the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Worker Protection Act (MSPA). Additionally, the company was assessed $5,130 in civil penalties.

WHD investigators found the employer violated MSPA requirements by failing to provide safe transportation for employees. Violations included failing to provide working seatbelts in employer-provided transportation, failing to obtain California Highway Patrol certification for a vehicle carrying more than nine passengers, and employing a driver without the required Class B license to drive an 11-passenger vehicle.

WHD investigators also found that the employer violated overtime requirements of the FLSA when it failed to record or pay for time packing shed employees spent putting on required work equipment prior to their shifts and removing this equipment after their shifts. The employer also failed to pay overtime to one non-exempt, salaried employee who worked over 40 hours per week. Failure to record all hours employees worked, and failure to maintain documentation of the date of birth of a minor employee, also violated FLSA recordkeeping requirements.

“The laws we enforce not only ensure that employees are paid what they have legally earned, they also keep farm workers safe on the job,” said Wage and Hour Division District Director Rodolfo Cortez, in San Diego. “We encourage all employers to contact us for assistance, and to use the wide variety of tools we offer to help them understand the law and avoid violations.”

Employers that discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at https://www.dol.gov/whd including a search tool to use if you think you may be owed back wages collected by the Division.

DES MOINES, IA ­- The U.S. Department of Labor’s Wage and Hour Division (WHD) will present an educational forum about developments in its policies and regulations and its Payroll Audit Independent Determination Program (PAID), during a February 19, 2019, webinar for Iowa and Nebraska employers. PAID facilitates resolution of potential overtime and minimum wage violations under the Fair Labor Standards Act. The program’s primary objectives are to resolve such claims quickly and without litigation, to improve employers’ compliance with overtime and minimum wage obligations, and to ensure that more employees receive the back wages they are owed – faster. The forum will include a representative of the Division’s Washington, D.C., office and district staff in Des Moines, Iowa.

Complete advance registration at  https://www.eventbrite.com/e/payroll-audit-independent-determination-program-paid-tickets-55282049097?ref=ecal

For more information about the PAID program, visit www.dol.gov/whd/PAID, or call 866-4US-WAGE, or visit the agency’s website at http://dol.gov/whd. For more information about this event, call Community Outreach Resource Planning Specialist Melissa Wright at 515-323-2195 or email wright.melissa@dol.gov.

GARY, IN – After a U.S. Department of Labor’s Wage and Hour Division investigation, four contractors working on the federal Housing and Urban Development (HUD) Village of Hope housing project in Gary, Indiana, will pay 53 current and former employees a total of $255,474 for violating the Davis-Bacon and Related Acts (DBRA).

WHD investigators determined the contractors failed to pay the correct prevailing wages and fringe benefits.

The project’s prime contractor TWG Construction LLC – based in Indianapolis, Indiana – has paid $82,477 to 20 employees. TWG Construction LLC sub-contracted with a temporary staffing company that failed to pay cleaning service crews in accordance with DBRA requirements. The temporary employees were misclassified and not paid the required prevailing wage rates.

8 Aces Construction Inc. – based in Lansing, Illinois – has paid $69,022 to 19 employees. Investigators found the company failed to pay finishers, painters, and carpenters prevailing wage rates required by the DBRA. The employer also failed to pay required fringe benefits to employees. Due to the repeat and willful nature of these violations, 8 Aces Construction Inc. and owner Jose “Tony” Ochoa have been declared ineligible to bid on federal DBRA contracts for a period of 3 years. A 2017 investigation found 8 Aces owed back wages totaling $99,313 to 95 employees.

KJB Drywall LLC – based in Indianapolis, Indiana – will pay $98,367 to eight employees after one of its subcontractors failed to pay employees required prevailing wage rates and fringe benefits.

DLW LLC - operating as Drexel Interiors and based in Indianapolis, Indiana – has paid $5,608 to six flooring installers after one of its subcontractors incorrectly classified flooring installers and paid them at rates below those required for the work they performed.

“Government contractors receive detailed agreements that include prevailing wage and fringe benefits rates, required to be paid by all contractors working on a federally funded project. Prime contractors must assure that their subcontractors adhere to these rules as well,” said Wage and Hour Division District Director Patricia Lewis, in Indianapolis. “Violations can easily be avoided, and we encourage all employers to come to us for confidential assistance to understand their responsibilities under the law.”

For more information about the DBRA or other federal labor laws, call the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information is also available athttps://www.dol.gov/whd.

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U.S. Department of Labor news materials are accessible at https://www.dol.gov. The Department’s Reasonable Accommodation Resource Center converts departmental information and documents into alternative formats, which include Braille and large print. For alternative format requests, please contact the Department at (202) 693-7828 (voice) or (800) 877-8339 (federal relay).

PRINCETON, WV– The U.S. District Court for the Southern District of West Virginia has entered a consent judgment against XMV Inc. - operator of three underground coal mines – following an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD) that found XMV violated the Fair Labor Standards Act (FLSA). The judgment requires the Princeton, West Virginia, mine operator to pay $717,514 in back wages and an equal amount in liquidated damages to 214 employees.

 WHD investigators found that XMV violated the overtime provisions of the FLSA when it paid electricians, surveyors, belt and ventilation maintenance personnel, and an office clerk, flat salaries without regard to the number of hours that they actually worked. This practice resulted in overtime violations when these employees worked more than 40 hours in a workweek but were not paid overtime.  Additional overtime violations resulted when XMV failed to include bonuses earned by workers when the employer calculated their overtime rates, resulting in rates lower than those legally earned. The Division also found XMV violated the FLSA’s recordkeeping requirements when it failed to maintain required records for those employees.

“When an employer fails to ensure its employees receive the wages they’re legally owed under the FLSA, we must respond,” said Wage and Hour District Director John DuMont, in Pittsburgh. “This judgment illustrates the U.S. Department of Labor’s commitment to ensuring employees receive all the wages they have rightfully earned, and that employers compete on a level playing field.”

In addition to requiring payment of the back wages and damages, the consent judgement enjoins XMV from future FLSA violations.

“This judgment sends a clear message that disregarding the basic rights of employees carries a high cost,” said Regional Solicitor Oscar L. Hampton III, in Philadelphia.

WHD is committed to providing employers with the tools they need to understand their responsibilities and comply with the variety of laws the Division enforces. Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program. For more information about the FLSA and other laws enforced by the Division, contact its toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at http://www.dol.gov/whd including a search tool to use if you think you may be owed back wages collected by the Division.