California Overtime Lawsuit Victory for Restaurant Employees

San Francisco, CAWhile the owners of two Asian restaurants dished out generous portions of noodles and pho, they were stingy when it came to paying their employees California overtime. But those employees at Pho Clement and Pho Clement 2 restaurants stood up for their rights and won an overtime California lawsuit.

The eight employees, all immigrant workers, were recently awarded more than $316,000 to settle an overtime lawsuit, which was brought by California Labor Commissioner Julie A. Su. The settlement was reached also with the help of The Asian Law Caucus, Chinese Progressive Association and the Progressive Workers Alliance.

Last August 2011, one of the restaurant's former employees reached out to the Department of Industrial Relations' (DIR) Division of Labor Standards Enforcement, also known as the Labor Commissioner's Office. Luong Vuong told CBS San Francisco through a translator that he had worked "12.5 hour days, 6 to 7 days a week without tips or breaks for about $5 an hour."

Each of the plaintiffs in the overtime lawsuit will be paid an amount ranging from $17,432 to $85,114 depending upon the amount of unpaid wages they were owed.

A spokesperson for the Department of Labor Standards and Enforcement, Donna Chen, said their priority is to ensure minimum wage and other work laws are followed.

Just like they see an opportunity to cheat teenagers and young adults out of overtime pay, many employers take advantage of workers whose second language is English. They count on people who do not know where to turn and who do not know the California Labor Law. To make matters worse, many restaurant workers are paid "under the table" and fear they will be fired or worse, deported, if they speak out.

"While there are plenty of workers who are willing to work overtime, there are also many employers who take advantage of worker's naïveté and fail to compensate them for their time worked," said Eric Grover, a wage and hour California employment attorney. "Employees need to educate themselves in order to ensure that their employer is responsible and adheres to the appropriate employment regulations. Grover added that "Some employers will continue the illegal practice until someone makes a complaint."

Those workers above were eligible to receive overtime pay under the Fair Labor Standards Act (FLSA). Some states have labor law provisions that include the exemptions, while some cover beyond what the FLSA requires. California law states that an employer must pay overtime to any employee who works more than 8 hours in a day or 40 hours in a week. When an employee works more than 8 hours in a day, or beyond 6 consecutive days, he or she is entitled to one-and-a-half times their regular rate of pay. An employee is due double their amount of regular pay when he or she works beyond 8 hours on the 7(th) consecutive working day, or if he or she works beyond 12 hours in one workday.

According to the US Department of Labor, failing to adhere to FLSA resulted in the payment of $175.6 million in minimum wage and overtime back wages to 208,000 employees in 2010 alone.