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NJ Restaurant to Pay $768,548 for Wage, Visa Program Violations

New Jersey

After an investigation by the U.S. Department of Labor's Wage and Hour Division, Cramark Inc. – doing business as The Chicken or The Egg restaurant in Beach Haven, New Jersey - will pay $768,548 in back wages, liquidated damages, and penalties for violating the Fair Labor Standards Act (FLSA) and the labor provisions of the H-2B temporary visa program.

Officials say Cramark Inc. will pay 23 employees $359,077 in FLSA back wages, an equal amount in liquidated damages, plus $7,792 in H-2B back wages to two employees. The Department also assessed a civil penalty of $42,602 against the employer for the willful nature of the wage violations.

Department of Labor's Wage and Hour Division investigators determined the employer violated FLSA overtime requirements when it failed to pay workers time-and-one-half when they worked more than 40 hours in a workweek. Instead, the employer always recorded fewer than 40 hours on the payroll each week, regardless of the actual number of hours worked, and paid for overtime hours in cash, unrecorded. This failure to record all the hours employees worked or the cash payments violated FLSA recordkeeping requirements.

The investigation also found that the employer violated requirements of the H-2B visa program by failing to furnish each H-2B employee, on or before each payday, with a written statement accurately listing their total earnings each workweek in the pay period. Additionally, three H-2B employees performed work as bussers, despite the employer's official application for these temporary workers receiving approval only for the H-2B employees to work in food preparation. The employer paid these employees less than the prevailing wage rates required for H-2B workers in Ocean County, New Jersey.

"The U.S. Department of Labor ensures the labor standards of the FLSA and H-2B visa program are followed to protect workers," said Wage and Hour District Director Charlene Rachor, in Lawrenceville, New Jersey. "Our efforts ensure that employers understand and abide by the provisions of the program to safeguard American employees against displacement while protecting foreign workers from being paid less than the wage they were promised."

In addition to paying the back wages, liquidated damages, and penalties, Cramark Inc. agrees to future compliance with the FLSA and H-2B provisions.

Before the U.S. Citizenship and Immigration Services can approve an employer's petition for H-2B visa workers, an employer must file an application with the Department stating that there are not sufficient U.S. employees who are able, willing, qualified, and available. The application must also affirm that the employment of non-immigrant, temporary workers will not adversely affect the wages and working conditions of similarly employed persons in the U.S.

The FLSA requires that covered, non-exempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates for hours worked beyond 40 per week. Employees must also maintain accurate time and payroll records. Employers who discover overtime or minimum wage violations may self-report and resolve those violations without litigation through the PAID program.