Wahlburgers, the burger franchise owned by celebrity brothers Mark and Donnie Wahlberg, is under fire from five former employees for alleged overtime and minimum wage violations. The allegations involve common violations in the restaurant industry, and a high-profile case like this will illuminate the issue for those in the dark about their employment rights.
The former employees allege that their rights under both the Federal Fair Labor Standards Act and New York Labor Law were infringed, according to the Hollywood Reporter.
As part of its expansion, Wahlburgers issued franchise licenses to groups that wanted to own their own Wahlburgers. As a result, the Coney Island Wahlburgers that is named in this lawsuit is not owned directly by the brothers, and they were not named in the lawsuit, although their company, Wahlburgers Franchising LLC is.
However, employees alleged in the complaint that two of the brothers, Donnie and Paul, were aware of the labor violations going on. According to the complaint, there has been ongoing wage theft and violations of federal and state labor laws. The Coney Island Wahlburgers is being accused of shaving down time from all its non-exempt employees, therefore paying them for significantly fewer hours than they actually worked. By doing this, the eligible employees were not receiving appropriate overtime pay as well. Additionally, Wahlburgers Coney Island forced tipped employees to share their tips with non-tipped kitchen staff, which the complainants are alleging was unlawful.
The labor and wage violations that occurred at Wahlburgers are quite common in the restaurant industry, and to better inform employees of what they need to watch out for, here is a list of basic rights restaurants workers are entitled to in the workplace.
Work Over 40 Hours a Week? You Could Be Owed Overtime
The employees who filed the class action against Wahlburgers all alleged that they were not paid overtime, even though they regularly worked more than 40 hours per week and they were not salaried employees. The FLSA guarantees that certain employees who work more than 40 hours in a week will get time-and-a-half pay for every hour over 40 that they worked.
There are employees exempt from overtime, but they must meet specific criteria outlined in the FLSA. Rarely will a restaurant worker qualify for an overtime exemption, so if you are a restaurant worker and your boss tells you that you are exempt from overtime, you should always confirm that this is actually true, or you could be losing out on money that is rightfully yours.
You Must Be Paid for All Hours You Work
It is far too common for employers to expect their employees to complete work tasks off-the-clock. Some of the Wahlburgers employees were required to attend an unpaid, three-day orientation before they began working at the restaurant, according to the complaint, which goes on to say that other employees were punched out of the time system for meals and breaks they did not take, resulting in no wages for the work they did. One plaintiff was even told not to punch in at all, the lawsuit says.
These practices are illegal, according to the FLSA and related state laws. If you are at work, you are owed at least the minimum wage for each hour worked.
You Get To Keep Your Tips
Except for valid tip pools, you are not required to share or hand over any tips that you receive. A valid tip pool includes two or more workers who typically receive more than $30 in tips each month. At Wahlburgers, the plaintiffs allege that the owners regularly kept tips that were for the employees and required tipped employees to share their tips with employees who are not entitled to tips, such as cooks, an illegal requirement.
By requiring the plaintiffs to do this, their hourly wage fell below the New York state hospitality workers’ minimum wage of $7.50 an hour because they were paid using what's called a tip credit. Paying using a tip credit is legal, but if the tips do not add up to the minimum wage, the employer must make up the difference.
In New York City, employers are required to provide reasonable accommodations to workers who need them due to disability or pregnancy, as well as for religious reasons and those who are victims of domestic violence. This is true even in bars and restaurants. Employers are required to provide a written determination of what accommodation was granted or denied. If they fail to provide the accommodation when it is required or fail to complete this written determination, employers may be found liable for unlawful discriminatory practices.
72-Hour Notice Required Before Any Shift
It is also a requirement in New York City that employers provide at least 72-hour notice to employees before any shift. This means an employee cannot be told on Friday that they are required to come to work on Saturday if it wasn’t already on the schedule. An employee can also not be required to be on-call, as this violates the 72-hour rule.
You Are Not Required to Pay for Broken Equipment
According to the FLSA, broken equipment, such as drinking glasses, is considered a business expense and should not be deducted from an employee's pay if one breaks — unless an employee did it on purpose or showed gross negligence when handling the equipment. If an employee does have wages deducted for broken equipment, the deductions cannot bring the hourly wages below the minimum wage. As mentioned above, your hourly wage must add up to the minimum wage, otherwise, your employer must make up the difference.
Want to Learn More About Your Rights?
If you are a restaurant worker and you believe your employer is violating labor laws in any of the ways mentioned above, your employer might be denying wages to which you are entitled.
The attorneys at Morgan & Morgan are always here to help. Having dealt with these types of cases for decades, you can be certain that you are in good hands when you work with Morgan & Morgan to recover the compensation you rightfully deserve. To get started, you can fill out the Morgan & Morgan free case evaluation form for more information about your options.