Retaliation Is Not Just Rude, It’s Illegal
Posted on 21-Feb-08 by The Timekeeper
In a particularly egregious case in New York City, The New York Times reports Judge Ray Green with the National Labor Relations Board has ruled Simon Nget, owner of the Saigon Grill restaurants on the Upper West Side and in Greenwich Village in NYC, must reinstate 28 deliverymen he apparently illegally fired last March.
The deliverymen, all immigrants from China, allege they were paid only $120 for a 75-hour work week. Do the math: this translates to only $1.60 a hour. While you’re pondering that, please note NY state law requires tipped workers be paid a minimum of $4.85 an hour before tips — and I think they would be entitled to time-and-a-half for any hours over 40 in a work week. That’s a pretty big discrepancy.
In addition, in a federal lawsuit filed last spring, the deliverymen asserted the restaurant fined them $200 (!) if a customer complained of a late delivery and $50 if they shut the restaurant’s glass doors too loudly on their way to make a delivery. (Editor’s note: A $200 fine for each customer complaint? When they were only paid $120 per shift to start with? I try to be sympathetic to the concerns of small business owners, bu that’s just plain wrong, no matter how you look at it.)
According to the judge’s decision, back in March of last year two of the deliverymen asked Mr. Nget to raise the group’s pay and threatened to sue if he didn’t. He offered the workers an additional $5 per shift to settle the dispute. (Note this would still leave their pay substantially below the state-mandated minimum) Not surprisingly, they rejected his offer and decided to proceed with the lawsuit.
Within three days, Mr. Nget had fired all 28 deliverymen.
Since that time, the fired workers and their supporters from the community have picketed the two restaurants. While some customers have continued to patronize the two highly-rated restaurants, others have refused to cross the picket lines to express solidarity with the workers.
Now, you may already know (and if you didn’t before, you do now): federal law prohibits employers from retaliating against workers for “engaging in concerted activity for mutual aid and protection.” Many people are aware employers can’t take action against employees who want to join a union. But this law doesn’t just apply to union-busting; it covers other “retaliatory actions,” as well. Judge Green found Mr. Nget had fired the deliverymen “because they signed a document authorizing a wage and hour lawsuit.” That would be illegal retaliation under federal law.
The judge ordered the restaurant to pay the workers for all the wages they hadn’t received since their dismissal, and ordered them reinstated within 14 days. I assume — although the article in the Times doesn’t say — the back wages would be computed at the actual legal minimum, not the $120-per-75-hour-shift the restaurant had been paying. (Side note: the order to reinstate the workers could be suspended by an appeal.)
S. Michael Weisberg, a lawyer for Saigon Grill, was quoted as saying the owner does plan to appeal, commenting, “I think the decision’s unfair.” My personal opinion: Obeying the law is part and parcel of running a responsible, ethical business. Trying to take advantage of immigrant workers by paying them less than one-quarter of the legal minimum and imposing draconian fines for the slightest offenses — that’s “unfair.”
Yes, it’s acceptable to be aggressive in holding down costs. It’s probably a good idea to hold your employees accountable for their behavior while they’re on the job. And it’s natural to feel a little angry when confronted by your employees. But you still have to obey the law. And no matter what, retaliation is just plain bad business.
UPDATE (8-Nov-2008):
According to this article the employees have now won at least $4.6 million, with potentially more to come when the judge rules on their retaliation claims.
U.S. magistrate judge Michael Dolinger in Manhattan determined that Saigon Grill’s management violated the Fair Labor Standards Act of 1938 and New York State labor law. The court awarded the 36 plaintiffs $4.6 million for wage-and-hour violations. Beyond that, an additional damages award on the retaliation claims will be determined at a later proceeding.
S. Michael Weisberg, the aforementioned counsel for the defendants, reportedly did not return a call seeking comment.
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