Restaurant Pay Court Case May Lead To Wide-Ranging Bay-Pay Problems for Massachusetts Companies

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A Chinese restaurant chain may have to pay back wages to all of the hundreds of employees it may have sent home involuntarily without paying them the equivalent of three hours’ minimum wage, according to a Massachusetts Supreme Judicial Court ruling.

The outcome of the case isn’t decided yet, as the high court remanded it to a trial court, but it could eventually have far-reaching effects in situations where employers can’t prove they complied with state wage laws, even for relatively small amounts for individual employees.

P.F. Chang’s China Bistro Inc. provided records in the case “revealing that, in twenty instances involving the plaintiff, and in approximately 7,000 instances involving hundreds of other employees, the defendant did not provide reporting pay when the plaintiff and these employees were scheduled to work a shift of three or more hours but clocked out before they had worked three hours,” the Supreme Judicial Court said in a decision Friday.

The state’s highest court overturned a trial judge’s dismissal of the case and remanded it back to Suffolk Superior Court in Boston for consideration of other issues, including whether the plaintiff can turn his case into a class-action lawsuit representing other employees affected.

Restaurants often tell waiters, waitresses, and other staff members that they are “cut” if the restaurant isn’t busy – meaning that even if they are scheduled to work eight or more hours, their shift is over.

State law requires that employees who come to work but are sent home early receive at least three hours’ minimum-wage pay if they didn’t work that long. Employees aren’t owed three hours’ worth of minimum-wage pay if they left of their own accord.

Felice Gammella, the plaintiff, greeted customers and helped out behind the bar, took food to tables, and assembled takeout orders at P.F. Chang’s in Cambridge and at Park Plaza in Boston between early 2007 and January 2015, when the company fired him. He maintains that during that time managers often sent him home early without paying him three hours’ worth of wages.

The restaurant chain has computerized records showing what hours each employee was scheduled to work and how many hours they actually worked – but has offered no evidence about why employees who worked fewer than three hours left early.

“P. F. Chang’s did not keep any contemporaneous records of why these employees worked fewer than three hours, so it does not know whether the employees were entitled to reporting pay; as its corporate representative testified, ‘We don’t know why they didn’t work the three hours’,” wrote the plaintiff’s lawyer in court papers.

The restaurant chain first tried to settle the case for $962.08 plus interest, court costs, and attorney’s fees, and later offered $1,732.50. The plaintiff turned both offers down.

In a separate case, employees who worked for a mechanical insulation company were told to arrive 10 minutes early for work every day, but weren’t paid for those 10 minutes. One of the employees is claiming he is owed about $1,500 by the company, and his lawyer wants to turn it into a class-action lawsuit representing other current and former employees of the company. The lawyer filed a friend-of-the-court brief in the P.F. Chang’s case.

In the mechanical insulation company case, according to court papers the plaintiff at one point got a voice mail message from the president of the company calling the request for back pay “extortion.”

“Just give me a call and let me know how much money you want because I don’t have time for this Mickey Mouse [expletive deleted]. Ah, so, give me a call back and let me know what it’s gonna take to buy you off. … Just give me a call back … and let me know that do re mi,” the company president said, according to the plaintiff’s lawyer’s friend-of-the-court brief.

The restaurant worker case is called Felice Gammella vs. P.F. Chang’s China Bistro Inc.; it was decided Friday, April 12.