Archive for the ‘Minimum Wage’ Category

The U.S. Department of Labor has recovered $71,809 in minimum wage and overtime back wages for 48 workers jointly employed by GHM Wentworth LLC, doing business as Wentworth by the Sea Hotel in New Castle, and contractor Eco-Clean New England Inc., doing business as The Cleaning Crew in Londonderry. Wentworth contracted its housekeeping and kitchen work through Eco-Clean; consequently, the companies were jointly responsible for ensuring compliance with the Fair Labor Standards Act.

An investigation by the Labor Department’s Wage and Hour Division found that employees, many of whom traveled more than 120 miles daily between the Boston area and New Castle, were not properly compensated. Employees were paid “straight time” wages rather than time and one-half their regular rates of pay for hours worked in excess of 40 during a single week, as required by the FLSA’s overtime provisions. Additionally, minimum wage violations resulted when the employers failed to provide wages owed from several payrolls and when some resort employees were not compensated for all hours of their work.

GHM Wentworth Inc. has agreed to pay all back wages due the affected employees and to maintain future compliance with the FLSA. The company also has committed to ensuring full compliance by all contractors with which it has a joint employment relationship. Specifically, the company will require Eco-Clean to submit weekly payroll documents to ensure that the jointly employed workers are being paid proper wages for all hours worked.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour as well as time and one-half their regular hourly rates for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law.

If you believe you are owed for unpaid overtime or wages you should contact the U.S. Department of Labor or a law firm that handles wage and hour litigation. Feel free to contact Scott Behren and the Behren Law Firm for a free consultation.


Under the Fair Labor Standards Act, you are entitled to be paid time and a half for each hour worked over 40 in a given week. When computing these hours, the employer should normally include off the clock training.

Following an investigation by the U.S. Department of Labor’s Wage and Hour Division, Tulsa-based United States Beef Corp., doing business as Arby’s, has agreed to pay $56,838 in back wages to 759 current and former hourly paid managers in Arkansas, Illinois, Kansas, Missouri and Oklahoma.

Investigators found that at 255 Arby’s locations in the five states, bonuses paid to managers were not included in regular rates of pay when overtime was computed. The Fair Labor Standards Act requires that covered employees be paid time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week.

Additionally, managers in training at an Arby’s in Wichita, Kan., were required to review training material outside of their work hours and not properly compensated for this time. Under the FLSA, employees must receive at least the federal minimum wage of $7.25 for all hours worked.

“We are pleased that this company has agreed to change its practices to comply with the Fair Labor Standards Act,” said Cynthia Watson, regional administrator for the department’s Wage and Hour Division in the Southwest. “The Wage and Hour Division actively pursues systemic violations by multi-state employers wherever employees are affected by bad practices.”

If you believe you have not been paid properly by your employer speak to the U.S. Department of Labor or an attorney that specializes in wage and hour law. Feel free to call Scott Behren and the Behren Law Firm for a free consultation.


You may recall that I posted some months ago about a lawsuit filed against the State of Florida accusing it of violating the State constitution by refusing to raise the minimum wage on January 1 to reflect the increase in cost of living.

Well guess what? Florida’s minimum wage will increast to $7.31 an hour from the current $7.25 an hour as a result of a circuit court judge ruling this week.

Leon County Circuit Court Judge Terry Lewis ruled that the State of Florida violated Florida’s Constitution by failing to raise the Florida minimum wage on January 1 to reflect last year’s increase in the cost of living, as required by a constitutional amendment approved by Florida voters in 2004.

The state minimum wage will increase to $7.31 an hour effective June 1st. The new minimum wage for tipped workers will also rise by 6 cents, from $4.23 to $4.29 an hour.

In 2004, Floridians voted to amend the state’s Constitution to enact for the first time a state minimum wage. Under the voter-approved amendment, the state minimum wage increases every January to keep pace with any increase in the cost of living during the preceding year, and does not decrease in those rare instances where the cost of living dips.

In the lawsuit, the plaintiffs charged that the state had used an erroneous formula in calculating annual adjustments in the minimum wage, instead of using the method required by the Florida Constitution. The agency’s method resulted in a decrease to Florida’s 2010 minimum wage and would have artificially held down subsequent increases, including 2011’s, by factoring in a brief dip in the cost of living during 2009.

Judge Lewis ruled that under the Florida Constitution, the minimum wage can never be decreased and that, accordingly, the correct minimum wage this year is $7.31 – six cents more than the $7.25 federal minimum wage. Judge Lewis’ ruling also requires that the state calculate future annual increases to the minimum wage using the formula laid out in Florida’s Constitution.

Its a huge victory for Florida minimum wage employees. While it is not a big difference in hourly rate, I’m sure every little bit helps in this tough economy.

If you have questions about the minimum wage in Florida or your employee legal rights, feel free to call Scott Behren and the Behren Law Firm for a free consultation.


The Indian-American owner of two Indian restaurants in the Los Angeles area has been found violating the minimum wage act, following which the US Department of Labor has recovered USD 92,870 in back wages for 22 employees.

The two establishments owned and operated by Chandrakant Patel are Jay Bharat Foods Inc, doing business as Jay Bharat, and Standard Foods LLC, doing business as Standard Sweets and Snacks.

“It is against the law to not pay workers at least the minimum wage,” said Priscilla Garcia, the director of the Wage and Hour Division’s West Covina District Office.

The press release was issued in Hindi and English. Investigators found that employees of both restaurants were required to work an average of 55 hours a week and paid “straight time” wages, rather than time and one-half their regular rate of pay, for hours worked in excess of 40 per week, as required by the FLSA.

Additionally, accurate records of employees’ work hours and wages were not kept, in violation of Fair Labor Standards Act (FLSA) record-keeping provisions.

After conducting employee interviews and reviewing payroll records, investigators determined that Jay Bharat owed a total of USD 41,428 in minimum wage and overtime back wages to 12 employees and Standard Sweets and Snacks Restaurant owed USD 53,442 in minimum wage and overtime back wages to 10 employees.

Patel agreed to pay all back wages due to the affected employees and committed to maintaining future compliance with federal minimum wage, overtime and record-keeping requirements, the Department of Labor said.

The FLSA requires that covered employees be paid at least the federal minimum wage of USD 7.25 for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 hours per week.

If you believe you are not being paid the overtime or regular pay you are owed, call Scott Behren and the Behren Law Firm for a free consultation about your rights under the FLSA.


While the New Year in many states in the U.S. promoted raises in the minimum wage, that was not the case in the State of Florida. In response, The National Employment Law Project and Florida Legal Services, representing several individuals and workers’ organizations, filed a lawsuit against Florida’s Agency for Workforce Innovation on Monday, blasting the department for not raising the state’s minimum wage to reflect inflation.

The plaintiffs represent farm, restaurant, nursery and service employees, day laborers and other low-wage workers.

According to the NELP press release:

Since January 1st, approximately 188,000 minimum wage workers have been denied a six-cent raise to $7.31 an hour, in violation of Florida’s Constitution, which requires Florida’s Agency for Workforce Innovation (AWI) to increase the minimum wage each year for inflation.
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Yes thats right gentle readers….Bank of America can now not only be blamed for taking bailout money and not giving any benefit to consumers from it or lending their part to the mortgage crisis, now it appears, at least based upon the allegations of a pending lawsuit, that they also don’t pay their workers in accordance with the Fair Labor Standards Act.  Every time I read this type of stuff, it makes my blood boil: they mess up the economy, get paid by us to fix their own mistakes, all the while cheating consumers and employees.

The lawsuit filed Friday in federal court in Kansas City, Kansas, consolidates 12 lawsuits filed on behalf of employees in California, Florida, Kansas, Texas and Washington.   It seeks nationwide class-action status on behalf of employees at retail branches and call centers over the last three years.

According to the 44-page complaint, the largest U.S. bank by assets requires employees to work in excess of eight hours per day or 40 hours per week, yet fails to pay them both for overtime and for all straight time worked.

The complaint also accuses the bank of requiring employees to work during unpaid breaks, failing to provide meal and rest breaks, and failing to timely pay terminated employees for earned wages and accrued vacation time.

Yes thats right all of these things that I have blogged about that an employer SHOULD NOT BE DOING, apparently Bank of America is guilty of doing.  Of course, just because they were sued does not mean they did anything wrong, I guess we will see how that lawsuit progresses.

So just a reminder, if your employer is making you work in excess of forty hours a week, without overtime pay, or making you work during lunches or not paying you for accrued vacation upon termination, speak to the U.S. Department of Labor or an employment law attorney.  As employees, don’t let your employers take advantage of you.


So another restaurant chain is found to be in violation of the Fair Labor Standards Act.

Dallas-based restaurant chain Texas De Brazil Corp. has agreed to pay $177,502 in overtime and back wages to 715 former and current wait staff, including $14,574 to 42 employees at its location in Downtown Memphis. In addition to Memphis, Texas De Brazil has agreed to pay these back wages to current and former wait staff at properties in the Dallas-Forth Worth area; Miami and Orlando, Fla.; Richmond-Fairfax, Va.; Denver; and Schaumburg, Ill.

The agreement follows an investigation by the U.S. Department of Labor’s Wage and Hour Division which found that workers were not properly paid overtime as required by federal law. Under the Fair Labor Standards Act, restaurants must pay wait staff at least $2.13 per hour, but if that pay and combined tips fall below the federal minimum wage of $7.25 an hour, the employer must make up the difference and bring an employee’s pay up to the minimum wage. FLSA also requires that employers pay workers time and a half their regular rate of pay for any hours worked beyond 40 hours per week.

So as you know this has been a previous blog topic of mine, Hard Rock Cafe and many other restaurant chains have been failing to comply with Federal laws in paying their servers. Make sure you are not one of them. If you are a restaurant server and feel that you are getting underpaid or that you are wrongfully being asked to give your tips to other employees, speak with an employment lawyer who handles FLSA cases.


In many instances these days, employees are coming to my office with questions about tips, what hourly rate an employee who gets tips must be paid and whether an employer may retain all or any portion of its employee’s tips.  This posting is intended to address some of these issues.  Much of this information is taken from the U.S. Department of Labor’s fact sheet on this issue.

Tipped employees are those who customarily and regularly receive more than $30 a month in tips. Tips actually received by tipped employees may be counted as wages for purposes of the FLSA, but the employer must pay not less than $2.13 an hour in direct wages.

If an employer elects to use the tip credit provision the employer must:

1) Inform each tipped employee about the tip credit allowance (including amount to be credited) before the credit is utilized.

2) Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined.

3) Allow the tipped employee to retain all tips, whether or not the employer elects to take a tip credit for tips received, except to the extent the employee participates in a valid tip pooling arrangement.

If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the minimum hourly wage — $7.25 an hour effective July 2009– the employer must make up the difference.

The law forbids any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer. A tip is the sole property of the tipped employee. Where an employer does not strictly observe the tip credit provisions of the Act, no tip credit may be claimed and the employees are entitled to receive the full cash minimum wage, in addition to retaining tips they may\should have received.

A compulsory charge for service,  (service charge) for example, 15 percent of the bill, is not a tip. Such charges are part of the employer’s gross receipts. Where service charges are imposed and the employee receives no tips, the employer must pay the entire minimum wage and overtime required by the Act.

Tip Pooling: The requirement that an employee must retain all tips does not preclude tip splitting or pooling arrangements among employees who customarily and regularly receive tips, such as waiters, waitresses, bellhops, counter personnel (who serve customers), busboys/girls and service bartenders. Tipped employees may not be required to share their tips with employees who have not customarily and regularly participated in tip pooling arrangements, such as dishwashers, cooks, chefs, and janitors. Only those tips that are in excess of tips used for the tip credit may be taken for a pool. Tipped employees cannot be required to contribute a greater percentage of their tips than is customary and reasonable.

Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, then the employer may pay the employee the tip, less that percentage. This charge on the tip may not reduce the employee’s wage below the required minimum wage. The amount due the employee must be paid no later than the regular pay day and may not be held while the employer is awaiting reimbursement from the credit card company.

If your employer is retaining your tips, you may want to consult with an employment lawyer.  In addition, if your tips plus hourly wage are not exceeding the minimum wage or you do not believe you are getting paid for overtime, than you should consult with an employment lawyer.  If you have problems with any of these issues you can also contact the U.S. Department of Labor.


Many times a student intern is working for an employer without getting paid for the hours worked. In addition, when the intern is not paid as an employee, they are also not entitled to the benefits of other employment laws such as those prohibiting sexual harassment and discrimination.

So the question is when must a student intern be paid and treated as an employee rather than merely an intern? Well the Department of Labor has recently released some guidelines that give some information as to when a student intern needs to be paid an hourly wage and/or overtime pay.  See the attached Fact Sheet.  Department of Labor Fact Sheet on Interns

The Department of Labor has opined that the intern is not entitled to be paid an hourly wage where the intern is working for his or her own educational benefit.

In order to qualify for this limited exception, the internship must meet a six-factor test:

The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment.

The more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience.

The internship experience is for the benefit of the intern.

In essence, the more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training.

The intern does not displace regular employees, but works under close supervision of existing staff.

If the employer would have hired additional employees or required current employees to work additional hours but for the presence of interns, the internship better resembles an employment relationship.

The employer that provides the training derives no immediate advantage from the activities of the intern and on occasion its operations may actually be impeded.

If the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training.

The intern is not necessarily entitled to a job at the conclusion of the internship; and

The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The fact sheet notes that the internship should be for a fixed duration, and not be used as a trial period in which the employer evaluates the intern’s work performance for future work.
If all of these criteria are met, an employment relationship is not deemed to exist, and FLSA requirements do not apply. However, the exemption is supposed to be interpreted narrowly so if there is any doubt, it would be deemed to be an employment relationship rather than an internship.   However, in each case, you should confer with an employment attorney to determine whether you would be deemed an employee or not.