Perez v. Palermo Seafood, Inc.
| Citation | 548 F.Supp.2d 1340 |
| Decision Date | 03 March 2008 |
| Docket Number | No. 07-21408-CIV.,07-21408-CIV. |
| Parties | Odalys PEREZ and others similarlysituated, Plaintiffs, v. PALERMO SEAFOOD, INC., a Florida corporation d/b/a Fico Key West Seafood, and Juan Zieggenhirt, individually, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Edilberto O. Marban, Miami, FL, for Plaintiff.
Jose M. Herrera, Jose M. Herrera, P.A., Coral Gables, FL, for Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS MATTER comes before the Court on a bench trial on February 11, 2008. The parties consented to trial before a United States Magistrate Judge. See Consent to Exercise of Jurisdiction by a United States Magistrate Judge (DE# 17, 8/9/07). This matter was referred to the undersigned by the Honorable Ursula Ungaro in accordance with 28 U.S.C. § 636(b). Id. The Court has reviewed the testimony and exhibits presented at trial and makes the following findings and conclusions:
FINDINGS OF FACT
1. Juan Zieggenhirt (hereinafter "defendant")1 is the president and 25 percent owner of Palermo Seafood, Inc.
2. Palermo Seafood, Inc. does business as Fico Key West Seafood (hereinafter "restaurant").
3. The restaurant is a seafood restaurant, a fish market and a cafeteria.
4. The defendant was the manager of the restaurant.
5. The defendant hired and fired employees at the restaurant and determined their compensation. The defendant interviewed prospective employees.
6. The defendant was at the restaurant six days a week. When the defendant was not at the restaurant another manager was present. A manager was always present at the restaurant.
7. The defendant knew he had an obligation to pay overtime and minimum wage.
8. The restaurant was open seven days a week. The cafeteria was open from 7:00 a.m. to 9:00 p.m. The sit-down section of the restaurant was open from 11:00 a.m. to 10:00 p.m. on weekdays and 11:00 a.m. to 11:00 p.m. on weekends.
9. Odalys Perez (hereinafter "plaintiff) was employed as a waitress at the restaurant from March 13, 20062 to February 25, 2007.3
10. The plaintiff worked in the cafeteria. The cafeteria consisted of a counter inside the restaurant and a window where customers outside the restaurant could place their orders.
11. The plaintiff worked two shifts during the workweek. The first shift was from 7:00 a.m. to 3:00 p.m. on Monday and Tuesday. The second shift was from 9:00 a.m. to 9:00 p.m. from Thursday through Sunday. The plaintiff did not work on Wednesday.
12. Although her shift started at 7:00 a.m. on Monday and Tuesday, the plaintiff arrived at the restaurant at 6:00 a.m. to prepare orange juice, cook pastries, croquettes and other foods and fill the condiment containers before the restaurant opened at 7:00 a.m.
13. On Monday and Tuesday, the plaintiffs shift ended at 3:00 p.m. The plaintiff stayed at the restaurant until approximately 3:30 p.m. because she had to take inventory of the cigars and cigarettes and wait for the defendant's wife to balance the cash register. After the cash register was balanced the plaintiff would receive her tips from credit card purchases.
14. When the plaintiff worked the 9:00 a.m. to 9:00 p.m. schedule, she would attend to customers ordering at the counter and take telephone orders. She did not take orders from the window. She would occasionally help with the fish market when they were short an employee.
15. During the first month of her employment, the plaintiff left the restaurant around 9:15 or 9:20 because she had to take inventory of the cigars and cigarettes, disassemble, clean and reassemble the juicer and wait for the defendant's wife to balance the cash register. During the first month, the plaintiff did not clean the restaurant because the restaurant had a cleaning crew in the evenings.
16. After the first month, the restaurant no longer employed a cleaning crew. The plaintiff would clean the restaurant in addition to her other duties. As a result, the plaintiff left the restaurant around 9:45 p.m.
17. At the end of each shift, when the cash register was balanced, the plaintiff was paid her credit card tips in cash. Sometimes the tips were placed in a tip jar.
18. During her employment with the defendant, the plaintiff was sick about three times. There was an additional week when the plaintiff worked Monday through Thursday because she was visiting her brother. Thus, there were four weeks when the plaintiff did not work overtime at the restaurant.
19. The defendant used time cards to keep track of the hours worked by employees. The time cards do not accurately reflect the total hours worked by the plaintiff. Some of the time cards are illegible. Other time cards show erratic hours and do not correspond with the shifts worked by the plaintiff. For example, one time card reflects that the plaintiff began work at 3:52 p.m. and left at 9:10 p.m. Another time card reflects that the plaintiff began work at 11:56 a.m. and left at 2:02 p.m.
20. The plaintiff was paid $3.38 an hour plus tips in 2006 and $3.65 per hour plus tips in 2007.
21. On average, the plaintiff earned $25 to $30 per day in tips on Mondays and Tuesdays during the 7:00 a.m. to 3:00 p.m. shift and $50.00 per day in tips on Thursdays through Sundays when she worked the 9:00 a.m. to 9:00 p.m. shift.
22. The plaintiff was paid biweekly.
23. For the first three months of the plaintiffs employment, the defendant paid the plaintiffs wages in cash.
24. In June 2006, the defendant began paying a portion of the plaintiffs wages through the issuance of a payroll check. The remainder of the plaintiffs wages were paid in cash. Prior to this, all of the plaintiffs wages were paid in cash.
25. The defendant outsourced its payroll functions to Gevity. For each pay period, the defendant would report to Gevity the number of hours worked by certain employees.
26. The defendant underreported the total hours worked by the plaintiff per pay period. Only a portion of the hours worked by the plaintiff were reported to Gevity. The cash payments made to the plaintiff were not reported to Gevity. The defendant did not keep any records of the cash payments made to the plaintiff or the hours that the plaintiff worked that were not reported to Gevity.
27. The plaintiff was not paid time and a half when she worked overtime.
1. This is an action for minimum wage and overtime violations under the Fair Labor Standards Act (hereinafter "FLSA"), 29 U.S.C. § 201, et seq. The plaintiff also makes a claim under the Florida Minimum Wage Act. Fla. Stat. § 448.110.
2. This Court has jurisdiction over the subject matter and the parties pursuant to the FLSA. The parties do not dispute that venue properly lies in the Southern District of Florida.
3. The FLSA was enacted in 1938 in order to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers ..." 29 U.S.C. § 202(a), (b). Anterior v. D & S Farms, et al, 88 F.3d 925, 929 (11th Cir.1996).
4. The FLSA applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell or work on goods or materials that have been moved in or produced for interstate commerce.
5. Under the FLSA, employers must keep payroll records and pay employees a minimum hourly wage and overtime. 29 U.S.C. §§ 201-11. Antenor, 88 F.3d at 929.
6. Florida's minimum wage is guaranteed by the Florida Constitution. Fla. Const. Art. 10, § 24. The Florida Minimum Wage Act, Fla. Stat. § 448.110 "provide[s] measures appropriate for the implementation of s. 24, Art. X of the State Constitution." Fla. Stat. § 448.110(2).
7. "The provisions of §§ 213 and 214 of the federal Fair Labor Standards Act, as interpreted by applicable federal regulations and implemented by the Secretary of Labor, are incorporated [in the Florida Minimum Wage Act]." Fla. Stat. § 448.110(3).
8. Under the FLSA, the term "employer" includes "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). "The overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages." Patel v. Wargo, 803 F.2d 632, 637-38 (11th Cir.1986) (citing Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.1983)).
9. The defendant is an "employer" for FLSA liability purposes. Based on the evidence adduced at trial, the Court finds that the defendant exercised control over the business, financial and employment affairs of the restaurant. The defendant was at the restaurant six days a week as a manager supervising employees including the plaintiff. The defendant hired and fired employees and determined the restaurant's policies including that the restaurant would not pay overtime.
10. An employee who brings a lawsuit under the FLSA for unpaid minimum wages or unpaid overtime compensation and liquidated damages bears the initial burden of proving that she performed the work for which she was not properly compensated. Santelices v. Cable Wiring, 147 F.Supp.2d 1313, 1328 (S.D.Fla.2001) (citing Anderson v. ML Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superceded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293 (D.C.Cir. 1972)).
11. In Mt. Clemens, the Supreme Court recognized that "[w]hen the employer has kept proper and accurate records the employee may easily discharge his burden by securing the production of those records," but "where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes a more...
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