KEARNEY, NE – A federal court has ordered a Kearney pizza and burger restaurant and its owner to pay $17,216 – $8,608 in back wages and an equal amount in liquidated damages – to 13 workers after the U.S. Department of Labor found overtime and recordkeeping violations of the Fair Labor Standards Act.

U.S. District Court Judge Richard G. Kopf entered the judgment and injunction against The Flippin Sweet Eateries and its owner, Jason B. Alexander and prohibited them permanently from future FLSA violations. The court entered the default judgment after the defendants failed to comply with court orders and respond to a complaint filed in 2019 by the department.

The department’s Wage and Hour Division found the restaurant wrongly classified workers as exempt from overtime, when they were not. Consequently the employer failed to pay employees overtime at time-and-one-half their hourly rate when they worked more than 40 hours in a workweek and failed to maintain accurate records of employees’ wages, both FLSA violations.

“A federal court has held this employer accountable to complying with federal wage laws and court orders and ordered them to pay 13 workers not only their hard-earned wages, but also damages to help make up for the fact that they weren’t paid properly,” said Wage and Hour Division District Director Marcy Boldman in Des Moines, Iowa. “The Wage and Hour Division is committed to ensuring that all workers receive their rightfully earned wages and that employers abide by the law. Other employers should use the outcome of this case as an opportunity to review their own pay practices to ensure they comply.”

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). Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division.

Secretary of Labor vs. The Flippin Sweet Eateries, Jason B. Alexander

Civil Action Number: 7:19-cv-5005

WASHINGTON, DC – The U.S. Department of Labor today announced a Notice of Proposed Rulemaking to limit the amount of non-tip producing work that a tipped employee can perform when an employer is taking a tip credit. The proposed rule clarifies when an employee is working in a tipped occupation and when a worker has performed such a substantial amount of non-tipped labor that an employer can no longer take a tip credit and must pay the full federal minimum wage to the worker.

The Fair Labor Standards Act allows employers with tipped workers to pay as little as $2.13 per hour in direct wages, while taking a credit against the tips earned by the employee to make up the balance of the federal minimum wage of $7.25 per hour.

The proposed rule also clarifies that an employer may only take a tip credit when tipped employees perform labor that is part of their tipped occupation. Work considered part of the tipped occupation includes labor that produces tips and labor that directly supports tip-producing work, so long as the employee does not perform it for a substantial amount of time. For example, waiting on tables is an example of labor that produces tips for the worker. Labor that supports a server’s tip-producing work includes a server folding napkins or refilling salt and pepper shakers.

The proposed rule also clarifies that if an employee performs work that directly supports tip-producing work for a substantial amount of time – that exceeds 20 percent of all of the hours worked during the employee’s workweek or exceeds 30 continuous minutes – that worker is no longer performing labor that is part of the tipped occupation.

The proposal clarifies that employers may not take a tip credit for work that is not part of the tipped occupation.

“Tipped workers are among those who continue to be hardest hit as we emerge from the pandemic, and the Wage and Hour Division continues to prioritize protecting these essential front-line workers,” said Wage and Hour Division Principal Deputy Administrator Jessica Looman. “This proposed rule provides more clarity and certainty for employers while better protecting workers. It helps ensure that tipped workers are treated with dignity and respect, and that they receive wages appropriate for the work they perform.”

The department invites comments from the public on the proposed rule at www.regulations.gov. The comment period closes Aug. 23, 2021.

Anyone who submits a comment (including duplicate comments) should understand and expect that the comment, including any personal information provided, will become a matter of public record. The division will post comments without change at www.regulations.gov and include any personal information provided. The division posts comments gathered and submitted by a third-party organization as a group, using a single document ID number at the site.

BLUE BELL, PA – Following a Pennsylvania federal court order that upheld the findings of a U.S. Department of Labor investigation, oil and gas industry contractor Henkels & McCoy Inc. paid more than $1 million in back wages to hundreds of employees for violating worker protection laws.

The order in the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia led Henkels & McCoy Inc. to pay $1,085,830 in back wages and damages for failing to pay required overtime wages to 362 workers at 11 worksites. The court ordered the national infrastructure contractor to pay $542,915 in back wages and an equal amount in liquidated damages to the affected employees working as machine operators and laborers in Pennsylvania, Connecticut, Georgia, New York and West Virginia.

The lawsuit followed an investigation by the department’s Wage and Hour Division that found the employer violated overtime and recordkeeping requirements of the Fair Labor Standards Act. The division determined the violations occurred during construction of interstate natural gas pipelines and at other natural gas facilities in the five states.

Henkels & McCoy violated the FLSA when the company: 

• Failed to pay workers required overtime rates when they worked more than 40 hours in a workweek. These employees averaged 60-hour workweeks.
• Failed to include daily lump sum payments made to workers when calculating their overtime rates. The employer characterized these payments as “per diems,” despite the fact that they had no relationship to any actual travel or work-related expenses.
• Paid operators a daily lump sum characterized as “truck rental pay,” but again failed to include these payments in operators’ regular rates when calculating their overtime pay. The employer paid these lump sums to operators for each day they worked, regardless of whether the operators actually used their personally owned vehicles for any work-related purposes.
• Failed to keep accurate records of employee travel or work-related expenses, when employees used personally owned vehicles for any work-related purposes.

“Hard-working employees in the construction industry deserve to be paid every cent they have earned,” said Wage and Hour Division Principal Deputy Administrator Jessica Looman. “The U.S. Department of Labor holds employers accountable, and we hope that other employers in this industry use the outcome of this investigation as an opportunity to review their own pay practices to ensure they comply with the law.”

“This employer has paid a significant cost for violating the law and for attempting to disguise wages as reimbursements,” said Deputy Solicitor of Labor Elena Goldstein. “This lawsuit demonstrates that the U.S. Department of Labor is committed to protecting workers, and will use every tool at our disposal to do so.”

Founded in 1923 and headquartered in Blue Bell, Henkels & McCoy Inc. is a wholly owned subsidiary of Henkels & McCoy Group Inc. The 11 worksites in the division’s investigation are located in Sweet Valley, Hughesville and Honesdale, Pennsylvania; Montrose and Hopewell Junction, New York; East Granby, Connecticut; Ripley and Culloden, West Virginia and Adairsville, Georgia.

View the complaint and consent judgment.   

For more information about the FLSA and other laws enforced by the division, contact its toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division.

CAMPBELLSVILLE, KY – The U.S. Department of Labor’s Wage and Hour Division enforces the labor provisions of the federal H-2A temporary agricultural workers program to prevent employers from exploiting temporary, nonimmigrant workers hired for seasonal agricultural work and from gaining an unfair competitive advantage over law-abiding employers.

An investigation of a Campbellsville tobacco and hemp farm offers an example of why this enforcement is necessary and how attempting to impede an investigation resulted in the division debarring the farm’s operator from participating in the program for three years.

An investigation by the division of a farm operated by David Hunt found that the Hunt Farm failed to reimburse H-2A workers for travel expenses they incurred returning to their home countries, as the law requires. Investigators also found the employer failed to provide work-related contracts to employees, failed to pay prevailing wages and failed to offer at least three-fourths the hours promised in the workers’ contracts, all of which the H-2A program requires. In addition, the employer attempted to impede the division’s investigation by unduly delaying access to workers, records, and housing, and by providing false information.

Following the investigation, the U.S. Department of Labor’s Office of Administrative Law Judges approved a settlement ordering Hunt to pay $25,905 in back wages to 46 workers to resolve the violations. Hunt is also required to pay a $13,281 civil penalty and is debarred from participation in the H-2A program for three years.

“These workers, who are away from their families for months at a time, deserve to be paid every penny they rightfully earn,” said Wage and Hour Division District Director Karen Garnett-Civils in Louisville, Kentucky. “This investigation underscores the department’s commitment to using any and all enforcement strategies at our disposal to protect the rights of these employees, and to level the playing field for employers who obey the law.”

For more information about the H-2A and other laws enforced by the Wage and Hour Division, contact the division’s toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division.

LAS VEGAS – A Las Vegas hospital that required workers to complete necessary paperwork without pay after their daily shifts ended also manipulated employee time cards to avoid paying overtime, a federal investigation has found.

The U.S. Department of Labor’s Wage and Hour Division found Centennial Hills Hospital Medical Center – a subsidiary of Universal Health Services Inc. – violated the Fair Labor Standards Act by failing to pay employees for all hours that they worked. The employer also willfully manipulated workers’ timecards in an attempt to avoid paying overtime by reducing the total number of work hours recorded.

Following the investigation, the division recovered $145,402 in back wages for 23 employees. The division also assessed Centennial with $19,090 in penalties for its willful violations and cited the employer for their failure to maintain accurate records of employees’ hours worked.

“Workers must be paid all of their hard-earned wages,” said Wage and Hour Division District Director Higinio Ramos in Las Vegas. “Centennial Hills Hospital Medical Center shortchanged their workers and made it more difficult for them to provide for themselves and their families. The employer also gained an unfair competitive advantage over law-abiding employers. Other employers should use the outcome of this investigation as an opportunity to evaluate their own pay practices to ensure they comply with the law.”

Universal Health Services Inc. – one of the nation’s largest healthcare management companies – owns and operates Centennial Hills Hospital Medical Center. Based in King of Prussia, Pennsylvania, UHS manages 400 acute care hospitals, behavioral health facilities and ambulatory centers across the U.S., Puerto Rico and the U.K.

For more information about the FLSA and other laws enforced by the division, contact the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division.

KEY WEST, FL – Business owners must understand their legal responsibilities to pay overtime when it comes to their workers, as well as any workers employed through staffing companies, to avoid costly violations, a lesson learned by the operators of three Key West restaurants. 

U.S. Department of Labor Wage and Hour Division investigations found overtime violations of the Fair Labor Standards Act when Fish Dance Inc., Thirsty Mermaid LLC, and Antonia’s KW LLC, operators of Little Pearl, Thirsty Mermaid, and Antonia’s Key West respectively, failed to pay overtime to workers employed through a staffing company, as well as their own workers, when they worked more than 40 hours in a workweek. The investigation also found Antonia’s paid one employee a flat salary with no overtime pay, resulting in additional overtime violations when the employee worked more than 40 hours in a workweek. 

Paradise Hospitality Solutions LLC, a Key West staffing agency, was used by all three restaurants. When workers are jointly employed by staffing companies and their clients, both are responsible for compliance and both are liable for back wages, liquidated damages, and civil penalties if there are violations of Fair Labor Standards Act violations. 

The department recovered $162,310 in back wages for 45 workers in the three restaurants to resolve the violations. 

“Essential workers deserve to take home every penny of their hard-earned wages,” said Wage and Hour Division District Director Daniel Cronin, in Miami. “Leased or temporary employees are entitled to the same workplace rights as all other employees. We remain committed to ensuring that all workers get paid the wages they have earned, and to enforcing the law so that employers compete on a level playing field.”

For more information about the FLSA and other laws enforced by the division, contact the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division.

OLYPHANT, PA – A federal court has entered a consent judgment resolving a U.S. Department of Labor lawsuit filed after an investigation found that an Olyphant home healthcare agency failed to pay 98 nurses overtime wages they legally earned – including payment for ancillary work and work-related travel – in violation of federal law.

The U.S. District Court for the Middle District of Pennsylvania in Scranton has ordered Revolutionary Home Health Inc. to pay $66,000 in back wages and an equal amount in liquidated damages to 98 registered nurses and licensed practical nurses. Revolutionary Home Health must also pay $8,000 in civil penalties the department assessed given the repeat nature of the violations and the employer’s reckless disregard of the Fair Labor Standards Act.

The department’s Wage and Hour Division found Revolutionary Home Health failed to do the following:

• Pay 98 registered nurses and licensed practical nurses required overtime when they worked more than 40 hours in a workweek. Instead, the agency paid employees on a “per-unit” basis and set a dollar amount per patient, with a different dollar amount assigned to certain types of visits, regardless of how many hours these employees worked.
• Pay employees for time spent performing duties outside of patient visits, such as attending meetings, getting supplies at the employer’s office, completing reports and traveling between clients and facilities.
• Include bonuses in the calculation when determining workers’ overtime rates. Excluding these amounts resulted in the employer paying overtime at rates lower than those required by law.
• Maintain accurate time records. The employer failed to record the number of hours employees worked on a weekly or daily basis. Records also excluded time spent attending meetings, getting supplies at the employer’s office, contacting patients outside of work hours, completing reports and traveling between clients and facilities. 

“Failing to pay employees all the wages they have rightfully earned not only harms the workers and their families, it also puts law-abiding employers at a competitive disadvantage,” said Wage and Hour District Director Alfonso Gristina in Wilkes-Barre, Pennsylvania. “We encourage other employers in the home healthcare industry to evaluate their own pay practices to ensure they comply with the law, and avoid violations like these.”

“This judgment sends a clear message to employers that failure to pay employees their rightfully earned wages comes at a high cost,” said Regional Solicitor Oscar L. Hampton III in Philadelphia.

View the complaint and consent judgment. 

Revolutionary Home Health Inc. provides home care to elderly, adults, expectant mothers and children. Based in Olyphant, the agency has branch offices in Fort Washington and Allentown.

For more information about the FLSA and other laws enforced by the agency, contact the division’s toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division. 

GAINESVILLE, FL – Roofing workers face hard work in hot weather, the risks of working at dangerous heights and, for 30 employees of a Gainesville contractor, concerns about not getting paid all of the wages they legally earned.

During a recent U.S. Department of Labor Wage and Hour Division investigation of Perry Roofing Inc. – which operates as Perry Roofing Contractors – the division found the employer violated overtime and recordkeeping requirements of the Fair Labor Standards Act. The division determined that Perry Roofing failed to include production-related and profit-sharing bonuses in the calculation when determining workers’ overtime rates. By doing so, the employer paid workers less for their overtime hours than the law requires. Perry also failed to record start and stop times for workers paid by piece-rate.

Investigators also found the employer illegally banked regular and overtime earnings for workers recruited from Gainesville’s Santa Fe Bridge Community Work Release Center. The division found that the employer paid the release center minimum wage for the employees’ first 40 hours worked, and then withheld the difference between the workers’ hourly rate and the minimum wage rate, plus payment for any overtime hours. Perry then allowed workers to draw from the overtime bank as needed in the form of gift cards or other advances. The law requires employers to pay workers for all the hours they have worked on their regular payday.

The investigation resulted in the recovery of $31,673 in back wages for 30 workers.

“Employers must pay their workers all of the wages they have earned. This case shows the Wage and Hour Division’s commitment to respect and protect workers, and to ensure that happens,” said Wage and Hour Division District Director Wildalí De Jesús, in Orlando, Florida. “We encourage other employers to use this investigation’s outcome as an opportunity to review their own pay practices to ensure they comply with the law.”

The division offers numerous compliance assistance toolkits to help construction industry employers learn about their obligations under federal law.

For more information about the FLSA and other laws enforced by the division, contact the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division, and use its search tool if you think you may be owed back wages collected by the division.

DURHAM, NC – Federal wage laws ensure that government contractors fulfill their legal obligations, among them paying required wage rates and fringe benefits to workers employed with federal funds to provide services to the government. When contractors violate these laws, the U.S. Department of Labor’s Wage and Hour Division acts.

In April 2017, the U.S. Environmental Protection Agency awarded Perkins Management Services Co. a contract to provide food service staffing at the agency’s cafeteria on the Research Triangle Park campus in Durham.

After a recent investigation, an Administrative Law Judge issued an order to debar Perkins Management Services Co., a Charlotte food service staffing provider, for failing to meet its obligations to workers at an EPA cafeteria in Durham. The action prevents the employer from bidding on federal contracts for 3 years because of its violations of the Contract Work Hours and Safety Standards and the McNamara-O’Hara Service Contract Acts.

Perkins Management Services will also pay $27,687 in back wages to 14 workers to resolve violations of wage requirements found by Wage and Hour Division investigators.

Investigators determined that Perkins Management violated the SCA by paying two cooks hourly wage rates lower than the prevailing wage rates required for their occupations. During the first months of the contract, the employer also failed to pay the cooks required fringe benefits.

Investigators also found Perkins Management failed to provide paid vacation to all eligible workers on the contract, and paid overtime at rates lower than those the law requires.

“Prevailing wage standards provide a safety net of fair wages to workers, their families and communities, and enable local contractors and subcontractors to compete on a level playing field,” said Wage and Hour Division District Director Richard Blaylock in Raleigh, North Carolina. “Taxpayers have a right to expect that federal contractors – who are paid with tax dollars – will comply with the law, and the Labor Department will not allow companies to abuse that trust.”

For more information about the laws enforced by the division, contact the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division.

TAMPA, FL – Restaurant workers who prepare and serve sushi take great care to provide their customers a great experience. A recent investigation by the U.S. Department of Labor found the operator of one Tampa sushi restaurant less than careful in how it paid wages to 12 kitchen workers and a manager.

An investigation by the department’s Wage and Hour Division has recovered $150,749 in back wages and liquidated damages for workers to resolve minimum wage and overtime violations of the Fair Labor Standards Act by KS Japanese Food Service LLC, which operates as Matoi Sushi on N. Dale Mabry Highway.

Investigators determined Matoi Sushi paid workers flat salaries, regardless of the number of hours they worked each workweek. By doing so, the employer violated overtime laws when employees worked more than 40 hours in a workweek. Minimum wage violations occurred when those flat salaries failed to cover all the hours employees worked at the federal minimum wage of $7.25 per hour. Some workers took home less than $6 per hour. In addition, investigators found a kitchen manager was due overtime back wages because the worker’s salary of $230 per week fell far short of the required minimum of $684 per week to qualify for the overtime exemption for salaried managers.

“These workers rely on receiving all the wages they have legally earned,” said Wage and Hour Division District Director Nicolas Ratmiroff in Tampa, Florida. “Employers may elect to pay workers on any schedule they choose – weekly, bi-weekly, monthly, or any other timeframe. They must, however, still track hours weekly to determine when overtime is due. They must also understand that paying workers a fixed salary does not excuse them automatically from paying overtime. We encourage anyone with questions to call us, confidentially, to speak with a trained wage and hour professional.”

The Wage and Hour Division enforces the law regardless of workers’ immigration status, and can speak with callers in more than 200 languages. For more information about the FLSA and other laws enforced by the division, contact its toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division.