This case is brought by three Servers who are working for or worked for Buffets, Inc. As tipped employees, the Servers are paid less than $4.00 per hour. The Plaintiffs allege that Buffets, Inc. has a policy of requiring Servers to perform non tip-producing work for which they should be paid at least the full minimum wage ($7.25 per hour under federal law and $7.85 under Ohio state law). They claim that Buffets, Inc. drives down its labor costs by requiring Servers to do a host of non-tip producing work, including washing dishes, cleaning floors, washing walls and furniture, emptying trash, preparing food, cleaning storage areas and light fixtures, blinds and picture frames, and stocking food service stations and that these tasks comprise more than 20% of Servers work. In addition, they claim that Buffets, Inc. requires Servers to work for no pay at all by requiring them to clock-in and out at pre-scheduled times regardless of when they actually begin or end work. This case seeks to compel Buffets, Inc. to pay the Plaintiffs and a class of similarly situated employees at least the minimum wage for their non tip-producing work for the past three years, an equal amount of liquidated damages, interest, and the costs and attorneys’ fees incurred in bringing this litigation. Click here to read the complaint..
This case was moved to the District of South Carolina (Greenville) and was assigned to the Honorable J. Michelle Childs.
Getman Sweeney is working with the Law Firm of David A. Young, LLC in representing the Plaintiffs in this case. Please also see their website regarding this case, Buffets-Overtime.com.
Case Update — Posted May 4, 2018
Class notice was issued on February 17th, 2017, through the Bankruptcy Court for the Western District of Texas, and over 1,600 people joined.
In April of 2017, Getman, Sweeney & Dunn filed a “Proof of Claim” for each opt-in plaintiff who joined the action, including amounts for unsecured claims (for work performed between 7/18/12 and 9/8/15); priority claims (work between 9/9/15 and 3/6/16); and administrative claims (work after 3/7/16).
The court then approved a process by which the Defendant sent “Confirmation of Loss” questionnaires to all opt-ins in order to further evaluate their claims. These were mailed in late October 2017 with an original deadline for completion of November 6, 2017. The deadline was extended until February 8, 2018, at Getman, Sweeney & Dunn’s request.
On April 2, 2018, the Court issued an order dismissing the priority and administrative claims of claimants whose Confirmation of Loss questionnaires were not received by February 8, 2018. On May 2, 2018 the Court dismissed the unsecured claims of that group. The Court ordered the litigation to continue on two tracks, litigation and settlement. On the settlement track, the parties will work with Court-appointed mediators in June and July in attempt to settle the claims. On the litigation track, the parties will prepare for trial of the claims. The next step on the trial track may include our seeking additional information from some claimants.
The next hearing in the matter is scheduled for May 22, 2018.
If you change your contact information, please email us your new information so that we can ensure you are kept up-to-date on any significant developments in the case.
Claims Filed in Bankruptcy Court, Motion to Issue Notice
Shortly after class notice was approved by the court (March 2016), Defendant Buffets, LLC filed for bankruptcy. The result is that the claims in this case become part of the bankruptcy and are subject to the bankruptcy process. Buffets is currently going through that process which will determine how claims in this case will be resolved.
We have filed claims in the bankruptcy action for current Opt-In Plaintiffs (those people who have affirmatively joined the case by signing a consent to sue form) who have claims within the FLSA statute of limitations and have have moved the Bankruptcy Court to issue notice to the national Fair Labor Standards Act class as ordered by the South Carolina Court. We are awaiting a decision from the Bankruptcy Court.
Case is Stayed Pending Bankruptcy
On March 1st, 2016, Judge Michelle Childs issued a decision (Dkt 157) approving notice to be sent to Servers informing them of their right to join this case. Typically, a letter would be mailed to all eligible servers explaining the case and how to join, and providing for a 60-day period for those people to join, after which both parties would submit a proposed scheduling order to the court for approval with a suggested timeline for the next phases of the case.
However, Defendant Buffets, LLC filed a petition for bankruptcy on March 7, 2016. The law provides for an automatic stay for any pending litigation when a bankruptcy petition is filed (11 U.S. Code § 362). Unless claims are excepted from the stay, they are stayed (put on hold) until the bankruptcy and restructuring are completed.
We will post further updates as the situation develops.
Collective Action Certified!
On June 25th, 2015, the Court certified a collective action and ordered that notice of the opportunity to join this case to be sent to:
All persons who have worked for Buffets, Inc., also known as Ovation Brands, as servers between July 18, 2012, and the date of final judgment in this matter who worked as tipped employees earning a sub-minimum, tip-credit wage and (1) performed non-tip-producing duties totaling 20 percent or more of their time worked for which they were not paid the standard, non-tip-credit minimum wage and/or (2) performed work duties off-the-clock for which they were not paid.
Click here to read the order. The parties have 30 days to agree to the content of the notice to be mailed to the class.
If you have any questions, call us at (845) 255-9370.
CASE UPDATE: Motion to Narrow the Scope of the FLSA Class
On March 18th, 2015, plaintiffs filed a Motion to Narrow the Scope of the FLSA Class. The narrowed class would include Servers who worked at any of the locations that were managed by the same Area Directors who supervised locations that the opt-in plaintiffs worked in. If the Court approves the scope, all those Servers would be eligible to receive notice of the lawsuit and of their opportunity to join it. Plaintiffs made the motion to narrow the scope of the class to avoid the risk that a judgment for a nationwide class might drive Buffets into a third bankruptcy.
We will continue to post updates as developments in the case occur.
CASE UPDATE: Briefing and Hearing on Motion for Collective Action
Although notice has not yet been issued to the class, as of November 24, 2014, 74 additional servers from 13 different states have opted into the action—77 total, including the original named plaintiffs who brought the case.
On May 8th, 2014, plaintiffs submitted their Motion for collective action to the court, with a request for notice of the suit to go out to all servers who worked for the defendants within the statute of limitations for the claims under the federal law.
On May 27th, 2014 defendants made a motion to stay the case, asking for discovery prior to the court considering plaintiffs’ motion, which the court granted on June 27th, 2014. The case was stayed for 90 days while plaintiffs and defendants took depositions and exchanged documents.
After the stay ended, plaintiffs and defendants completed the briefing of the motion to send notice to servers. Defendants opposed Plaintiffs’ motion for collective action and Plaintiffs replied on November 17th, 2014. Now that the motion has been fully briefed, the court will hear arguments from both sides on this issue on December 15th, 2014 in South Carolina.
SERVERS CONTINUE TO JOIN
As of March 4th, 2014, 62 current and former Servers from Buffets, Inc. restaurants from 14 different states have joined this case to bring their claims for back pay. If you currently work for or worked in a Buffets, Inc. restaurant (including Old Country Buffet, Ryan’s, HomeTown Buffet, Fire Mountain, or Country Buffet) within the past 3 years as a Server and spent more than 20% of your work time doing non tip-producing work but were not paid the full minimum wage, you can join this action to recover back wages and liquidated damages.
THE CASE MOVES TO SOUTH CAROLINA
Due to various factors, this case is now before the U.S. District Court in South Carolina, Greenville Division. The claims and the Plaintiffs remain the same, only the location has changed. Buffets, Inc., which is now operating under the name “Ovation Brands,” has asked the South Carolina Court to dismiss the claims against it arguing that they have no merit. In response, the Plaintiffs have argued to the Court that the case should go forward. The argument is fully submitted and the Parties are waiting for the Court’s ruling. Click here to see Buffets Inc.’s motion and Plaintiffs’ Response.
More than 55 current and former employees have joined the case to bring their claims for back pay. If you currently work for or worked for Buffets, Inc., or any of its subsidiaries (including Old Country Buffet, Ryan’s, HomeTown Buffet, Fire Mountain, or Country Buffet) within the past 3 years as a Server and spent more than 20% of your work time doing non tip-producing work but were not paid the full minimum wage, you can join this action to recover back wages and liquidated damages.
FREQUENTLY ASKED QUESTIONS
Answers to Common Questions:
Which employees can be part of this lawsuit?
All persons who have worked for Buffets, Inc. (including Old Country Buffet, Ryan’s, HomeTown Buffet, Fire Mountain, or Country Buffet) as a Server and spent more than 20% of their work time doing non tip-producing work but were not paid the full minimum wage.
What work locations are covered by this lawsuit?
The claims cover Buffets, Inc. Servers anywhere in the country.
What claims are covered in this case?
The lawsuit at present covers claims for overtime pay under the federal Fair Labor Standards Act (“FLSA”) and under the Ohio Minimum Fair Wage Standards Act. The specific violations claimed are that Buffets, Inc. did not pay their Servers the minimum wages owed.
What damages are sought?
Damages sought under the FLSA include back overtime pay, an equal amount of liquidated damages, attorneys’ fees, and any costs of litigating the case. Damages for the Ohio wage-and-hour law claim include back overtime pay, interest, and fees and costs.
What is the difference between the FLSA and Ohio Minimum Fair Wage Standards Act claims?
Both claims are based on the same facts – Buffets, Inc.’s failure to pay minimum wages as required under the law – and many of the available damages are the same under both laws. The primary difference in the claims is that the FLSA provides for back overtime pay and an equal amount of liquidated damages, while the Ohio Minimum Fair Wage Standards Act provides for three times the back wages owed. The FLSA also allows claims for overtime wages going back two years (or three years if the employer acted willfully) from when someone affirmatively joins the case by filing a Consent to Sue. The Ohio Minimum Fair Wage Standards Act allows recovery for back wages going back three years. You must send us a signed Consent to Sue to bring FLSA claims in this action.
Under the FLSA, you are entitled to make claims for the period extending back two years (three years if the employer acted willfully) from the date your Consent to Sue Form is filed in Court. This two (or three) year period is called the “statute of limitation.”
Under the Ohio Minimum Fair Wage Standards Act, the statute of limitation is three years.
How do I join the case?
To bring claims for back wages and an equal amount of liquidated damages, you must affirmatively join the case by filing a Consent to Sue. To join, you need to print the Consent to Sue form, complete the information, sign and date it and then fax, scan and email or mail it to our office.
Do I have to pay to join the case?
No. The attorneys are handling this case on a contingent basis and will be paid only when we win through a settlement or final judgment. Under both the FLSA and Ohio Minimum Fair Wage Standards Act, when plaintiffs win an overtime case, defendants must pay the plaintiffs’ costs and attorneys’ fees.
Can I wait to file my Consent to Sue form?
You are not part of the case until your Consent to Sue Form is returned to the plaintiffs’ attorneys and then filed with the Court. If you delay in filing the Consent to Sue, part or all of your claims may be barred by the “statute of limitation.” Once a Notice is authorized by the Court, you must generally return the Consent to Sue form within the terms of the notice or the Court may not allow you to join this case.
Can Buffets, Inc. fire me or take action against me for joining the case?
It is illegal for a company to retaliate against an employee for joining an overtime lawsuit. If any employee suffered retaliation, Buffets, Inc. would be liable for at least double the injury caused to the employee, and possibly additional damages. Notify us immediately if you think any retaliation has occurred. Retaliation is rare in overtime cases, because an employer can suffer such serious penalties.