Restaurant Employee Alleges Spread of Hours Pay Abuse

The issue of spread of hours pay has come up in a recent proposed wage and hour class action lawsuit filed by a New York man alleging federal labor law violations.

Lead plaintiff J. Chen alleges that his boss failed to pay him New York’s minimum wage rate, overtime, or spread of hours pay, and he says he was given a fixed monthly salary of $2,080 regardless of how many hours worked. The claimant alleges he was forced to work 92 hours in a single workweek and that the time was not reflected in wage documents.

According to the proposed wage and hour class action lawsuit, Chen had worked as a delivery driver for New King’s Wok Kitchen Inc., which had allegedly failed to keep sufficient wage statements and had tried to avoid paying full compensation for all hours worked.

The spread of hours requirement is a legal requirement in New York state. It requires employers to pay an extra hour of pay at the minimum rate to non-exempt employees when the “spread” between the employee’s start time and end time exceeds 10 hours in a single work day. Similarly, employees who work slightly less than 10 hours a day but still reach it with the addition of meal breaks and rest periods, must also receive spread of hours pay.

It is important to note that employers do not have to include spread of hours pay when adding up overtime pay.

Overview of Proposed Wage and Hour Class Action Lawsuit

In addition to withholding spread of hours pay on work days longer than 10 hours, the company also did not give any breaks or overtime pay to Chen.

“Defendants knew that the nonpayment of minimum wage, overtime pay, spread of hours pay, unlawful retention of tips and failure to provide the required wage notice at the time of hiring and failure to provide a correct wage statement with every payment of wages would financially injure plaintiff and similarly situated employees and violate state and federal laws,” the proposed wage and hour class action lawsuit stated.

Chen reportedly worked part time as a delivery man for the New King company from February 2016 to June 2017. Chen alleges his boss “had acted intentionally and maliciously” when making business decisions, including determining how many hours worked and whether or not to apply overtime rates.

During this time, Chen had been forced to work every day of the week with a fixed daily rate of $70 for 12.5 hours. This made his hourly $5.60, which violates New York labor laws and the FLSA.

Chen opted to file this potential wage and hour class action lawsuit on behalf of himself others similarly situated, as well as previous employees, who were allegedly denied proper wages. He estimates there are currently over 40 class members who were not able to file their own legal action due to lack of finances. Chen is also seeking to recover $300 in liquidated damages for every work day on which violations occurred, up to a maximum of $10,000.

This proposed Wage and Hour Class Action Lawsuit is Case No. 1:17-cv-07440, in the U.S. District Court for the Southern District of New York.

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