Restaurant employers beware! Restaurants are the target of a highly successful, U.S. Department of Labor Wage and Hour Division (WHD) restaurant enforcement and compliance initiative that WHD already has used to nail a multitude of restaurants across the country for “widespread violations” of Fair Labor Standards Act (FLSA) minimum wage, overtime, child labor and other wage and hour laws (WH Law).

Having reportedly found WH Law violations in “nearly every one” of the WH Law investigations conducted against restaurant employers during 2016 and recovered millions of dollars of back pay and penalties from restaurants caught through investigations conducted under its WHD Restaurant Enforcement Initiative, WHD Administrator Dr. David Weil recently confirmed WHD plans to expand the restaurant employers targeted for investigation and other efforts to punish and correct WH Law violations under the Restaurant Enforcement Initiative through 2017 in an October 5, 2016 WHD News Release: Significant Violations In The Austin Restaurant Industry Raise Concerns For Us Labor Department Officials (News Release).

The News Release quotes Administrator Weil as stating:

The current level of noncompliance found in these investigations is not acceptable …WHD will continue to use every tool we have available to combat this issue. This includes vigorous enforcement as well as outreach to employer associations and worker advocates to ensure that Austin restaurant workers receive a fair day’s pay for a fair day’s work.

Given the substantial back pay, interest, civil or in the case of willful violations, criminal penalties, costs of defense and prosecution and other sanctions that restaurant employers, their owners and management can face if their restaurant is caught violating FLSA or other WH Laws, restaurants and their leaders should arrange for a comprehensive review within the scope of attorney-client privilege of the adequacy and defensibility of their existing policies, practices and documentation for classifying, assigning duties, tracking regular and overtime hours, paying workers and other WH Law compliance responsibilities and opportunities to mitigate risks and liabilities from WH Law claims and investigations.

Many Restaurants Already Nailed Through Restaurant Enforcement Initiative

Even before the planned 2017 expansion of its Restaurant Enforcement Initiative, WHD’s enforcement record shows WHD’s efforts to find and punish restaurants that violate WH Laws are highly successful. Restaurant employers overwhelmingly are the employers targeted by WHD in the vast majority of the WH Law settlements and prosecutions announced in WHD News Releases published over the past two years, including aggregate back pay and penalty awards of more than $11.4 million recovered through the following 31 actions announced by WHD between January 1, 2016 and October 31, 2016:

• US Labor Department Investigation Finds Thundercloud Subs Owes Nearly $128K In Back Wages, Damages To Austin Restaurant Workers (October 20, 2016);
• US Labor Department Announces Hotline To Offer Updates To Capitol Hill Cafeteria Workers Owed Back Wage Payments (October 20, 2016);
• US Labor Department Recovers More Than $570K In Back Wages, Damages For 55 Workers At Johnny Rockets Restaurants In Washington Metro Area (October 11, 2016);
• Portland, Texas, Restaurant Settles Worker Retaliation Allegation After US Labor Department Finds Nine Employees Owed $25K In Back Wages (October 06, 2016);
• Providence Restaurant, Owner To Pay $567K In Back Wages, Damages To 104 Employees Denied Minimum Wage, Overtime Pay (September 23, 2016);
• US Labor Department Investigation Finds Capitol Hill Cafeteria Workers Illegally Denied More Than $1M In Wages By Federal Food Service Contractors (July 26, 2016);
• El Azteca Restaurant Group To Pay $700K In Back Wages, Damages To 129 Workers At Four Wisconsin Eateries (July 26, 2016);
• Historic Oklahoma City Restaurant Pays Workers $52K In Back Wages, Damages After Labor Department Investigation (June 22, 2016);
• Kissimmee, Florida, Restaurant To Pay Nearly $41KIn Back Wages To 15 Employees After US Department Of Labor Investigation (June 15, 2016);
• Court Orders Buffet Restaurant, Owners To Pay $128K In Back Wages, Penalties To Resolve Allegations Of Federal Minimum Wage, Overtime Violations (June 09, 2016);
• Grand Rapids Restaurant, Owners Agree With Court Order To Comply With Federal Record-Keeping Rules After Department’s Wage And Hour Investigation (May 31, 2016);
• Court Judgment Orders Four Phoenix-Area Federico’s Mexican Food Restaurants To Pay Workers $202KIn Overtime Back Wages, Damages (May 24, 2016);
• US Labor Department Investigation Finds Child Labor, Minimum Wage And Other Violations At Street’s Seafood Restaurant (May 17, 2016);
• US Labor Department Initiative Finds 14 Lawrence Restaurants Owe More Than $112K In Back Wages To 130 Workers (May 17, 2016);
• US Labor Department Obtains Order To Stop Arlington Restaurant Owners From Intimidating Workers Who Cooperate With Federal Investigators (May 16, 2016);
• Charleston Restaurants’ Minimum Wage, Overtime Violations Result In Nearly $217K In Back Wages For 26 Employees (May 9, 2016);
• Las Investigaciones Dieron Como Resultado Casi $1.2 Millones En Salarios Retroactivos Y Daños Y Perjuicios Para Más De 100 Trabajadores En 13 Restaurantes En El Área De Charleston and Investigations Result In Nearly $1.2M In Back Wages, Damages For More Than 100 Workers At 13 Charleston Area Restaurants (April 19, 2016);
• Clairmont Diner Will Pay $213K In Back Wages, Damages And Penalties After Federal Wage And Hour Investigation (March 30, 2016);
• Tampico Restaurants Agree To Pay $190K In Back Wages To 67 Workers (March 26, 2016);
• S. Labor Department Lawsuit Seeks Back Wages And Damages For Austintown, Ohio Restaurant Workers (March 16, 2016);
• Popular Cajun Food Enterprise Will Pay More Than $138K In Back Wages, Penalties Following U.S. Labor Department Investigation (March 07, 2016);
• US Labor Department Initiative Finds Ames Restaurants Owe Nearly $100K In Back Wages To More Than 150 Workers (March 02, 2016);
• S. Labor Department Sues To Recover Unpaid Minimum Wage, Overtime Plus Additional Damages For Akron Restaurant Workers (February 25, 2016);
• Paying To Work? Sophia’s House Of Pancakes Resolves Allegations Servers Made To Pay $2 Per Hour To Work At Restaurants (February 16, 2016)($245K);
• Two Hawaii Restaurants Found In Violation Of Overtime Pay Requirements (February 10, 2016)($81,294);
• Labor Department Launches West Coast Sweep To Investigate Pay Practices At Fast Food Establishments To Ensure Fairness, Compliance (February 4, 2016);
• Sushi And Ramen Restaurants Pay $621K In Back Wages, Damages And Penalties After US Labor Department Investigation (January 25, 2016)
• Federal Judge Overturns Jury Verdict, Orders El Tequila Restaurants And Owner Carlos Aguirre To Pay $2.1 Million In Back Wages And Damages To Workers (January 14, 2016);
• Taqueria La Herradura En Pharr, Texas, Paga Más De $33 Mil En Concepto De Salarios Retroactivos Y Daños Al Personal De La Cocina Después De Una Investigación Del Departamento De Trabajo De Ee.Uu.(January 12, 2016);
• Investigations At 10 North Carolina Restaurants Find More Than $510K In Back Wages Owed To 125 Workers (January 12, 2016);
• Restaurant Enforcement Initiative Finds More Than $2.27M In Back Wages, Damages Owed To More Than 3,000 Georgia Workers (January 05, 2016).

Enforcement Actions Highlight Common Restaurant WH Law Compliance Concerns

Restaurant employers, like employers in most other industries, are subject to a host of minimum wage, overtime and other requirements including the FLSA requirement that covered, nonexempt employees earn at least the federal minimum wage of $7.25 per hour for all regular 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 are required to maintain accurate time and payroll records and must comply with child labor, anti-retaliation and other WH Law requirements.

The News Release identified some of the common violations WHD uncovered in these investigations included employers:

• Requiring employees to work exclusively for tips, with no regard to minimum-wage standards;
• Making illegal deductions from workers’ wages for walkouts, breakages, credit card transaction fees and cash register shortages, which reduce wages below the required minimum wage;
• Paying straight-time wages for overtime hours worked.
• Calculating overtime incorrectly for servers based on their $2.13 per hour base rates before tips, instead of the federal minimum wage of $7.25 per hour.
• Failing to pay proper overtime for salaried non-exempt cooks or other workers;
• Creating illegal tip pools involving kitchen staff;
• Failing to maintain accurate and thorough records of employees’ wages and work hours.
• Committing significant child labor violations, such as allowing minors to operate and clean hazardous equipment, including dough mixers and meat slicers.

Use Care To Verify Tipped Employees Paid Properly

Based on the reported violations, restaurants employing tipped employees generally will want to carefully review their policies, practices and records regarding their payment of tipped employees. Among other things, these common violations reflect a widespread misunderstanding or misapplication of special rules for calculating the minimum hourly wage that a restaurant must pay an employee that qualifies as a tipped employee.  While special FLSA rules for tipped employees may permit a restaurant to claim tips (not in excess of $5.12 per hour) actually received and retained by a “tipped employee,” not all workers that receive tips are necessarily covered by this special rule. For purposes of this rule, the definition of “tipped employee” only applies to an employee who customarily and regularly receives more than $30 per month in tips.

Also, contrary to popular perception, the FLSA as construed by the WHD does not set the minimum wage for tipped employees at $2.13 per hour. On the contrary, the FLSA requirement that non-exempt workers be paid at least the minimum wage of $7.25 per hour for each regular hour worked also applies to tipped employees. When applicable, the special rule for tipped employees merely only allows an employer to claim the amount of the tips that the restaurant can prove the tipped employee actually received and retained (not in excess of $5.13 per hour) as a credit against the minimum wage of $7.25 per hour the FLSA otherwise would require the employer to pay the tipped employee. Only tips actually received by the employee may be counted in determining whether the employee is a tipped employee and in applying the tip credit.  If a tipped employee earns less than $5.13 per hour in tips, the restaurant must be able to demonstrate that the combined total of the tips retained by the employee and the hourly wage otherwise paid to the tipped employee by the restaurant equaled at least the minimum wage of $7.25 per hour.

Furthermore, restaurant or other employers claiming a tip credit must keep in mind that the FLSA generally provides that tips are the property of the employee. The FLSA generally prohibits an employer from using an employee’s tips for any reason other than as a credit against its minimum wage obligation to the employee (“tip credit”) or in furtherance of a valid tip pool.

Also, whether for purposes of applying the tip credit rules or other applicable requirements of the FLSA and other wage and hour laws, restaurant employers must create and retain appropriate records and other documentation regarding worker age, classification, hours worked, tips and other compensation paid and other evidence necessary to defend their actions with respect to tipped or other employees under the FLSA and other WH Law rules. Beyond accurately and reliably capturing all of the documentation required to show proper payment in accordance with the FLSA, restaurants also should use care to appropriately document leave, discipline and other related activities as necessary to show compliance with anti-retaliation, equal pay, family and medical leave, and other mandates, as applicable.  Since state law also may impose additional minimum leave, break time or other requirements, restaurants also generally will want to review their policies, practices and records to verify their ability to defend their actions under those rules as well.

Child Labor Rules Require Special Care When Employing Minors

While hiring workers under the age of 18 (minors) can help a restaurant fulfill its staffing needs while providing young workers valuable first time or other work experience, restaurants that hire minors must understand and properly comply with any restrictions on the duties, work hours or other requirements for employment of the minor imposed by federal or state child labor laws.

As a starting point, the legal requirements for employing minors generally greater, not less, than those applicable to the employment of an adult in the same position.  Employers employing workers who are less than 18 years of age (minors) should not assume that the employer can pay the minor less than minimum wage or skip complying with other legal requirements that normally apply to the employment of an adult in that position by employing the minor in an “internship” or other special capacity. The same federal and state minimum wage, overtime, safety and health and nondiscrimination rules that generally apply to the employment of an adult generally will apply to its employment of a worker who is a minor.

Beyond complying with the rules for employment of adults, restaurants employing minors also must ensure that they fully comply with all applicable requirements for the employment of minors imposed under the FLSA child labor rules and applicable state law enacted to ensure that when young people work, the work is safe and does not jeopardize their health, well-being or educational opportunities.   Depending on the age of the minor, the FLSA or state child labor rules may necessitate that a restaurant tailor the duties and hours of work of an employee who is a minor to avoid the substantial liability that can result when an employer violates one of these child labor rules.

The FLSA child labor rules, for instance, impose various special requirements for the employment of youth 14 to 17 years old. See here.  As a starting point, the FLSA child labor rules prohibit the any worker less than 18 years of age from operating or cleaning dough mixers, meat slicers or other hazardous equipment. Depending on the age of the minor worker, the FLSA child labor rules or state child labor laws also may impose other restrictions on the duties that the restaurant can assign or allow the minor to perform.  Restaurants hiring any worker that is a minor must evaluate the duties identified as hazardous “occupations” that the FLSA child labor rules prohibit a minor of that age to perform here as an “occupation” and take the necessary steps to ensure the minor is not assigned and does not perform any of those prohibited activities in the course of his employment.

In addition to ensuring that minors don’t perform prohibited duties, restaurants employing minors also comply with all applicable restrictions on the hours that the minor is permitted to work based on the age of the minor worker.  For instance, the FLSA and state child labor rules typically prohibit scheduling a minor less than 16 years of age to work during school hours and restrict the hours outside school hours the minor can work based on his age.  Additional restrictions on the types of jobs and hours 14- and 15-year-olds may work also may apply.

Compliance with the FLSA child labor rules is critically important for any restaurant or other employer that employs a minor, particularly since the penalties for violation of these requirements were substantially increased in 2010, as Streets Seafood Restaurant learned earlier this year.

According to a WHD News Release, Street’s Seafood Restaurant paid $14,288 in minimum wage and overtime back wages and an equal amount in liquidated damages totaling $28,577 to eight employees, and also was assessed a civil money penalty of $14,125 for FLSA child labor violations committed in the course of its employment of four minors ages 15 to 17. Specifically, investigators found Street’s Seafood Restaurant:

• Required minors to operate, dismantle, clean and reassemble a meat slicer and a dough mixer.
• Required a 17-year-old to operate a motor vehicle to transport food to catering events.
• Required a 15-year-old to work more hours than allowed by law.
• Paid some workers only $6 per hour, below the required federal minimum wage of $7.25 per hour.
• Paid employees straight time for overtime when they worked more than 40 hours in a week, instead of paying them time-and-one-half, as the law requires.
• Failed to maintain proof of age of minors.
• Failed to maintain required time and payroll records.

WHD’s announcement of the settlement resolving these child labor laws quotes Kenneth Stripling, director of the division’s Birmingham District Office as stating:

Employing young people provides valuable experience, but that experience must never come at the expense of their safety …Additionally, employers have an obligation to pay employees what they have legally earned. All workers deserve a fair day’s pay for a fair day’s work. Unfortunately, Street’s Seafood violated not only child labor laws, but has also shorted workers’ pay. The resolution of this case sends a strong message that we will not tolerate either of those behaviors.

Restaurants Must Act To Minimize Risks

Beyond WHD’s direct enforcement actions, WHD also is seeking to encourage private enforcement of WH Law violations by conducting an aggressive outreach to employees, their union and private plaintiff representatives, states and others. Successful plaintiffs in private actions typically recover actual back pay, double damage penalties plus attorneys’ fees and costs. The availability of these often lucrative private damages makes FLSA and other WH Law claims highly popular to disgruntled or terminated workers and their lawyers.  When contemplating options to settle claims WH Law claims made by a worker, employers need to keep in mind that WHD takes the position that settlements with workers do not bar the WHD from taking action unless the WHD joins in the settlement and in fact, past settlements may provide evidence of knowingness or willfulness by the employer in the event of a WHD prosecution.  The substantial private recoveries coupled with these and other WHD enforcement and other compliance actions mean bad news for restaurant employers that fail to manage their FLSA and other WH Law compliance.  Restaurant employers should act within the scope of attorney-client privilege to review and verify their compliance and consult with legal counsel about other options to minimize their risk and streamline and strengthen their ability to respond to and defend against audits, investigations and litigation.

Beyond verifying the appropriateness of their timekeeping and compensation activities and documentation, restaurants and staffing or management organizations working with them also should use care to mitigate exposures that often arise from missteps or overly aggressive conduct by others providing or receiving management services or staffing services. All parties to these arrangements and their management should keep in mind that both parties participating in such arrangements bear significant risk if responsibilities are not properly performed.   Both service and staffing providers and restaurants using their services should insist on carefully crafted commitments from the other party to properly classify, track hours, calculate and pay workers, keep records, and otherwise comply with WH Laws and other legal requirements.  Parties to these arrangements both generally also will want to insist that these contractual reassurances are backed up with meaningful audit and indemnification rights and carefully monitor the actions of service providers rendering these services.

About The Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,”“Tax: Erisa & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney and management consultant, author, public policy advocate and lecturer widely known for work, teachings and publications.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce, internal controls and regulatory compliance, change management and other performance and operations management and compliance. She supports her clients both on a real-time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares shared her thought leadership, experience and advocacy on these and other concerns by her service in the leadership of a broad range of other professional and civic organization including her involvement as the Vice Chair of the North Texas Healthcare Compliance Association, Executive Director of the Coalition on Responsible Health Policy and its PROJECT COPE: Coalition on Patient Empowerment, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children; former Board Compliance Chair and Board member of the National Kidney Foundation of North Texas, current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, immediate past RPTE Representative to ABA Joint Committee on Employee Benefits Council Representative and current RPTE Representative to the ABA Health Law Coordinating Council, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.

Ms. Stamer also is a highly popular lecturer, symposia chair and author, who publishes and speaks extensively on health and managed care industry, human resources, employment, employee benefits, compensation, and other regulatory and operational risk management. Examples of her many highly regarded publications on these matters include the “Texas Payday Law” Chapter of Texas Employment Law, as well as thousands of other publications, programs and workshops these and other concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications and speaks and conducts training for a broad range of professional organizations and for clients on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

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