LOS ANGELES — A line cook for an LA-area restaurant chain became the class representative in a class action overtime lawsuit filed against their employer, 9021Pho. The cook, Jorge Alvarez, alleges that the restaurant failed to pay him overtime wages after misclassifying him as an exempt employee. Additionally, he alleges that the restaurant gave them incomplete wage statements and deprived them of meal and rest breaks, in violation of the Fair Labor Standards Act (FLSA). Alvarez is seeking, on behalf of the class, compensation, damages, penalties of $100 for each initial violation and $200 for each subsequent violation per person, and attorneys’ fees.
Misclassified Cooks
According to Alvarez, the restaurant required employees to regularly work more than 40 hours per week prepping ingredients, cutting vegetables, and cooking meals. However, the restaurant classified them as exempt employees and, therefore, paid them fixed salaries despite working more than eight hours a day, in violation of FLSA and the California Labor Code’s minimum wage laws. The restaurant gave them wage statements that failed to accurately reflect the number of hours they worked, depriving them of adequate pay information that they are legally entitled to.
Whether an employee is exempt under the FLSA depends on an analysis of his or her job duties. The Wage and Hour Division at the Department of Labor, which enforces FLSA, states that employees must meet certain tests regarding their duties and, if exempt, must be paid on a salary basis at not less than $455 per week. Exempt employees may include executive, administrative professional, and outside sales employees, as well as certain computer employees. Ultimately, courts will look at specific job duties in determining compliance with Department of Labor regulations regarding an employee’s proper classification.
Deprivation of Meal and Rest Breaks
Alvarez also claims that the restaurant did not permit him to take a 30-minute meal break at the end of his fifth hour of work, or a 10-minute rest break every four hours. The California Labor Code requires employers to provide employees with at least a 30-minute meal break if they work more than five hours per day. If the employee works more than 10 hours per day, then employers are generally required to provide a second 30-minute meal period. During this meal period, the employer must relieve employees of all duties, relinquish control over their activities, and allow them a reasonable opportunity to take an uninterrupted 30-minute break in which they are free to come and go as they please. If the employer fails to relinquish control and, for example, require employees to remain on the premises during the meal period, they are entitled to compensation for your meal period.
Additionally, employers in California are required to provide certain covered employees with a net 10-minute rest period for every four hours worked. As much as practicable, this rest period must be in the middle of the four-hour work period. If the employer fails to provide this rest period, then he or she must pay employees one additional hour of pay for each workday that the rest period is not provided.
If you or someone you know is misclassified as an exempt employee and has a claim for unpaid overtime wages, or is being deprived of meal and rest breaks that are required by law, you should call (855) 754-2795 or complete the Free Unpaid Overtime Case Review form on the top right of this page. Our top rated team of wage lawyers will evaluate your situation to determine your best course of action. We will also determine if it is in your best interest to file a lawsuit against your employer. There are strict time limitations for filing so it is important that you call our experienced attorneys today.