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GUSTO RESTAURANT LAWSUIT
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Apr 23
BOSTON MARKET SETTLEMENT
Boston Market has agreed to settle an overtime claim for $3 million. The claim was brought on behalf of assistant managers who alleged they were wrongfully misclassified as exempt from the overtime laws. The settlement covers a nation-wide collective action pursuant to the Fair Labor Standards Act and class actions pursuant to New York and Connecticut law. Many cases involving assistant managers are fact specific, and turn on whether the employees performed menial tasks for a majority of their workday, including acting as cashier, and stock person. As a result, many of these assistant manager overtime cases tend to settle, as the company would have to spend an exorbitant amount of money in legal fees to defend the claim. If you are an assistant manager working overtime, call our firm for a free consultation.
Continue ReadingApr 9
MERRILL LYNCH FINANCIAL ADVISOR OVERTIME LAWSUIT
On April 6, 2012, Judge Katherine B. Forrest of the United States District Court, Southern District of New York granted Plaintiffs’ motion for a collective action pursuant to the Fair Labor Standards Act (FLSA). The lawsuit alleged that Merrill Lynch and Bank of America misclassified Financial Advisors as exempt salaried employees and thus, did not pay them overtime. However, because the Court found that all Financial Advisors are similarly situated, a notice will be mailed to all Financial Advisors advising them of the lawsuit and giving them an opportunity to join. The decision correctly distinguished how the standards for a 216(b) motion are different than a FRCP Rule 23 class action and that Plaintiffs need only make a modest factual showing that they are similarly situated to each other. Financial Advisors at many different companies are incorrectly misclassified and may be entitled to overtime pay. If you think you may be entitled to overtime, please call the New York City Employment Lawyers of Fitapelli & Schaffer for a free consultation.
Continue ReadingMar 27
FACEBOOK INQUIRY BY PROSPECTIVE EMPLOYER
As people find it increasingly difficult to obtain employment in the midst of the great recession, a new trend has emerged: Employers are using the poor job market as an excuse to test the boundaries of privacy laws regarding prospective candidates. Knowing full-well that individuals are desperate to secure employment, companies are attempting to secure private information as a way of screening potential applicants. For example, companies have begun requesting that potential hires provide their facebook username and password at the interview. Of course, potential hires are hesitant to provide this information, as one’s facebook page likely contains private and personal information, as well as potentially embarrassing photographs. The National Labor Relations Board will likely issue guidance on this issue, which will request that employers not request facebook information. Please read this blog regularly, as Fitapelli & Schaffer will provide frequent updates regarding this hot button issue.
Continue ReadingMar 21
ANDRES CARNE DE TRES LAWSUIT
Continue ReadingMar 7
BATALI SETTLEMENT
Mario Batali has settled a putative class and collective action lawsuit covering his restaurants in New York. The lawsuit covers tipped employees who worked for the restaurants over the past six years. The bulk of the settlement deals with tip misappropriation under New York State Law. The lawsuit alleged that Batali’s restaurants deducted the equivalent of 4-5% of each shift’s wine and beverage sales from the tip pool. In essence, the deduction amounted to stealing tips from the tipped employees such as waiters, bussers and runners. The $5 million settlement appears to be the largest unpaid wages settlement against a group of restaurants. Tip misappropriation is common in New York City restaurants, as tipped employees routinely have to tip-out managers and other non-tip eligible employees such as silver polishers, expediters, cooks and dishwashers. If you are a restaurant worker who has not been paid properly, please call our firm for a free consultation.
Continue ReadingFeb 23
ASTORIA BREWHOUSE LAWSUIT
Click Here to Read the Complaint
Continue ReadingFeb 23
UNCLE GEORGE’S GREEK TAVERN LAWSUIT
Fitapelli & Schaffer filed a collective action lawsuit against Uncle George’s Greek Tavern in Astoria, New York for failing to pay minimum wage, overtime and spread of hours to tipped employees and kitchen workers over the past three years. Unfortunately, these violations are commonplace at restaurants in New York City. Employees should be aware that they may be entitled to double damages for wage violations.
Continue ReadingFeb 16
UBS TECHNICAL SUPPORT CLASS ACTION SETTLEMENT
UBS, one of the world’s largest financial services companies has agreed to pay $1.4 million to resolve an unpaid overtime class action. The case was brought on behalf of computer technicians who alleged they were paid a salary, and were misclassified as exempt employees, thus entitling them to unpaid overtime. Generally, computer help desk or computer customer service employees are entitled to be paid overtime, while programmers and code-writers are not. Many help desk or customer service employees are required to spend many hours working from home, or on smartphones at all hours of the night, responding to emergencies. Employees should be aware that if they bring a case for unpaid wages, they are protected against retaliation by their employer. For more information regarding employees being entitled to overtime, please contact Fitapelli & Schaffer for a free consultation.
Continue ReadingFeb 8
DARDEN LAWSUIT
Last week, the Restaurant Opportunities Center (ROC) filed a lawsuit in Chicago Federal Court against Darden Restaurants, parent company of Capital Grille, alleging unpaid wage violations, such as: Minimum Wage, Overtime and Spread of Hours. The new lawsuit also requests to proceed as a class and collective action on behalf of all Capital Grille employees nation-wide. Our firm, Fitapelli & Schaffer, LLP, filed this case first, on November 17, 2011 and we already have over 25 Plaintiffs from 7 different states. Information about our case can be found at WWW.CAPITALGRILLELAWSUIT.COM.
Continue ReadingJan 29
NOVARTIS OVERTIME SETTLEMENT
Novartis, one of the world’s largest pharmaceutical companies, has agreed to pay a staggering $99 million to resolve a class action brought by sales representatives for unpaid overtime. This very issue, of whether pharmaceutical sales representatives are entitled to overtime is scheduled to be decided by the United States Supreme Court later this year. These cases revolve around the issue of the administrative and outside sales overtime exemptions. In the Novartis case, the company won summary judgment on the exemption issue at the District Court level. However, the Second Circuit reversed on appeal, finding the sales representatives not exempt and thus entitled to unpaid overtime. The Supreme Court will have to rule on the outside sales exemption, which will be interesting, since pharmaceutical salespeople do not sell any products. Sales people merely “pitch” the products to doctors, who in turn, prescribe the drugs to patients. We will update you following the Supreme Court’s ruling, which will affect overtime eligibility for all salespeople nationwide.
Continue ReadingJan 24
CITIGROUP LOSES FINRA ARBITARTION TO FINANCIAL ADVISORS, OWES $24 MILLION
In one of the largest FINRA arbitration awards ever, Citigroup was ordered to pay two financial advisers and their assistant $24 million in unpaid commissions. In 2002, brothers James Bryan Minchello and Robert Vincent Minchello were hired by Citigroup Smith Barney. The brothers had previously worked for Bank of America and brought a large book of business, including several venture capital firms and a large communications company to Citigroup. Pursuant to an employment agreement with Citigroup, the brothers were to receive certain commissions based on revenue generated. The FINRA arbitration panel ruled for the brothers and their assistant, awarding $15.8 million in compensatory damages, 6% interest for over 7 years and $1 million in sanctions. This case illustrates that financial advisers should be very diligent in obtaining a written employment agreement and keeping track of their hours worked and commissions earned and paid.
Continue ReadingJan 17
LADY GAGA OVERTIME LAWSUIT
On December 14, 2011, Jennifer O’Neill filed an unpaid overtime lawsuit against Lady Gaga, one of the most successful recording artists of all-time, for failing to pay her time and one half when she worked over 40 hours per week. The Plaintiff, Ms. O’Neill was employed as Lady Gaga’s personal assistant from 2009 until March 2011. Rather than being paid an hourly rate plus overtime, Plaintiff was paid a salary regardless of the number of hours actually worked. The complaint alleges entitlement to over $350,000 in unpaid overtime. In order to defeat the case, Lady Gaga will have to show Plaintiff was exempt and therefore not entitled to premium overtime pay. Exemptions are affirmative defenses and carry a high burden. Generally speaking, a personal assistant would not be exempt under the administrative exemption, this entitling them to overtime pay.
Continue ReadingJan 9
NLRB RULES CLASS ARBITRATION AGREEMENTS ARE ILLEGAL
In a monumental decision, the NLRB has ruled that forcing employees to sign class-action waivers is illegal. In this case, the employer, DR Horton, forced employees to sign arbitration agreements stating they could bring individual claims, not class action claims in arbitration. The employee wanted to file a collective action under the FLSA to recover unpaid overtime. The decision is significant because the Fair Labor Standards Act allows employees to bring a case on behalf of themselves and all others who are similarly situated to vindicate their rights for non-payment of minimum wages and overtime. This collective action provision allows employees to hire attorneys to pursue their case on a contingency fee, in order to assist the employee and all others who with to join the suit. Employers favor individual claims, rather than class actions, knowing that the time and expense would be too great for lawyers to take these cases. As a result of this decision, which will likely be appealed, employees can bring class actions, even if their arbitration agreement contained a class waiver.
Continue ReadingDec 22
BENJAMIN STEAKHOUSE LAWSUIT
Click Here to view the Complaint- Scanned Complaint_11 Civ. 9401 (PKC)
Continue ReadingDec 20
Accountants Entitled to Overtime Pay
Even though accountants are always classified as exempt and not paid overtime when they work over 40 hours per week, they are very likely to be entitled to overtime pay. Most accounting firms classify all accountants as exempt from receiving overtime, regardless of the job they actually perform. Non-licensed accountants are very likely entitled to overtime pay. This appears to be an industry-wide epidemic. As an example, a Federal Court in New York just ruled that certain accounting employees for Deloitte & Touche can receive Court authorized notice of an overtime lawsuit that covers the following job titles nationwide: Audit Assistants, Audit Senior Assistants, Audits in Charge and Audit Seniors. Non-Licensed accountants should call the firm for a free consultation regarding overtime pay.
Continue ReadingDec 9
Applebee’s Decision Regarding Minimum Wages for Tipped Employees
An Appeals Court has recently ruled against Applebee’s regarding the payment of minimum wage to tipped employees. In that case, tipped employees, such as servers, bartenders and bussers spent more than 20% of their day performing non-tipped related activities, such as setting tables, cleaning silverware, filling salt and pepper shakers, cutting fruits and vegetables and general cleaning. Since tipped employees spent more than 20% of their day performing non-tipped related duties, they were entitled to the full minimum wage of $7.25 per hour, rather than the tipped minimum wage, which is currently $5 per hour in New York. Tipped employees should keep track of how many hours per shift they are performing non-tipped work, as they may be entitled to the difference between the full minimum wage rate and the tipped minimum wage rate plus 100% as a penalty.
Continue ReadingNov 18
LAWSUIT AGAINST CAPITAL GRILLE
Fitapelli & Schaffer filed a nation-wide class and collective action against Capital Grille, a chain of over 40 upscale steak houses. We are seeking to represent all tipped employees, including servers, bartenders, bussers, runners and barbacks who currently or have worked for the company for the past six years. We allege the following violations:
Continue ReadingNov 9
FLUTE BAR CASE UPDATE
Continue ReadingNov 3
LAWSUIT AGAINST PUBLIC HOUSE, BUTTERFIELD 8, TAMMANY HALL & WICKER PARK
Fitapelli & Schaffer filed a class and collective action against Public House Investments, LLC for failing to pay proper wages to tipped employees including servers, bussers, runners and bartenders. The lawsuit is brought on behalf of all tipped employees who worked at the following bars over the past six years: Public House, Butterfield 8, Tammany Hall and Wicker Park. The allegations include failure to pay minimum wage ($7.25 per hour), overtime (time and one half over 40 hours per week), spread of hours (one extra hour of minimum wage if work over 10 hours per day) and misappropriated gratuities for special events. These are all common violations in the restaurant industry.
Continue ReadingOct 25
GRISTEDES OWNER FOUND LIABLE FOR UNPAID WAGES
In a recent decision by Judge Crotty in the Southern District of New York, John Catsimatidis was held to be jointly and severally liable for wage and hour violations committed by his company, Gristedes. Gristedes, one of the largest supermarkets in New York City was accused of failing to pay overtime to thousands of workers. The case was certified as a class action, and the workers were to receive well over $2 million. However, the Company argued that due to the economy, they were unable to pay the settlement. Therefore, Plaintiffs had no choice but to seek relief from the company’s owner.
Continue ReadingOct 13
FIDELIS OVERTIME LAWSUIT
Click here to View the Complaint
Continue ReadingOct 12
KPMG ORDERED TO PRESERVE EVIDENCE
A Judge in the Southern District of New York issued a significant opinion this week regarding the duties of a company to preserve evidence in a nationwide FLSA unpaid overtime case. Judge Cott denied KPMG’s motion for a protective order, requiring KPMG to maintain internal hard drives of thousands of Advisory Associates who worked for KPMG in the past 6 years. KPMG had argued that the expense and time required was too great. The Court disagreed, stating that KPMG must bear the cost as the hard drives are relevant to the amount of hours worked by Plaintiffs. Following this decision, companies must be very careful regarding failure to preserve evidence.
Continue ReadingSep 30
UNPAID INTERN LAWSUIT
A class action was recently filed against Fox Searchlight Pictures on behalf of unpaid interns who worked on the popular movie Black Swan. The lawsuit alleges that interns worked well over 40 hours per week, while receiving no compensation. Under the law, generally an unpaid internship is legal if the person is receiving academic credit and the company receives no financial benefit in return. However, if no academic credit is received, the intern would be entitled to minimum wage and overtime for over 40 hours worked pursuant to the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). Unfortunately, many companies, including movie studios take advantage of interns, by failing to pay any wages.
Continue ReadingSep 27
SMITH & WOLLENSKY DECISION- 2nd CIRCUIT
On September 26, 2011, the Second Circuit Court of Appeals issued a landmark decision in a unpaid wages lawsuit against restaurants owned by Smith & Wollensky, a well-known brand of steakhouses. The Court ruled that Plaintiffs are able to bring a simultaneous Collective Action under the Fair Labor Standards Act (FLSA) and class action pursuant to the New York Labor Law (NYLL) in the same case. The Court ruled that under Federal Law and New York law, the violations are similar and facts overlap. Also, just because someone does not affirmatively opt-in to the FLSA case, does not mean that same person cannot share in the opt-out portion of the case. The Court noted that many employees do not opt-in because they are afraid of retaliation. The facts of the case involved non-tip eligible employees, such as managers, silver polishers and coffee preparers being included in the tip-pool. These violations are common in restaurants in New York City.
Continue ReadingSep 26
Are Commisisoned Employees Entitled to Minimum Wage and Overtime?
Generally, the answer is yes. Common industries where commissioned employees are not paid properly include account executives and mortgage loan officers.
Continue ReadingSep 21
FEDERAL EXPRESS SETTLEMENT
Federal Express has just settled an unpaid wages case in California for $5.2 million. The lawsuit was certified as a class action, so that many employees will be receiving money. The lawsuit claimed that employees were forced to work through meal and rest breaks without being paid for that time. Many companies commit similar violations, such as automatically deducting an hour for lunch, even if the employee eats at his desk and works through lunch.
Continue ReadingSep 13
JP MORGAN LOAN OFFICER SETTLEMENT
JP Morgan announced a class action settlement covering 1,600 current and former mortgage loan officers in California. The settlement is for $9 million. These loan officer settlements come on the heels of a Department of Labor opinion letter, whereby the agency indicated most loan officers were entitled to minimum wage and overtime pay. Loan officers are entitled to overtime even if they are paid on a commission only basis.
Continue ReadingSep 9
EXOTIC DANCERS ENTITLED TO UNPAID WAGES
A Federal Judge in Georgia has ruled that dancers at upscale gentleman’s clubs are employees, rather than independent contractors. As employees, dancers are entitled to certain rights, such as minimum wage and overtime. Historically, strip clubs classified all dancers, DJ’s and hair/makeup personnel in order to avoid paying them wages, payroll taxes, unemployment and worker’s compensation. Hopefully, Judges in New York will follow this decision, as there are many pending cases in New York against clubs for the same violations.
Continue ReadingSep 7
Tyson Foods $32 Million Settlement
Tyson Foods Inc. on reached a $32 million settlement with chicken processing factory workers who sued the food giant over unpaid time spent donning and doffing work-related attire and safety gear. Donning and Doffing cases involve the time a worker spends changing in and out of a protective uniform before or after a shift. This settlement is one of the largest ever in this type of case.
Continue ReadingSep 1
MAJOR WORLD NOTICE
F&S mailed this court approved notice to all Major World salespeople who worked for the Company since December, 2006. If the notice is sent back to us, a person will join the case and be eligible to share in any settlement.
COURT APPROVED NOTICE
Aug 30
LOWE’S OVERTIME SETTLEMENT
Lowe’s has settled a California Class Action on behalf of Loss Prevention Managers for $3 million. Each class member will receive an average of over $9,000, which is very significant. This is another example of a Company not paying salaried employees overtime. Unfortunately, most salried employees are entitled to overtime, but they are unaware of their rights.
Continue ReadingAug 24
BOVIS OVERTIME SETTLEMENT
BOVIS, one of the largest construction companies in New York has agreed to settle a class and collective action alleging unpaid overtime. The class includes the following positions: Project Engineers, Assistant Project Managers and Engineers. The total proposed settlement is $2.53 million. This is similar to Fitapelli & Schaffer’s lawsuit against Hunter Roberts Construction on behalf of Assistant Project Managers and Administrative Assistants. It appears many construction companies mis-classify salaried employees, attempting to avoid paying them overtime.
Continue ReadingAug 22
POLICE SERGEANTS ENTITLED TO OVERTIME
The Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont recently issued a decision proclaiming that NYPD sergeants are entitled to overtime pay. This decision would likely extend to State Troopers and county police forces, such as Nassau, Suffolk and Westchester. One major issue in the case dealt with payment of comp time, rather than overtime. Also, the Court ruled that sergeants’ primary duty was not supervision, and thus, they were not subject to the executive exemption.
Continue ReadingAug 19
WALMART OVERTIME LAWSUIT
A collective action was filed against Walmart for failing to pay workers for time spent “off the clock.” According to the complaint, filed in Florida Federal Court, Lisa Gilliam and other similarly situated employees were forced to work before or after they punched in and out to work. This is a way companies are able to have workers put in over 40 hours per week, without paying them for all hours worked.
Continue ReadingAug 18
PRICE WATERHOUSE COOPERS OVERTIME LAWSUIT
Similar to Fitapelli & Schaffer’s class action lawsuit against KPMG, another of the Big-5 accounting firms, Price Waterhouse Coopers was sued for failing to pay overtime to associates in the New York office. Many large companies mislead salaried employees in order to avoid paying them overtime, in violation of state and federal law.
Continue ReadingAug 17
RBC Overtime Settlement
Royal Bank of Canada (RBC) has agreed to settle a minimum wage and overtime lawsuit brought by Securities Brokers. The settlement would create a fund of $5.05 million to be split among eligible employees. The case was filed in Minnesota Federal Court.
Continue ReadingAug 15
STARBUCKS SETTLEMENT
Starbucks settled a FLSA overtime pay collective action brought by managers for $1.6 million, just before the case went to trial. These managers were likely paid salary and alleged they were misclassified. Companies commonly mislead salaried employees into thinking they are not entitled to overtime because they are paid salary, rather than hourly.
Continue ReadingAug 12
NEW YORK METS OVERTIME LAWSUIT
The New York Mets were hit with a class action lawsuit alleging security guards at Citi Field are not being paid time and one half for over 40 hours per week. Hourly employees must be paid time and one half their hourly rate for all hours over 40 per week, with no exceptions. For example, if a security guard is paid $20 per hour, they must be paid $30 per hour for all overtime hours. Many security companies have been sued for similar violations in the past few years.
Continue ReadingAug 11
JP MORGAN CHASE SETTLEMENT
JP Morgan Chase recently settled a class action lawsuit encompassing thousands of loan underwriters for $42 million. The settlement covers Federal law- the Fair Labor Standards Act and many state laws. Chase alleged the underwriters were exempt from receiving overtime pay. However, an appeals Court and the Department of Labor issued opinions stating that mortgage loan officers and underwriters cannot be paid commission only and must be paid minimum wage and overtime. This is a very significant case, as the industry standard was to pay loan officers incorrectly.
Continue ReadingAug 11
Raymour and Flanigan Overtime Case
A class action has been filed against Raymour & Flanigan, a well-known furniture retailer. The lawsuit alleges that managers, who were paid a fixed salary, are misclassified as exempt. The issue in these cases turns on whether the managers were actually performing managerial duties, such as supervision, hiring and firing over 50% of the time. If the managers were doing non-exempt work, similar to hourly employees, they have a good chance to win the case.
Continue ReadingJul 25
SOFRITO/SAZON CASE UPDATE
F&S is pleased to announce that we will be sending notices to all tipped employees who worked at Sofrito and Sazon, giving them an opportunity to join the case. If someone joins the case, they will be eligible to share in any settlement.
Continue ReadingJul 21
Major World Case Update
F&S is pleased to announce that our motion for FLSA class certification was granted by the Court. As a result, we will be sending notices to all Major World car salespeople in the next few weeks, giving them the option to join the case. If someone joins the case, they will be eligible to share in any settlement.
Continue ReadingJul 6
Yankee Stadiium Workers Case Update- Huffington Post Article
https://www.huffingtonpost.com/2011/07/05/yankee-stadium-service-fee_n_890463.html
Continue ReadingJun 9
AMERICAN CHOICE LAWSUIT
F&S filed an unpaid overtime lawsuit against American Choice, an upscale deli located in the Lower East Side.
Continue ReadingJun 2
FLUTE LAWSUIT
Fitapelli & Schaffer filed a class action lawsuit against Flute Bar, two well-known champagne lounges in Manhattan for failing to pay proper wages to its staff. Among the claims are failure to pay minimum wages, overtime, spread of hours and improper taking of tips by managers.
Continue ReadingMay 9
YANKEE STADIUM EMPLOYEE LAWSUIT
Fitapelli & Schaffer filed a lawsuit against Legends Hospitality and Volume Services, companies that provide in-seat food and beverage services to field level ticket holders in Yankee Stadium. The lawsuit claims the defendants retained the 20% service charge that is added for in-seat service. We allege that customers in the field-level seats are misled into believing the 20% mandatory service charge is a gratuity that goes to the workers. In fact, the employees do not receive any of the 20%. Service charge violations are common in the catering and banquet industries.
Continue ReadingMay 3
KPMG LAWSUIT
Fitapelli & Schaffer filed a class action lawsuit against KPMG in Federal Court. We allege our client, who worked as an advisory associate, was entitled to overtime pay. We are seeking to have the case certified as a nationwide collective action and a New York class action. Current or former KPMG employees should contact us to join the case.
Continue ReadingMay 3
EL Conde Restaurant Lawsuit
Fitapelli & Schaffer filed a class action lawsuit against El Conde Steakhouse in New York City for failing to pay proper wages and overtime to tipped employees. We allege our clients were paid $30 per shift, regardless of the number of hours they worked. We are seeking to represent anyone who worked at the restaurant in the past six years.
Continue ReadingApr 26
WILD GINGER LAWSUIT
F&S filed a class action lawsuit against Wild Ginger, a well-known Thai restaurant in Great Neck, NY. We allege Wild Ginger failed to pay its hourly service workers minimum wage, overtime and illegally distributed a portion of their tips to non-tip eligible employees.
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