Restaurant Worker Who Works More than 40 Hours Per Week is Entitled to Overtime Pay

Absent an applicable exemption, all of which are narrowly construed, the Fair Labor Standards Act (“FLSA”), and the Pennsylvania Minimum Wage Act (“PMWA”) require that employers pay an employee overtime pay when the employee works more than 40 hours per week. There are many reported cases where smaller employers erroneously believe that due to their size they are not subject to the overtime requirements. Under the FLSA, employers who are deemed to engage in interstate commerce and have more than $500,000 in gross sales are subject to overtime pay requirements. The interstate commerce requirement is interpreted very broadly and in most circumstances the requirement can easily be met. The FLSA provides that employers who violate the law are liable to employees for their back wages and an additional equal amount in liquidated damages. When a dispute concerning overtime proceeds to litigation in court, employers may also be required to pay the employees’ attorneys’ fees and costs.

In Diaz v. Counsins, Inc. (E. D. Pa. no. 15-cv-06620) (June 7, 2016, Pappert, J.), the employee worked at a restaurant for approximately three years. The employee typically worked approximately 65-70 hours per week but the employee alleged that he never received overtime premium compensation for any hours worked over forty per week. The employee’s duties primarily included working in the kitchen performing manual labor, as well as preparing and cooking food. The employee also regularly received, unloaded, inspected and moved shipments from vendors who provided food and other supplies to the employer.

The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by the agreement of the employer and the employee. When an employee works more than 40 hours in a given week, the employer must pay any employee, who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, not less than one and one-half times the regular rate at which he is employed.

In Diaz, the employer argued that the employee failed to include sufficient factual allegations that he was engaged in interstate commerce in the Complaint that the employee filed in court, however, the Court denied the employer’s Motion to Dismiss, finding that the employee’s allegations were sufficient in that he alleged that an employer/employee relationship existed because for approximately three years; the employer employed the employee Plaintiff at a Philadelphia restaurant; the employee was paid an hourly wage; and the employee contended that he regularly received shipments from food vendors such as Sysco, which supplied food and other supplies to the employer. The Court held that these allegations were sufficient to show movement in interstate commerce and that the employee engaged in commerce, including receiving and preparing food that had moved in commerce, Further, the employee alleged that the employer’s gross sales exceeded the FLSA’s $500,000 requirement. Therefore, the Court held that the employee’s Complaint went beyond a threadbare recitation of the required FLSA statutory language and alleged sufficient facts to plausibly establish coverage under the FLSA. In so doing, the Court held that with regard to work hours at the pleading stage it was sufficient for the employee to allege 40 hours of work in a given workweek as well as some uncompensated time in excess of 40 hours by stating that he worked approximately 65-70 hours during a typical week and never received overtime premium compensation for hours worked over 40 per week.

Abramson Employment Law represents employees who have FLSA claims for unpaid wages and overtime pay. For more information see


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Filed under Fair Labor Standards Act, Pennsylvania Wage Payment and Collection Law, Unpaid Overtime FLSA, Unpaid Wages

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