Restaurant Accused of Independent Contractor Misclassification

A California restaurant faces a wage and hour lawsuit alleging that an independent contractor misclassification resulted in withheld overtime pay.

Plaintiff Teresa A. filed a wage & hour lawsuit against El Malecon Mariscos restaurant, claiming that an independent contractor misclassification resulted in her not getting the overtime pay she was owed.

Teresa says she was hired in August 2015 to cook meals, take food orders, and to work the register. She argues that El Malecon Mariscos willfully committed an independent contractor misclassification despite the fact that she was not engaged in an occupation separated from the business of the restaurant.

The plaintiff alleges that the restaurant provided location and tools, Teresa was paid an hourly rate, and the restaurant had the right to control how Teresa performed her job.

Teresa argues that employers are not allowed to commit willful independent contractor misclassification, or calling a worker an independent contractor when they are actually employees under the law. Teresa believes that her independent contractor misclassification was not unique, and many other employees experienced the same thing.

Teresa and other employees allegedly worked in excess of eight hours a day and forty hours a week. Despite working over forty hours a week, Teresa allegedly did not receive overtime rates of pay and was instead paid a flat hourly rate of $12.50 an hour.

Teresa also claims that she was not given her entitled rest and meal breaks.

“Generally, nobody from management ever relieved Plaintiff of duty so that she could take such a ten-minute rest break for every four hours worked, or a thirty-minute meal break for every five hours worked. Even when she was able, on her own accord and initiative, to take a meal break, that break was often cut well short of thirty minutes due to the demands of the strenuous job,” the lawsuit states. Teresa also states that she was not compensated for missed breaks with a premium pay, as mandated by labor laws.

The lawsuit claims that her independent contractor misclassification is the reason she was denied her right to breaks and overtime pay, along with other workers at the restaurant.

According to California labor law, “If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law […] the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided”.

The restaurant also allegedly retaliated against her when she took sick leave. Instead of giving her the leave that she was owed, they allegedly deducted ten hours of pay from her wages. Other violations of labor laws include paying a lower hourly wage than promised, requiring employees to work off the clock, withholding tips from employees, deducting wages for required uniforms, and failing to reimburse employees for travel expenses.

Teresa accuses the restaurant of violation of labor codes. The independent contractor misclassification lawsuit seeks unpaid wages, reimbursement of expenditures, withheld gratuities, penalties, damages, court costs, and attorneys’ fees.

The California Wage & Hour Lawsuit is Case No. 3:18-cv-01899-LB in the U.S. District Court for the Northern District of California.

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