Restaurants, Owners and Managers Ordered to Pay 700K to Employees

A consent judgment was entered in the U.S. District Court for the Eastern District of Wisconsin requiring El Azteca Restaurant Group, including the restaurants, the owners and the managers, to pay 129 current and former employees, $700,000 in back wages and liquidated damages.  

In addition to many other requirements in the Order, it also provides that if the owners of the restaurants sell business assets prior to completing payment of the back wages, damages and penalties, the proceeds of the sale must go directly toward the debt owed to the workers; and if the individual defendants sell their primary residence, the Secretary of Labor will place a lien on any new residence purchased. 

 

PK Law’s 2016 Super Lawyers and Rising Stars

Pessin Katz Law, P.A. (PK Law) is honored to have twenty- five of its attorneys selected for inclusion in Super Lawyers Magazine’s top attorneys in Maryland for 2016.

PK Law’s 2016 Super Lawyers are

  • Steve A. Allen – Business Litigation
  • James R. Benjamin, Jr. – Environmental Litigation
  • Robert S. Campbell – Business Litigation
  • Joan Cerniglia-Lowensen Personal Injury – Medical Malpractice – Defense
  • Gregory K. Kirby – Personal Injury – Medical Malpractice – Defense
  • Thomas D. Kohn – Business Litigation, Business/Corporate
  • Patricia McHugh Lambert – Business Litigation
  • Michael E. Leaf – Real Estate
  • Natalie C. Magdeburger – Personal Injury – Medical Malpractice – Defense
  • Mairi Pat Maguire – Personal Injury – Medical Malpractice – Defense
  • Mark D. Maneche – Business Litigation
  • Edmund J. O’Meally – Construction Litigation
  • Lisa Y. Settles – Employment & Labor
  • Leslie R. Stellman – Schools & Education, Employment & Labor
  • Catherine W. Steiner – Personal Injury – Medical Malpractice, Health Care
  • Thomas Zagami – Business Litigation
  • Drake Zaharris – Business Litigation, Business/Corporate, Construction Litigation

 

PK Law’s 2016 Rising Stars are

  • David A. Burkhouse – Employment & Labor
  • Brian M. Cathell – Personal Injury – Medical Malpractice – Defense
  • Chantelle M. Custodio – Personal Injury – Medical Malpractice – Defense
  • Cheryl A. Jones – Estate Planning & Probate
  • Talley H-S Kovacs – General Litigation
  • Kimberly Longford – Personal Injury – Medical Malpractice – Defense
  • Kimberly H. Neal – Business Litigation
  • Andrew G. Scott – Schools & Education
  • Aiden F. Smith – Criminal Defense

Only 5 percent of the lawyers in Maryland are identified as Super Lawyers by their peers and through the independent research of Law & Politics. PK Law has been honored over the past years to have numerous members and associates named as Super Lawyers and Rising Stars.

We congratulate these attorneys as this shows their dedication to PK Law clients and professionalism within the legal field.

PK Law Receives Baltimore Sun Top Workplaces Honor for 2015

Top10WorkPlaces

For the fourth year in a row, PK Law was selected one of the Baltimore Sun’s Top 100 Workplaces.  

The selection was based on information gathered from surveys taken by the firm’s employees.  The survey solicited information about work/life balance, managers, pay and benefits, where the company is headed, execution, connection and engagement.  PK Law was among an impressive group of companies and was one of only three law firm’s among the 100 workplaces for 2015.

PK Law Recognized in Benchmark Litigation as One of Maryland’s Leading Litigation Firms

PK Law has been recognized in Benchmark Litigation as a recommended firm for litigation in Maryland for 2016. PK Law is one of only 14 Maryland firms selected as a recommended or highly recommended firm for litigation in Maryland.

In addition, Steve Allen was selected a Benchmark Local Litigation Star for 2016 in the areas of Criminal, General Commercial, Professional Liability and White Collar Crime.

Below is the PK Law profile on the Benchmark Litigation website:
Pessin Katz Law joins the list this year after receiving high praise from clients and competitors throughout Maryland. Its nearly 50 attorneys, half of whom are litigators, represent businesses and entrepreneurs, individuals, institutions, insurers, medical professionals, and health care facilities. “Steven Allen is the person I’d go to,” says an adversary, elaborating that Allen is ruthless in fighting the government for people in need of legal assistance. He has more than three decades of experience that emphasizes commercial, general litigation, and criminal defense. A client unabashedly says, “I have known these attorneys for many years, and they are highly qualified experts in their areas of expertise.” In a recent case, Allen represented the former President of Bradford Bank when a complaint was filed against it in connection with the failure of the bank, which was taken over by the FDIC in 2009. Natalie Magdeburger is probably the best trial attorney I have ever seen – and I have been involved in litigation for over 30 years! We definitely will continue to use the firm. We use a number of other excellent firms, but I think the Pessin Katz medical malpractice team is one of the best.” Magdeburger represented Johns Hopkins in a case in which the plaintiff accused the client of knowingly exposing her and her family to an unnecessary risk of lead-based paint and dust during her residence at a residential property in Baltimore. She secured a victory for the client when the Court granted summary judgement in favour of Johns Hopkins on all accounts.

What is Benchmark Litigation?
Benchmark exclusively covers the litigation market. The original publication, Benchmark Litigation—the definitive guide to America’s leading litigation firms and attorneys—is the only publication to focus exclusively on US litigation. The results of Benchmark Litigation stem from the culmination of a six-month research period where researchers conduct extensive interviews with litigators and their clients to identify the leading litigators and firms. During these interviews, researchers examine recent casework handled by law firms and ask individual litigators to offer their professional opinions on peers.
Firms cannot pay to be recommended for the guide. Instead, firms have been independently offered the opportunity to take a professional listing regardless of editorial content. Recommendations are based on interviews with the nation’s leading private practice lawyers and in-house counsel.

In an effort to provide the most accurate and comprehensive coverage of the litigation market, listings are done on a national and state level.

“To Suffer Or Permit To Work” – That Is The Question!

On the heels of several cases involving worker misclassification, such as the FedEx decision reported upon in the PK Law newsletter, comes the U.S. Department of Labor Wage and Hour Division’s Administrator’s Interpretation No. 2015-1 issued July 15, 2015 (the “Interpretation”).  In the Interpretation, Administrator David Weil provides “additional guidance regarding the application of the standards for determining who is an employee under the Fair Labor Standards Act (FLSA or “the Act”)”

The Interpretation points out that courts use:

“…the multi-factorial economic realities” test for classifying workers, which test focuses on whether the worker is economically dependent [on the organization receiving the worker’s services] or in business for him or herself. A worker who is economically dependent on an [organization] is suffered or permitted to work by the employer. Thus, applying the economic realities test in view of the expansive definition of “employ” under the Act, most workers are employees under the FLSA. The application of the economic realities factors must be consistent with the broad “suffer or permit to work” standard of the FLSA.” (Citations omitted.)

The Interpretation recites that Congress rejected the common law “control test” in enacting the FLSA.  As a result of the application of the “economic realities test” under the FLSA and the broad definition of “employ” under the FLSA, more workers are treated as employees rather than independent contractors.  The question is whether the worker is “economically dependent” on the company for work, e.g. “suffer or permit to work”.

In making the determination of economic dependence, the Interpretation recites several key factors to be examined.  The first is whether the work is an “integral part of the [organization’s] business”, a factor which the Interpretation states: “Courts have found compelling.”  A determination of this factor is not reliant on the size of the organization or the place at which the worker performs services.

A second key factor is whether the worker’s managerial skill affects the worker’s opportunity for profit or loss.  This factor, according to the Interpretation, involves real business decisions, such as hiring and firing, the purchase of equipment and supplies, and leasing of space, to name a few, and not merely the ability to work more hours.

A third key factor is the relative investment between the worker and the organization to which services are provided by the worker.  The worker’s investment must be “significant” in relation to that of the organization.  Even a worker’s investment of tens of thousands of dollars may pale in comparison to an organization’s overall investment in the product or services it provides, therefore lacking in significance”, according to the Interpretation.

Next, one would look to the “worker’s business skills, judgment and initiative” as a factor to consider in classification as an employee or independent contractor.  This is more than a worker’s “special skills” or “technical skills”.  The Interpretation points out that the lack of making independent decisions “beyond the work that [is being done] for that job” indicates the worker is an employee, not an independent contractor.

The fifth factor examines the permanency of the relationship between the worker and the organization.  The Interpretation points out that a lack of permanence does not “automatically suggest an independent contractor relationship”.  However, independent contractors “typically work[s] one project” as opposed to workers who are engaged on a permanent or indefinite basis, such as “at will” workers, all of whom are more likely to be classified as employees.

Control is also a key factor, according to the Interpretation.  The worker must exercise control which is not theoretical and which is exercised over “meaningful aspects of the work”.  When and where the work is performed is less important than what the worker actually does.  The control factor should not “play an oversized role in the analysis of whether a worker an employee or an independent contractor”.

The Conclusion of the Interpretation states:  “In sum, most workers are employees under the FLSA’s broad definitions.”  Indeed, the finding that workers for an organization are independent contractors under federal and, ultimately state, law is an ever higher bar to reach.

PK Law’s Employment and Labor attorneys have extensive experience in the application and interpretation of wage and hour laws for employers.  To contact an attorney in PK Law’s Worker Misclassification and Wage and Hour Law Group click here.  For additional information contact information@pklaw.com.

 

This information is provided for general information only.  None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy.