Feb 27, 2019 | Overtime & Wages
Restaurant and Fast Food Employees: Application of the Fair Labor Standards Act (“FLSA”) to Restaurant and Fast Food Employees
The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. After 40 hours of work in a workweek, pay at a rate not less than one and one-half times the regular rate of pay is required.
Restaurant and Fast Food Establishment Characteristics
The restaurant/fast food industry includes establishments that are primarily engaged in selling and serving to purchasers prepared food and beverages for consumption on or off the premises.
Restaurants/fast food businesses with annual gross sales from one or more establishments that total at least $500,000 are subject to the FLSA. Also, any person who works on or otherwise handles goods that are moving in interstate commerce is individually subject to the minimum wage and overtime protection of the FLSA. For example, a waitress or cashier who handles a credit card transaction would likely be subject to the FLSA.
Restaurant and Fast Food Establishment Wage and Labor Requirements
Minimum wage: Covered non-exempt workers are entitled to a federal minimum wage of not less than $7.25 per hour effective July 24, 2009. Wages are due on the regular payday for the pay period covered. Deductions made from wages for items such as cash shortages, required uniforms, or customer walk-outs are illegal if the deduction reduces the employee’s wages below the minimum wage or cuts into overtime pay. Deductions made for items other than board, lodging, or other recognized facilities normally cannot be made in an overtime workweek. Tips may be considered as part of wages, but the employer must pay not less than $2.13 an hour in direct wages and make sure that the amount of tips received is enough to meet the remainder of the minimum wage.
Food Credit: The employer may take credit for food which is provided at cost. This typically is an hourly deduction from an employee’s pay. However, the employer cannot take credit for discounts given employees on food (menu) prices.
TIPS: Tipped employees are those who customarily and regularly receive more than $30 a month in tips. Employees must be informed of the provisions of FLSA section 3(m) in advance if the employer elects to use the tip credit. Also, employees must retain all of their tips, except to the extent that they participate in a valid tip pooling or sharing arrangement.
Overtime: Overtime must be paid at a rate of at least one and one-half times the employee’s regular rate of pay for each hour worked in excess of 40 hours per week. In determining the regular rate for a tipped employee, all components of the employee’s wages must be considered (i.e., cash, board, lodging, facilities, and tip credit).
Some Typical Restaurant and Fast Food Establishment Wage and Labor Problems
If uniforms are required by the employer the cost of the uniform is considered to be a business expense of the employer. If the employer requires the employee to bear the cost, such cost may not reduce the employee’s wages below the minimum wage or cut into overtime compensation. When an employer claims an FLSA 3(m) tip credit, the tipped employee is considered to have been paid only the minimum wage for all non-overtime hours worked in a tipped occupation and the employer may not take deductions for walkouts, cash register shortages, breakage, cost of uniforms, etc., because any such deduction would reduce the tipped employee’s wages below the minimum wage.
Exemptions from Overtime: Section 13(a)(1) of the FLSA provides an exemption from FLSA monetary requirements for an employee employed in a bona fide executive, administrative or professional capacity or as an outside salesperson. An employee will qualify for exemption if all pertinent tests relating to duties, responsibilities and salary, as set forth in Regulations, 29 CFR Part 541, are met. The salary and duties tests for the exemptions are fully described in Regulations Part 541.
Source: U.S. Department of Labor. According to the Department of Labor, the aforementioned is for general information and is not to be considered in the same light as official statements of position contained in regulations.
Feb 12, 2019 | Consumer Protection, Employment & Technology Archive
Kehoe Law Firm, P.C. is making consumers aware that on February 7, 2019, a class action complaint was filed against New Day Financial, LLC, d/b/a Newday USA, and others, as of yet unknown, in United States District Court, Eastern District of California, ” . . . seeking damages and any other available legal or equitable remedies resulting from the [alleged] illegal actions of NEW DAY FINANCIAL, LLC D/B/A NEWDAY USA . . . in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff’s cellular telephone in violation of the Telephone Consumer Protection Act, 47. U.S.C. § 227 et seq. (“TCPA”) . . . .”
The complaint against New Day Financial, LLC, d/b/a Newday USA, “a mortgage company,” alleges that the Plaintiff was contacted Plaintiff on Plaintiff’s cellular telephone “in an effort to sell or solicit its services.” According to the complaint, “Plaintiff is not a customer of Defendant’s services and has never provided any personal information, including his cellular telephone numbers, to Defendant for any purpose whatsoever. In addition, Plaintiff told Defendant at least once to stop contacting them. Accordingly, Defendant never received Plaintiff’ “prior express consent” to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on their cellular telephone pursuant to 47 U.S.C. § 227(b)(1)(A).”
Do You Believe You Are a Victim of Illegal Robocalls, Text Messages, “Junk” Faxes or Telemarketing Sales Calls?
If you have received illegal robocalls, text messages, “junk” faxes or telemarketing sales calls, you may be able to recover at least $500 for each illegal call, text or fax you received and, possibly, as much as $1,500 for each illegal call, text message or facsimile that was made either willfully or knowingly in violation of the Telephone Consumer Protection Act.
To help evaluate your potential legal claims under the Telephone Consumer Protection Act, please complete KLF’s confidential Robocall Questionnaire or, if you prefer to speak with an attorney, please complete the form above on the right, e-mail [email protected] or contact Michael Yarnoff, Esq., [email protected], (215) 792-6676, Ext. 804, for a free, no-obligation evaluation of your potential legal rights.
Feb 12, 2019 | Consumer Protection, Employment & Technology Archive
Kehoe Law Firm, P.C. is making consumers aware that on February 11, 2019, a class action lawsuit was filed in United States District Court for the District of New Jersey against Century 21 Real Estate, LLC “. . . to stop Century 21 from directing its realtors to violate the Telephone Consumer Protection Act by making unsolicited, autodialed calls to consumers without their consent, including calls to consumers registered on the national Do Not Call list, and to obtain injunctive and monetary relief for all persons injured by Century 21’s conduct.”
According to the class action complaint, ” . . . Century 21’s direction of realtors’ marketing resulted in [the Plaintiff] receiving unsolicited, autodialed calls from 8 different realtors associated with 2 different franchised locations over an eight month period (from May 2018 through January 2019) culminating in [the class action] Complaint seeking injunctive relief and statutory damages on behalf of all similarly situated consumers, including those, like [the Plaintiff], whose telephone numbers were registered on the national Do Not Call list at the time they received Century 21’s realtors’ calls.”
The class action complaint states that “[the Plaintiff] had a property listed for sale with a realtor which he withdrew from the market on May 15, 2018. That listing never included Plaintiff’s cellular phone number. Months later, on October 29, 2018, [Plaintiff’s] listing agreement with his realtor expired. After both of these events – the May 2018 delisting of [Plaintiff’s] property from the multiple listing services and the October 2018 expiration of his listing agreement – triggered a series of unsolicited, autodialed calls from Century 21 realtors soliciting [Plaintiff] to relist his property with them.”
Further, the Plaintiff, according to the complaint, ” . . . does not have a relationship with Century 21, and has never consented to calls from Century 21’s realtors. Simply put, Century 21 did not obtain Plaintiff’s prior express written consent to place any solicitation telephone calls to him using an autodialer or otherwise. In fact, Plaintiff’s cellular phone number was never even associated with any public listing for his property, all of which listed his realtor’s telephone number as a point of contact.”
Do You Believe You Are a Victim of Illegal Robocalls, Text Messages, “Junk” Faxes or Telemarketing Sales Calls?
If you have received illegal robocalls, text messages, “junk” faxes or telemarketing sales calls, you may be able to recover at least $500 for each illegal call, text or fax you received and, possibly, as much as $1,500 for each illegal call, text message or facsimile that was made either willfully or knowingly in violation of the Telephone Consumer Protection Act.
To help evaluate your potential legal claims under the Telephone Consumer Protection Act, please complete KLF’s confidential Robocall Questionnaire or, if you prefer to speak with an attorney, please complete the form above on the right, e-mail [email protected] or contact Michael Yarnoff, Esq., [email protected], (215) 792-6676, Ext. 804, for a free, no-obligation evaluation of your potential legal rights.
Feb 12, 2019 | Securities Class Action Archive
Kehoe Law Firm, P.C. is Investigating Potential Claims on Behalf of Investors of Molson Coors Brewing Company
Investors of Molson Coors Brewing Company (“Molson Coors” or “the Company”) (NYSE: TAP) are advised to contact John Kehoe, Esq., (215) 792-6676, Ext. 801, [email protected], [email protected]. The investigation concerns whether Molson Coors and certain of its officers and/or directors may have breached their fiduciary duties, issued materially misleading statements to investors or engaged in other unlawful business practices.
On February 12, 2019, Molson Coors announced that it would restate its financial statements for fiscal years 2016 and 2017 after the audit committee found errors in Molson Coors’ financial reporting. Following this disclosure, Molson Coors’ stock price fell more than 7% in pre-market trading and continued to fall sharply during intraday trading on February 12, 2019.
According to Molson Coors’ Form 8-K:
As part of preparing its 2018 financial statements, [Molson Coors] identified errors in the accounting for income taxes related to the deferred tax liabilities for its partnership in MillerCoors, LLC (“MillerCoors”). Upon the closing of the acquisition of the remaining interest in MillerCoors (the “Acquisition”) in the fourth quarter of 2016 and completion of the related deferred income tax calculations, the Company did not reconcile the outside basis deferred income tax liability for the investment in the partnership to the book-tax differences in the underlying assets and liabilities within the partnership. As a result of completing this reconciliation as part of preparing its 2018 consolidated financial statements, the Company identified a difference related to historical financial statements and concluded that the previously issued 2017 and 2016 consolidated financial statements were misstated.Accordingly, the Company is restating its consolidated financial statements as of and for the year ended December 31, 2016 to increase its deferred tax liabilities and deferred tax expense by $399.1 million, with a corresponding decrease in net income and earnings per share. The Company’s consolidated financial statements as of and for the year ended December 31, 2017 are also being restated to reflect the revaluation of such deferred liabilities due to the U.S. Tax Cuts and Job Act of 2017 and to correct further insignificant income tax errors resulting in a decrease to deferred tax liabilities and deferred tax expense of $151.4 million, resulting in corresponding increases to the Company’s net income and earnings per share. These adjustments resulted in an aggregate $247.7 million increase to the Company’s deferred tax liabilities and corresponding decrease in retained earnings and total equity as of December 31, 2017. (Emphasis added)
Further, Molson Coors stated:
In connection with the restatement, management of the Company has determined that a material weakness existed in the Company’s internal control over financial reporting as of December 31, 2018 relating to the design and maintenance of effective controls over the completeness and accuracy of the accounting for and disclosure of the income tax effects of acquired partnership interests. Specifically, [Molson Coors] did not design appropriate controls to identify and reconcile deferred income taxes associated with the accounting for acquired partnership interests. As a result, the Company’s Chief Executive Officer and Chief Financial Officer have concluded that the Company’s disclosure controls and procedures were not effective as of December 31, 2018, and the Company’s management has concluded that its internal control over financial reporting was not effective as of December 31, 2018. (Emphasis added)
If you are a Molson Coors investor and would like more information about the investigation or have questions about your legal rights, you are encouraged to contact John Kehoe, Esq., (215) 792-6676, Ext. 801, [email protected].
Kehoe Law Firm, P.C., with offices in New York and Philadelphia, is a multidisciplinary, plaintiff–side law firm dedicated to protecting investors from securities fraud, breaches of fiduciary duties, and corporate misconduct. Combined, the partners at Kehoe Law Firm have served as Lead Counsel or Co-Lead Counsel in cases that have recovered more than $10 billion on behalf of institutional and individual investors.
Feb 1, 2019 | Consumer Protection, Employment & Technology Archive
On February 1, 2019, the Federal Trade Commission announced that it is mailing 227,995 checks totaling more than $6 million to consumers who purchased health products from three individuals and the 19 companies they controlled—collectively known as Tarr, Inc. Affected consumers will soon receive their refund checks, which average $26.57.
According to the FTC’s complaint, filed in November 2017, Tarr, Inc. used a vast network of online marketers to sell more than 40 different products mostly advertised as promoting weight loss, muscle building, or wrinkle-reduction. The FTC alleged that the defendants used unsupported claims, fake magazine and news sites, bogus celebrity endorsements, and phony consumer testimonials to market their products.
The FTC also alleged that the defendants used deceptive offers of “free” and “risk-free” trials, and automatically enrolled people without their consent in programs that charged them for additional products each month.
The settlement prohibits the defendants from using the deceptive marketing tactics alleged in the FTC’s complaint and imposed a suspended monetary judgment that required them to pay $6.4 million to the FTC to provide refunds.
Recipients, according to the FTC, should deposit or cash checks within 60 days, as indicated on the check. The FTC never requires consumers to pay money or provide account information to cash a refund check.
Consumers with questions about these refunds should contact the FTC’s refund administrator, Epiq, at 877-861-1501. More information about the FTC’s refund program is available at ftc.gov/refunds.
Source: FTC.gov
