Even Up-scale Eateries Violate Overtime Law

Manhattan, NYJust about everyone in the hospitality industry knows the work usually involves long hours, especially in small businesses. But no matter if you work for a "Mom and Pop" restaurant or a nationwide hotel chain, overtime law states that you must receive overtime pay if you are paid an hourly wage and work more than 40 hours in a week.

Working overtime doesn't necessarily mean the restaurant is staying open any later. Tanya (not her real name) is a hostess in a small yet trendy eatery and she is required to work overtime until the restaurant's cash is balanced each night. "On days that my till does not balance, I have to work for free until I find the discrepancies," she says. "This would often require me to take paperwork home if I'm unable to find outage before the bank closed and at times I was late for my second job because of this requirement."

Although management generally does not qualify for overtime, many restaurants take advantage of salaried employees. Loreen is a manager at Denny's and says she was forced to work a minimum of 60 hour work weeks, "due to lack of professional coverage necessary to run a restaurant." Loreen was promised extra compensation if she worked more than 45 hours per week, "but I still have not been compensated for any additional hours worked nor have I been compensated for the additional work load," she says.

Lastly, Chris worked the summer as a dishwasher—he went back to college this September. "I was working at least 60 hours a week, 7 days a week but never got paid any overtime," says Chris. "In those summer months I would rarely ever see a day off." He wants to know if the owners of the restaurant are legally obligated to pay him overtime [YES!], because Chris has calculated that they owe him over $4500.00 in overtime pay.

Last April, restaurant workers rallied in New York and chanted, "It's illegal, it's a crime. Pay your workers overtime." More than 100 workers—mainly immigrants and mainly employed by up-scale restaurants--were led by the Restaurant Opportunities Center (ROC) to protest not getting paid overtime and misappropriated tips.

(ROC also helped workers win $164,000 from the Smith & Wollensky Restaurant Group in 2005; a lawsuit claimed the group discriminated against Latino workers and failed to pay overtime. ROC was formed in 2002 to help former employees of Windows on the World and has since morphed into an advocate for immigrant restaurant workers.)

Even Daniel Bouloud, arguably New York's most famous chef, settled a federal lawsuit last year that alleged overtime violations along with discrimination charges and harassment.

In January 2008 three former waiters sued Pastis and Balthazar—two more hi-end restaurants in Manhattan, alleging they had failed to pay minimum wage and overtime while letting non-tipped employees share in their tips. The restaurant workers sought class action status, which would let them include as plaintiffs any worker who claimed to have been cheated of pay during the last six years.

The lawsuit said it was likely that more than 100 people would be in the class, which means anonymity would be provided to current workers at the restaurants.

Other lawsuits filed in federal court targeting upscale eateries in Manhattan and elsewhere in the world are pending but they all seek to recover unspecified damages and to require a change in the way the restaurants treat their workers. It's been a long time coming…