The Blog Of Kennedy Hodges Your Texas Labor Law Attorneys

Florida restaurant workers protest minimum wage reduction bill for tipped employees

Tue, 21 Feb 2012 08:00:00 EST

Florida tipped employees are protesting against a proposed bill that would lower the minimum wage for tipped employees, including servers and waiters. The bill would cut the current Florida tipped minimum wage of $4.65 an hour to the federal rate of $2.13 an hour.

The bill makes the new minimum wage optional, but it would allow employers to pay tipped workers a lower minimum wage than the current authorized rate, if companies agree to guarantee that employee’s wages and tips will amount to at least $9.98 an hour.

Tipped workers hold protests outside Florida restaurants
The state’s restaurant workers are holding protests outside of Florida restaurants, arguing that the cut is unconstitutional.

An overall $2.52 reduction in the base wage will be a huge cut for tipped workers who are already struggling to make ends meet with the current base rate as it is.

Restaurant lobbyists say employers would pay less taxes under new bill
Proponents of the bill state it would help restaurants struggling to stay in business because of increased food costs, unemployment tax hikes, and minimum wage laws by enabling them to pay workers a lower wage.

Most workers and labor unions have agreed that this bill only benefits employers, and employees have begun protests at popular Florida restaurants today.

The bill passed the senate commerce and tourism committee last week and if the state senate passes the bill it could go into effect this summer.

If you are a Florida tipped employee, learn the wage and hour laws that affect your paycheck. Order our free book to learn what your employer doesn’t want you to know, The 10 Biggest Mistakes That Can Hurt Your Wage and Overtime Claim.

How can an attorney help me as an underpaid exotic dancer in Houston?

Mon, 20 Feb 2012 08:00:00 EST

The Texas fair overtime lawyers in our office see it time and time again. Texas exotic dancers owed overtime who never speak up, in fear that if they do, they will lose their job and quite often their only form of income.

Many figure that the money is good, that it’s typically paid in cash and there are not too many other job opportunities to fall back on.

But when a dancer is not paid the overtime that he or she is entitled to, it can be surprising just how quickly the amount adds up. And contrary to what many people believe, if you reach a settlement, you will not have to fork over the full amount to the attorney who worked on your case.

If you are a dancer owed overtime, and are considering enlisting the help of an attorney to help you obtain the back wages you are entitled to, make sure that he or she is willing to do the following:

Provide you with a complimentary and confidential case evaluation which includes a list of available options.

Establish up front what the terms of the attorney/client relationship, including a clear explanation of all fees and expenses.

Perform on your behalf an in-depth investigation of your work environment, including but not limited to witness statements, if applicable.

Analyze your current pay structure and clearly explain to you how and why it is in violation of the Fair Labor Standards Act.

Protect you from losing your job just because you raised concern about the Fair Labor Standards Act (FLSA) violation(s), or if you have already been terminated, help you file the necessary paperwork to prove wrongful termination.

Consult with you before accepting any offer of settlement.

If you would like more information on the FLSA rights of exotic dancers in Houston, contact the lawyers at Kennedy Hodges immediately at 888.449.2068 to receive your free copy of, Ten Biggest Mistakes That Can Hurt Your Wage and Overtime Claim and schedule your complimentary case evaluation.

Former reporter sues Chicago Tribune for alleged overtime violations

Mon, 20 Feb 2012 08:00:00 EST

News outlets have a demanding job keeping up with breaking stories, but some of them have failed to keep up with the overtime laws in the United States. If you’re a reporter, find out what conditions make you a non-exempt employee eligible for overtime under the Fair Labor Standards Act (FLSA).

Case in Point
Chicago Tribune: Breaking news and also allegedly breaking wage laws
A former reporter for the Chicago Tribune filed a wage and hour lawsuit against the newspaper, alleging that she and other reporters were not paid overtime for working over 40 hours in a workweek. The lawsuit seeks class-action status on behalf of other unnamed “TribLocal” reporters who claim they were not paid for all their overtime hours.

The lawsuit alleges that the Tribune was “willful” in violating Illinois Minimum Wage Law and the FLSA. The lawsuit seeks to recover unpaid overtime, damages and attorneys’ fees.

Are Journalists covered under the FLSA?
The creative professional exemption is the most common exemption under which journalists and reporters are classified. However, the Fair Labor Standards Act regulations state that employees or reporters who are only rewriting stories or performing routine editorial work will generally fail to qualify as exempt professionals.

The Creative Professional Exemption
In order to qualify as an exempt creative professional, your primary duty has to require invention, imagination, originality or talent. Only writing that is analytical, interpretive, or highly individualized is considered to be creative in nature

Determining whether an employee is exempt as a creative professional must be made on a case-by-case basis.

If you have questions about your exemption status, call Kennedy Hodges toll-free at 1-888-449-2068 to have one of our employment lawyers review your case for free. You can also order our free book, The 10 Biggest Mistakes That Can Hurt Your Wage and Overtime Claim.

Applebee's accused of restaurant wage theft, appeal denied

Sat, 18 Feb 2012 08:00:00 EST

More than 5,500 Applebee’s servers and bartenders got their day in court after the U.S. Supreme Court rejected the restaurant’s challenge of a lawsuit brought against them.

Much like the clients who are regularly helped by our Texas overtime attorneys, the Applebee’s workers were required to perform non-tip-producing work, but were not paid a fair hourly wage. For example, the servers and bartenders had to do things such as clean and roll silverware, but were only most likely paid $2.13 per hour instead of the full the $7.25.

Despite Applebee’s claims that the non-tip-producing work was part of their typical job duties, lower courts in Missouri disputed their claim, and decided that the servers and bartenders were victims of restaurant wage theft. Applebee’s appealed the decision, and the case moved up to the Supreme Court, where Applebee’s was overruled once more.

The Fair Labor Standards Act requires that the full wage be paid and no tip credit be taken if 20% or more of the work that tipped employees do is non-tip-producing. The FLSA also prevents tipped employees from having to share their tips with non-tipped employees like bus boys, cooks or managers. If the server’s wages plus tips does not equal or exceed the federal minimum wage, it is the responsibility of the employer to pay the serve the difference in wages.

Restaurant wage theft occurs in Houston and across the nation daily, and many servers and bartenders fail to realize the vast amounts of money that they are missing out on from every paycheck. Learn your rights as a tipped employee by calling Kennedy Hodges toll-free at 888.449.2068, or fill out our online form, to schedule your complimentary case evaluation.

Houston employees may violate FLSA by working through lunch

Thu, 16 Feb 2012 08:00:00 EST

The Texas overtime lawyers in our office were interested to read a recent article in the Chicago Tribune that reported on a problem that many of our clients face.

According to Reuters, the national fashion magazine Harper’s Bazaar, may be in hot water after one of the publication’s former interns sued, claiming that she was not paid an hourly wage, despite working long hours at the magazine.

Xuedan Wang, 28, sued Harper’s Bazaar’s publisher, Hearst Corporation, in New York’s federal court, claiming that the company violated the Fair Labor Standards Act.

It is not against the law to hire unpaid interns. It is, however, against the law to not pay an intern if they are doing the same work as an employee, and there is a lack of educational instruction in the internship.

In Wang’s case, she claims that she worked more than 40 hours each week and sometimes as many as 55 hours. She is suing for back wages and overtime pay for the time she spent at the magazine, August through December 2011. Wang’s lawyers are in the process of trying to form a class action suit involving all of the unpaid interns, since this problem is prevalent in the fashion magazine industry.

Harper’s Bazaar does not offer a wage to their interns, only the opportunity to earn college credit.

If you are an intern who is doing the same work as other employees, and yet not “learning” anything from the job, chances are that your employer is failing to follow the FLSA guidelines. Speak with a Houston attorney who is experienced in helping unpaid interns by calling Kennedy Hodges at 888.449.2068, or fill out our online form.

Audit associates: How your hard drive can prove your overtime hours in court

Thu, 16 Feb 2012 08:00:00 EST

In a recent wage and hour case filed in New York, an accounting firm is paying the price for allegedly denying employees overtime pay. What’s interesting about this case is that the judge ordered that all the hard drives of potential employees involved are to be preserved for sampling.

Most employees spend the workday using computers, and in this case the hard drives will be a critical factor to do random sampling of how long audit associates worked and what they did. This will be used to determine whether members of the proposed collective-action lawsuit were all subject to similar wage and hour practices.

Case in Point
Court orders accounting giant KPMG to preserve 2,500 hard drives in FLSA case
Audit associates at KPMG LLP filed a Fair Labor Standards Act lawsuit alleging that the company misclassified audit associates as exempt and did not pay them overtime for hours worked over 40 in a week. The judge ordered KPMG to preserve all existing hard drives until further notice, or unless a settlement agreement is reached. KPMG appealed against the order, but a federal district court held that KPMG had a duty to preserve every audit associate’s hard drive.

Preserving hard drives could cost KPMG millions
The company estimates that the court's ruling that KPMG preserve all 2,500 hard drives will cost $1.5 million.

Accountants and auditors: Learn how to reclaim your back wages.
Accountants and auditors are known to work demanding schedules, usually well over 40 hours a week. Your actual job duties dictate whether you are eligible to overtime pay. Even if your company classifies you as exempt from overtime, your job duties must include discretion and independent judgment to fall under most exemptions. If you are only performing routine, clerical work you could actually be a non-exempt employee under the Fair Labor Standards Act and eligible to overtime pay if you work more than 40 hours a week.

Call our employment lawyers at 1-888-449-2068 or send us a contact form to start a free case review. Our office operates on a contingency fee basis, which means if we do not make a recovery for you, you owe us nothing. You can also order our free book to learn more, The 10 Biggest Mistakes That Can Hurt Your Wage and Overtime Claim.

Wage lawsuit against Iron Cactus: New FAQ videos to answer your questions

Tue, 14 Feb 2012 08:00:00 EST

Our firm recently filed a wage and hour lawsuit on behalf of our clients against Iron Cactus restaurants in Texas. The complaint alleges that Iron Cactus unlawfully required servers to contribute to a tip pool (tip share) that, in part, was distributed to food expeditors ("expos") in violation of the Fair Labor Standards Act.

Attorney Galvin Kennedy of Kennedy Hodges LLP represents the group of employees that has filed a wage lawsuit against five Iron Cactus restaurant locations and he has answered some of the most frequently asked questions on this case.

Read more: Current and former wait staff file wage lawsuit against Texas Iron Cactus locations.

If you want to join this case or if you have questions, call our office toll-free at 1-888-449-2068 or send us a contact form.

FLSA: Houston strippers not required to share tips

Mon, 13 Feb 2012 08:00:00 EST

Working as an exotic dancer in Houston means that you are probably handling a lot of cash over the course of the night.

Most of this cash is in the form of tips that you receive for dancing on stage or by giving private performances to the patrons of the club where you are employed.

While it was recently established that strippers and wage laws must coincide with the Fair Labor Standard Act, many times exotic dancers are unaware that, by law, they are not required to split their tips with hourly-paid workers at the establishment.

That’s not all. The Houston fair wage lawyers in our office have seen club owners try and take advantage of their exotic dancers in a wide range of ways, including:

Requiring their dancers to pay a “Club Fee” in order to be allowed to dance at the club. We have seen fees range anywhere from $25 to upwards of $100.

Requiring the dancers to give a portion of their tips to the DJ at the end of the night, for playing the music needed for them to dance on stage.

Refusing to pay the dancers an hourly wage, claiming that they are making more than minimum wage from the tips that they receive.

Requiring the dancers to “tip out” the bartenders who provide drinks to the patrons.

All of these “requirements” the club owners push on the dancers are not only against the FLSA, but they also entitle the exotic dancer to back wages.

If you feel that you have been treated unfairly and are entitled to back wages as a Houston exotic dancer, contact the Texas fair overtime lawyers at Kennedy Hodges at 888.449.2068 for a confidential and complimentary case evaluation and a free copy of their book, the Ten Biggest Mistakes That Can Ruin Your Wage and Overtime Claim.

Employers may be violating the FLSA by making employees work through lunch

Fri, 10 Feb 2012 08:00:00 EST

CBS Money Watch had a recent article about working over lunch that outlined Fair Labor Standards Act Violations.

The piece explained that all hourly employees are to be paid for all time worked, even if that time is during your lunch hour. CBS reported that a woman working for a real estate company was recently fired for working over her lunch break, even though she voluntarily clocked out. Employers are becoming more and more conscientious about following the FLSA, in order to avoid paying the fines mandated by the U.S. Department of Labor, and back wages to their employees.

The Texas overtime lawyers at Kennedy Hodges were interested to read that the article brought up the age-old question of, “When is work ‘work’?” It is difficult sometimes to determine whether or not you should be paid for answering a 30-second email or for having a 15-minute conversation with your boss in the parking lot about tomorrow’s presentation.

A good rule of thumb? If you are working or doing anything work related, you should be paid. If you ever have questions, it is best to enlist the help of an attorney who handles these issues daily, like the lawyers at Kennedy Hodges.

Call them today at 888.449.2068 or fill out the online form to the right to have your questions answered.

Three restaurant tip credit mistakes that eat away at your paycheck.

Thu, 09 Feb 2012 08:00:00 EST

Employees are often involved in restaurant tip pools, but often have questions as to whether they are legal or not. many restaurants violate the Fair Labor Standards Act regulations for tip credits and tip pools, but most wait staff have no idea how these violations eat away at their paychecks every month.

If you are a tipped employee, read the FLSA regulations that affect wait staff, because if you don’t every paycheck you earn could be eaten away in illegal tip pooling arrangements.

What is a tip credit?

Tipped employees who make over $30 a month in tips can be paid with a tip credit, which means your tips can be counted as wages to meet the minimum wage of $7.25 per hour. There are certain conditions that must be met in order for employers to be able to apply this credit.

Federal law requires employers who use a tip credit to meet the following requirements:

Inform each tipped employee about the tip credit allowance (including amount credited) before the credit is utilized;
Be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined;
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 any of the above are not met, including if an employer does not inform you of their intention to use a tip credit, the tip credit is invalid and you may have a claim for back wages, even if your hourly rate comes out to $7.25. Our firm has filed on behalf of tipped employees in FLSA cases including invalid tip pool arrangements.

Read about the recent case our firm just filed over alleged minimum wage and tip pool violations against Iron Cactus restaurants in Austin, Dallas and San Antonio. Current and former wait staff may be eligible to join the lawsuit.

How to stop tipped employee wage theft in Texas.
If you believe you have been a victim of unlawful tip pooling, contact our employment lawyers at 1-888-449-2068 to start a free, no obligation case review today. You can also order our free book, The 10 Biggest Mistakes That Can Hurt Your Wage and Overtime Claim.

Iron Cactus restaurants sued by former wait staff

Tue, 07 Feb 2012 08:00:00 EST

The lawsuit our firm just filed against Iron Cactus has received some media attention this week. Since the start of this case our firm has been contacted by several former and current Iron Cactus employees and several of them have already joined the lawsuit by sending us consent forms.

Several news outlets have covered the story, including the Austin American-Statesman. Here are some of the links.

Media Attention to Lawsuit

Workers sue Iron Cactus, claiming federal labor law violations
Austin American-Statesman

Iron Cactus sued by workers over labor laws
Austin Business Journal

Iron Cactus sued over wage, hour issues
KXAN Austin

Watch FAQ Video: Attorney Galvin Kennedy answers your frequently asked questions about the Iron Cactus Lawsuit.

Employees seek court approval for a collective action
The employees filing the lawsuit are seeking court approval for the case to be certified as a collective action under the Fair Labor Standards Act. This would allow all other employees to join the lawsuit if they desired.

See the Press Release.

Iron Cactus Complaint
The lawsuit alleges that Iron Cactus violated the FLSA by:

forcing wait staff to participate in a tip pool and requiring a percentage of such tips be shared with food expeditors and other employees who are not eligible to receive tips,
requiring wait staff to pay for broken dishes and glasses,
not correctly informing the wait staff of the tip pool it was using, and
not paying the wait staff the required time and one-half premium pay when they worked more than 40 hours in a work week.

If you want to read more about the lawsuit, click here: Current and former wait staff file wage lawsuit against Texas Iron Cactus locations.

Click here to see a list of Iron Cactus lawsuit FAQs.

If you want more information about this lawsuit, contact our office at 1-888-449-2068 or send us a contact form. If you are a current or former Iron Cactus employee and you may be eligible to recover back wages. Contact our office if you have questions, or send us a consent form to join this case.

Misclassified as independent contractor in Houston? Follow these steps.

Mon, 06 Feb 2012 08:00:00 EST

Sometimes it is the fear of losing a job that keeps many workers from speaking up if they suspect they are being treated unfairly on the job.

The same holds true for many massage therapists, especially during a time in the tough economy when it is common for people to forgo the “luxury” of a massage in order to save money, which causes therapists to be extra thankful for their jobs.

Under the U.S. Department of Labor, it is a violation of the Fair Labor Standards Act, and therefore illegal, to fire someone or discriminate against them for filing a complaint under the Fair Labor Standards Act. That is why the Houston overtime attorneys at Kennedy Hodges urge independent massage therapists – and anyone else working as an independent contractor – not to settle for wrong paychecks and unfair treatment in the workplace.

One of the best ways to do this is to follow these steps:

Learn your rights in Texas under the FLSA. Visit the Department of Labor Website and browse around this site for more information.

Keep track of the hours you work each week. Even though it is the employer’s responsibility to keep track of their employees’ hours (but not those of independent contractors), it is still a good idea to keep record on your own.

Make note of conversations regarding employment and employer requirements. If the salon owner tells you that you must be in at a certain time, document it and any other remarks he or she makes.

Create a list of your job duties and compare them to the original contract you set up with the salon. If they do not match, you may be able to recognize a problem.

Contact a Texas lawyer experienced in handling FLSA cases. Our overtime attorneys are practiced at helping Houston workers misclassified as independent contractors and provide case evaluations at no charge.

Call Kennedy Hodges at 888.449.2068 today and you will also receive a free copy of their book, Ten Biggest Mistakes That Can Hurt Your Wage and Overtime Claim.

Wait staff file FLSA lawsuit against Iron Cactus Texas locations

Mon, 06 Feb 2012 08:00:00 EST

Kennedy Hodges LLP has filed a wage lawsuit on behalf of current and former wait staff of Iron Cactus Mexican restaurants. The lawsuit alleges that Iron Cactus unlawfully required servers to contribute to a tip pool that, in part, was distributed to food expeditors ("expos") in violation of the Fair Labor Standards Act.

The lawsuit further alleges that Iron Cactus should be required to pay double the amount that is owed as a penalty and should also be required to pay for the employee's attorney's fees and court costs.

Workers show huge response to join lawsuit

We have received numerous phone calls and e-mails from workers who have confirmed the tip pool violations first reported a few weeks ago. Several clients have hired us to pursue their back wages claim against Iron Cactus. The lawsuit was filed as a "collective action," which means that only wait staff who sign a consent form and join the lawsuit will be part of the lawsuit.

Watch FAQ video: Attorney Galvin Kennedy answers your frequently asked questions about the Iron Cactus Lawsuit.

The lawsuit alleges that Iron Cactus violated the FLSA by:

forcing wait staff to participate in a tip pool and requiring a percentage of such tips be shared with food expeditors and other employees who are not eligible to receive tips,
requiring wait staff to pay for broken dishes and glasses,
not correctly informing the wait staff of the tip pool it was using, and
not paying the wait staff the required time and one-half premium pay when they worked more than 40 hours in a work week.

Iron Cactus operates several locations in Texas, including in Austin, Dallas, Hill Country Galleria and San Antonio.

How to Join this Lawsuit

If you would like to join the lawsuit, you may fill out the Consent form below.

Iron Cactus Consent Form
View the Complaint
Click here to see a list of frequently asked questions.

To Learn More about the Iron Cactus Lawsuit

You may learn more about the lawsuit by contacting our firm toll-free at 1-888-449-2068 or by filling out a contact form.

Read the full story: Wait staff file wage complaint against Iron Cactus Texas locations

Discover the Biggest Myth About Houston Appliance Repairman and Paid Travel Time

Fri, 03 Feb 2012 08:00:00 EST

The nature of virtually every type of repairman’s job is that he or she is on the road most of the day, traveling from household to household. That’s a lot of time on the road.

This also means that a repairman might spend as much as half of his day – if not more – in the truck; which can be tolerated, as long as the repairman is being paid for that time behind the wheel.

The Houston fair wage attorneys in our office see it time and time again – honest, hardworking employees falling for one of the biggest myths that employers try to make their employees believe is real. You are not entitled to receive compensation during your travel time.

What ends up happening is the Houston service technician is not paid for travel time, which causes him to miss out on a number of hours of pay each week. So not only is his paycheck suffering, so is his overtime pay, since the missed hours could have bumped him over 40 per week, at which point he should have been receiving time and a half.

Let’s look at how much a paycheck could be affected by just 5 hours a week of unpaid travel time for a repairman who typically works 45 hours per week at $15 per hour.

Currently his paycheck looks like this:
45 hours of work – 5 hours of unpaid travel time = 40 hours of work
40 hours x $15 = $600

This is what his paycheck should look like:
40 hours of straight time = $600
Overtime pay = 1.5 x $15 = $22.50 per hour
5 hours of overtime x $22.50 = $112.50
$600 + $115 = $712.50

The repairman is missing out on $112.50 per week. That may not seem like a large amount until you realize that over the course of a year it adds up to $5,850!

If you are a Houston service technician facing the same problem, contact the Houston overtime attorneys at Kennedy Hodges for a complimentary case evaluation by calling 888.449.2068 or by filling out our online form today.

Texas mortgage banking officer sues Compass Bank for overtime

Fri, 03 Feb 2012 08:00:00 EST

Nearly 9 out of 10 loan officers work for commercial banks or credit unions, and they usually work especially long hours. But many of them are not paid for their overtime. Under the Fair Labor Standards Act, classifying these workers as exempt from overtime can be a big mistake.

Case in Point

Texas mortgage banking officer sues Compass Bank for overtime pay

A mortgage banking officer filed a wage and hour complaint against a Texas Compass Bank this week in federal court.

The employee alleges that Compass Bank misclassified mortgage-banking officers as exempt from overtime pay and didn’t compensate them for working more than 40 hours a week. The case seeks class action status.

Loan Officers and the FLSA

Loan officers are typically not covered by the administrative exemption to the Fair Labor Standards Act, and therefore eligible to receive overtime pay if they work more than 40 hours a week.

In several rulings, the Department of Labor has found that a typical loan officer’s primary duty is selling loan products. In these cases, the administrative exemption does not apply since the loan officers do not participate in the employer’s “management or general business operations.”

Article: Are you a bona-fide loan officer? The wage laws may tell a different story.

Intern Slavery reported at Hearst newspapers

Thu, 02 Feb 2012 08:00:00 EST

Unpaid internships are supposed to be a learning experience for anyone trying to break into a certain industry. But many employers see internships as a way to take advantage of free labor. But the Fair Labor Standards Act has certain rules that govern unpaid internships, and many employers break those rules.

Case in Point

A former intern of Harper's Bazaar in Brooklyn, New York, claimed that she regularly worked more than 40 hours a week, sometimes as many as 55 hours per week, without compensation in 2011.

The lawsuit, filed in New York, seeks class-action status because of allegations that claim that Hearst did not pay interns any compensation for the work they performed, including minimum or overtime wages, under the federal Fair Labor Standards Act.

Internships under the FLSA

In order for a private sector internship to be unpaid an employment relationship cannot exist under the FLSA. There are six criteria that employers have to meet including:

The internship, must be similar to training which would be given in an educational environment;
The must be for the benefit of the intern;
The intern must not displace regular employees, but works under close supervision of existing staff;
The employer derives no immediate advantage from the intern and on occasion its operations may actually be impeded;
The intern is not necessarily entitled to a job at the conclusion of the internship; and
Both the employer and the intern understand that the intern is not paid for the time spent in the internship.

If you have wage and overtime questions, order our free book, The 10 Biggest Mistakes That Can Hurt Your Wage and Overtime Claim, to learn your rights. Our employment attorneys have helped workers in all industries to recover their back pay. Contact our office at 1-888-449-2068 today to start your free case review.

Iron Cactus wait staff show overwhelming interest in wage lawsuit

Wed, 01 Feb 2012 08:00:00 EST

Click here to read Iron Cactus FAQs.

Watch FAQ video: Attorney Galvin Kennedy answers your frequently asked questions about the Iron Cactus Lawsuit.

February 6, 2012
UPDATE: Our firm has filed the Complaint in this case on behalf of our current clients. Click here to see Iron Cactus case status. All former and current Iron Cactus employees may fill out and return to our office an Iron Cactus consent form to join this case.

Since we posted our original blawg regarding our investigation into the alleged wage violations at Iron Cactus, we have received hundreds of visitors to that particular page. We received over 125 visitors on January 31, 2012 alone. We have also received numerous phone calls and e-mails from workers who have confirmed the tip pool violations first reported a couple of weeks ago.

The number of wait staff who have hired us to pursue their claims as a collective action has grown daily this week. They have hired us to pursue their claims for back wages during the last three years, double damages and attorney’s fees.

Lawsuit will be filed this week

We will file the lawsuit no later than the end of this week on behalf of all those who have hired us already. Please return to this site to read a copy of the Complaint. There is strength in numbers. If you would like to be part of the claim for back wages, please contact us or fill out the consent to join form here:

Consent to Join form

You can email the form, your questions or comments to: rprieto@kennedyhodges.com

Iron Cactus cannot legally terminate you for joining this lawsuit

The law clearly prohibits any retaliation against current or former employees for joining this lawsuit or reporting violations. To read more about the anti-retaliation provisions of the Fair Labor Standards Act, please see my article: Employer Retaliation—Know your workplace rights.

Read our original post: Austin’s Iron Cactus under wage investigation by Texas employment lawyers

Department of Labor issues FLSA and FMLA updates

Tue, 31 Jan 2012 08:00:00 EST

When an employee makes a complaint about unfair pay the Labor Department understands that the employer usually has an unfair advantage to treat employees badly. That’s why the laws are written to protect employees against employer retaliation in wage and hour claims.

The Department of Labor’s Wage and Hour Division recently issued three new fact sheets that discuss employer retaliation.

Our employment lawyers have written quick summaries of the new information.

Fact Sheet #1

This refers to Section 15(a)(3) of the Fair Labor Standards Act that states that:

It is a violation for any person to discharge or discriminate against any employee that has filed any complaint or proceeding related to the FLSA;
Employees are protected regardless of whether the complaint is made orally or in writing;
Most courts have ruled that internal complaints to an employer are also protected.

Fact Sheet #2

This fact sheet provides concerns the Family and Medical Leave Act’s (FMLA) prohibition of retaliating against an individual for exercising his or her rights or participating in FMLA matters.

The fact sheet explains that under the FMLA an employer is prohibited from:

Restraining the exercise of any FMLA rights;
Discharging or discriminating against any person for complaining about any unlawful FMLA practices;
Refusing to authorize FMLA leave for an eligible employee;
Discouraging an employee from using FMLA leave;
Manipulating an employee’s work hours to avoid responsibilities under the FMLA.

Fact Sheet #3

This concerns prohibiting retaliation under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
Under the MSPA, agricultural employers, agricultural associations, and farm labor contractors who engage in at least one activity as it relates to a migrant or seasonal agricultural worker are required to provide basic workers protections unless otherwise exempt.

Also, anyone who owns or controls a facility or real property that is used for housing migrant agricultural workers must meet federal and state safety and health standards.

If you want more information on wage and overtime claims order our free book, The 10 Biggest Mistakes That Can Hurt Your Wage and Overtime Claim.

Blog: California farm contractor fined for FLSA and child labor violations

28 workers to receive $74,000 after restaurant wage theft

Mon, 30 Jan 2012 08:00:00 EST

More than $74,000 will be paid back to 28 current and former employees of different Los Agaves Mexican restaurant locations near Hot Springs, Arkansas.

A U.S. Department of Labor investigation found that restaurant wage theft was going occurring at the restaurant, as servers, cooks, and dishwashers were forced to accept unfair wages. Not only were the employees not receiving time and a half of their regular hourly rate for the hours over 40 they worked each week, but many of the restaurant workers were also improperly deemed exempt from the Fair Labor Standards Act.

According the KATV Channel 7, the investigation found a total of four Los Agaves locations to be in violation of the FLSA, including those in Nashville, Glenwood, Murfreesboro, and Prescott. Seven Nashville employees will be receiving $17,508; eight Glenwood workers will split $22,402; the Prescott employees will receive $14,148 and the Murfreesboro employees are entitled to $20,355.

The payment of back wages is just part of what the U.S. Department of Labor is requiring of Los Agaves. All locations have agreed to fully comply with all FLSA regulations, and keep accurate payroll and work time records, in addition to providing all employees with a wage greater than or equal to the federal minimum wage of $7.75.

Restaurants are also prohibited from requiring their servers to participate in tip pools, or be required to contribute a portion of their tips to hourly-paid employees.

If you feel that you are a victim of wage theft, contact the Houston wage attorneys at Kennedy Hodges by calling toll-free 888.449.2068, or by filling out our online form.

Tipped employees: Is side work more than 20 percent of your duties?

Mon, 30 Jan 2012 08:00:00 EST

The 99 percent have occupied Wall Street, but there is another part of the population that may need to occupy restaurants nationwide. As a tipped employee in the U.S. your side work may be subject to the 20 percent rule.

Tipped employees and the 20 percent side work rule

Part of being a tipped employee means doing pre-shift side work, which can include:

folding napkins,
prepping service stations, and
stocking server areas.

A wage and hour ruling against Applebee’s highlighted the fact that if you spend over 20 percent of your job duties on side work, your employer could be responsible for paying you minimum wage for your hours.

Case in Point

Applebee’s was sued by 5,543 current and former servers and bartenders for allegedly violating the Fair Labor Standards Act (FLSA). Applebee’s was allegedly taking a tip credit out on bartender’s and server’s minimum wage, but the worker’s duties exceeded a 20 percent threshold of side work duties on shift.

Since these side work duties do not produce tips the employees argued Applebee’s should have paid a full minimum wage for that time. An appeals court sided with the workers, pointing to a 1988 Labor Department handbook with the 20 percent rule.

Supreme Court won’t review Applebee’s case further

The Supreme Court turned down Applebee's request to review the case, leaving the lower court’s ruling intact. The case is set to go to go back to trial in September.

Even the most well-known restaurants apply the wage and hour laws incorrectly. If you are a tipped employee and you are unsure if you are being paid correctly, contact our employment lawyers toll-free at 1-888-449-2068 to start a free case review. You can also order our free book, The 10 Biggest Mistakes That Can Hurt Your Wage and Overtime Claim, to learn more about the FLSA.

Protecting your paycheck: Houston staffing agencies and misreported hours

Sun, 29 Jan 2012 08:00:00 EST

As many Houston employees hired by staffing agencies already know, paychecks are issued by the agency, not by the company where the employee is enlisted to work.

For some workers, this system works out fine. But others could be losing out on hundreds of dollars a month if hours are not reported correctly.

The Houston overtime attorneys at Kennedy Hodges have already discussed on this site the fact that under the Fair Labor Standards Act, non-exempt employees are entitled to minimum wages and overtime pay at time and a half.

Even if it is the temporary company that is not correctly reporting the hours to the agency or the agency that is not properly recording the hours or keeping track of them, ultimately it is the agency’s responsibility to comply with the FLSA and therefore pay back wages if they are due.

One common way that misreporting happens is when a Houston employee works over a portion of his or her lunch hour. For example, let us assume that each week, the employee works 15 minutes into his lunch hour an average of four times a week, but that the agency reports that the full hour was used as a break, instead of only 45 minutes.

If an extra hour of work each week puts the employee at more than 40 hours, he should be entitled to time and a half. If the employee’s regular rate of pay is $20 per hour, he is missing out on $30 per week. If the temporary contract lasts one year, that is $1,560 of missed pay!

If this sounds like a problem you are dealing with, call the Houston overtime attorneys at Kennedy Hodges toll-free at 888.449.2068, and receive a free copy of their book, Ten Biggest Mistakes That Can Hurt Your Wage and Overtime Wage Claim.

California farm contractor fined for FLSA and child labor violations

Fri, 27 Jan 2012 08:00:00 EST

The Department of Labor recently fined a Salinas Valley farm contractor for several wage and hour violations and allegations of employing a 13-year-old to do farm labor during school hours.

Jorge Castro Farms paid $34,650 in back wages to 25 farm workers for minimum wage and overtime violations of the Fair Labor Standards Act and also paid $13,900 in penalties.

Labor law violations included housing, safety and health violations of the Migrant and Seasonal Agricultural Worker Protection Act. The DOL reported violations that included:

crowding,
electrical hazards,
substandard cooking facility, and
unsanitary conditions.

Migrant, seasonal and temporary farmworkers - what the labor laws say.

Under the U.S. Department of Labor's Migrant and Seasonal Workers Act, all employers must:

Pay workers the wages they are owed when those wages are due;
Ensure that any transportation is insured and driven by a licensed driver. Any vehicle used must comply with federal and state safety standards.
All employees must be provided with the terms and conditions of their employment, in writing.
Federal and state health and safety standards must be met if the employer provides housing for migrant workers.

The U.S. Department of Labor states that whether or not a worker is covered under the FLSA is determined by the status of employment and not by immigration status, which means that immigrants are eligible to overtime pay. The FLSA protects workers regardless of whether the employee is a legal permanent resident or a U.S. citizen.

Texas employment lawyer says migrant workers are frequently taken advantage of.

“Migrant workers, seasonal workers, and low-wage workers are frequently the target of abusive employers who constantly violate the labor laws. Many workers don’t know that the wage and hour protections can still apply to them,” said employment lawyer Galvin Kennedy.

If you have questions about wage and hour laws for migrant, seasonal, or temporary workers contact our office toll-free at 1-888-449-2068 to have one of our employment attorneys review your case for free.

Kennedy Hodges does not represent the case above, but we have recovered back pay for employees in all industries nationwide.

Read More: Tips for Migrant or Seasonal Workers Suffering Unfair Treatment

Novartis pays $99 million to settle federal FLSA lawsuit

Thu, 26 Jan 2012 08:00:00 EST

A judge recently approved a preliminary settlement of $99 million in a class-action wage and hour case for U.S. sales representatives against pharmaceutical company Novartis AG.

About 7,700 current and former Novartis sales representatives claimed that the company did not compensate them for overtime hours outside the business day. Some of the claims go back as far as 2000.

This would represent the first major settlement of a pharmaceutical overtime case. The case was in litigation for almost six years.

Courts split on whether drug reps are entitled to overtime
The Department of Labor has stated that pharmaceutical sales reps are eligible to receive overtime because they do not qualify for the outside salesperson exemption. But some courts have sided on both sides of the aisle in these cases, with some lower courts ruling in favor of the sales reps and some appeals courts deciding they are exempt. The U.S. Supreme Court is already set to hear arguments in a similar wage and hour case for sales representatives against GlaxoSmithKline.

The decision in the Novartis case can have great impact on how future cases will be decided in Fair Labor Standards Act (FLSA) cases against other drug manufacturers.

Inside vs. Outside Salesperson Classification
One issue that courts usually consider in these cases is whether you are an inside salesperson or an outside salesperson. An inside salesperson generally works selling a product from an office setting. An inside salesperson is normally considered an hourly, non-exempt employee eligible to receive overtime pay and commissions.

An outside salesperson works in the field bringing in leads or selling products door to door and is generally considered exempt from receiving overtime pay. However, sales people are often misclassified by their employers, which cheats them out of their hard-earned wages every day.

Read more: Are you misclassified as an outside salesperson?

Are you a misclassified salesperson?
If you are working over 40 hours a week, but something doesn’t add up on your check call our employment lawyers to start a free, no obligation case review. We can review your job duties for free to determine if you are paid correctly under the FLSA. Contact us toll-free at 1-888-449-2068 or send us a confidential contact form.

Kennedy Hodges does not represent the case above, but we have recovered back pay for employees in all industries nationwide. Contact us for a free consultation.

Forever 21 made wage and hour faux pas with employee pay

Tue, 24 Jan 2012 08:00:00 EST

Forever 21 is known for its chic clothes at low prices, but now employees are uncovering an unattractive side of the retailer. Five employees are filing a wage and hour complaint alleging that when it comes to paying employees for their work the retail store comes up short.

The Forever 21 employees claim that they were frequently detained before leaving the store but were never compensated for the time spent waiting. The employees are suing the retailer for time spent at work, including:

Working through meal breaks
Being detained after hours (after clocking out) to have their bags checked for stolen goods.

Retail Sales employees and the FLSA
Retail employees are on their feet all day, helping customers, keeping the store clean, keeping items neatly on display, working the cash register, and doing various other duties.
Employees in retail stores who do not make commissions are considered non-exempt, hourly employees. This means that if you work over 40 hours in a week you should be paid overtime for those hours. For example, if you work 50 hours a week you should be paid your regular rate of pay for 40 hours, and you should also be compensated at 1.5 times your regular pay rate for 10 overtime hours.

Cheating workers out of their pay – everyone is at risk.
Many employers violate the law by simply not paying overtime, or by paying employees straight time for overtime hours. These are violations of the federal wage and hour laws. If you are not paid overtime, you could be owed money by your employer.

What to do if you are a retail sales employee not paid overtime.
You can recover up to two years of back pay (three years for willful violations) by contacting our employment lawyers to determine if you have a case. Contact us toll-free: 1-888-449-2068, or send us a confidential contact form to start a free case review.

You may be shocked at how 10 or 15 minutes a day at work can add up to thousands of dollars in a wage and hour claim. Learn how to recover your unpaid wages by reading our 3 Quick Tip Articles:

Kennedy Hodges does not represent the case above, but we have recovered back pay for employees in all industries nationwide. Call our office toll-free for a free wage claim consultation.

Quick Tip #1: How to Double Your Wage Claim Using Liquidated Damages Under the FLSA.
Quick Tip #2: How to Get Your Employer to Pay for Your Attorney's Fees under the Fair Labor Standards Act
Quick Tip #3: How to Add An Additional Year to your Wage and Overtime claim under the Fair Labor Standards Act