Trolling for employees to sue their employers

| September 10, 2012 | News & Comment

By now you have probably heard about the lawsuit filed in Miami federal court by two employees against Darden Restaurants, which operates Olive Garden, Red Lobster, Longhorn Steakhouse and Capital Grille restaurants around the country and employs more than 160,000 people. Amanda Mathis worked as a server at a number of Longhorn Steakhouses in Florida and Georgia, while James Hamilton worked at an Olive Garden in Georgia. Darden has faced attacks from some members of its workforce in the past (see the website www.dignityatdarden.org). But this new lawsuit offers a glimpse of claims and tactics employers are facing with more frequency in Fair Labor Standards Act (FLSA) and wage litigation.

First, Mathis and Hamilton make allegations that seem to be coming up quite a bit these days in FLSA lawsuits, such as:

  • The employer required employees to “work off the clock” at the beginning of their shift without being paid. Mathis and Hamilton say employees were required to report to the restaurant and perform tasks, but were not permitted to clock-in until after the first customer arrived.
  • The employer required employees to clock out at the end of their scheduled shift but could not leave until after completing all their tasks. According to Mathis and Hamilton, employees were not paid for this “off-the-clock” work at the end of their shifts.
  • By not recording this pre- and post-shift work, Mathis and Hamilton claim  restaurants were able to artificially keep reported work time below 40 hours per week and therefore avoid paying overtime to employees.

As we pointed out in an earlier posting, off-the-clock unpaid work is now a hot issue with the Department of Labor and employees involved in FLSA litigation.

Another feature of this lawsuit should grab employers’ attentions: a more sophisticated and methodical approach by plaintiffs and their lawyers to build a class of hundreds of employees and former employees to join in suing the employer. Mathis and Hamilton have filed this lawsuit not only on their own behalf, but also on behalf of thousands of other employees and former employees who have worked for a Darden restaurant since 2009. The strategy is simple: the larger the class of employees suing the restaurants, the larger the cost of litigation and potential liability to Darden. Plaintiffs assume that increased exposure puts greater pressure on an employer and improves the chances the plaintiffs can extract a more favorable settlement. If a class action on wage claims doesn’t settle, plaintiffs reason that an army of jilted employees paraded before a court and jury at trial will be extremely compelling.

And let’s not forget plaintiffs’ attorneys. They don’t make a lot of money on individual FLSA claims, but if they get their hands on a juicy class action representing hundreds or thousands of employees, in the immortal words of Keith Jackson, “Whoa Nellie.” Take a look at www.dardenlawsuit.com. The website is an effective piece of public relations and persuasion. In addition to creating a vehicle for the Darden Restaurants plaintiffs to continue to tell their story, it is an unabashed entreaty for other Darden employees to sue their employer. It screams, “Jump in (the Lawsuit). The Water is fine.”

Don’t be surprised if websites like www.dardenlawsuit.com become the norm in future FLSA and wage litigation.

Whoa Nellie.


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Charlie Plumb

About the author

Charlie Plumb is a labor and employment attorney with the McAfee & Taft law firm. He represents management in all phases of employment law and labor relations. Much of his practice is dedicated to counseling employers on compliance with a broad range of state and federal employment laws and regulations and educating management on best practices for avoiding disputes arising from the employer/employee relationship. He also has extensive litigation experience before federal and state courts, regulatory and administrative agencies, and in arbitration matters involving claims of discrimination, wrongful discharge, retaliatory discharge, breach of contract, and constitutional law violations.

As part of his labor practice, Charlie represents unionized employers in collective bargaining negotiations with labor unions, arbitrates grievances, and defends management against a variety of claims before the National Labor Relations Board and Department of Justice and in state and federal courts. He also represents employers who seek to maintain a non-unionized workforce by counseling management on union avoidance strategies and by providing training and advice to management and supervisors. His clients include numerous municipalities throughout Oklahoma and companies engaged in the manufacturing and distribution, construction, energy, public utility, technology and business services industries.

Charlie is a member of the American Bar Association’s Labor and Employment Law Section and the Oklahoma Bar Association’s Labor Council. He is also the designated representative of McAfee & Taft as the exclusive member firm representing Oklahoma in the Employers Counsel Network, a nationwide affiliation of leading law firms providing legal assistance and representation to employers.

Charlie is a frequent speaker and author on workplace issues. He is also co-editor of the Oklahoma Employment Law Letter, a monthly review of new court decisions, regulations and laws that affect state employers.

Charlie’s achievements have earned him inclusion in The Best Lawyers in America (labor and employment law), Oklahoma Super Lawyers (employment and labor, civil litigation defense), Benchmark Litigation and Chambers USA Guide to America’s Leading Lawyers for Business, where he has been lauded as “an impressive public speaker who utilizes his vast experience to effectively defend clients.” Researchers at Chambers & Partners also quoted market observers as admiring him for his “practicality of advice and specialized knowledge of complex legal issues,” with sources commenting that he “immediately commands respect, is always up to date and knows how to handle a problem.”