Ex-workers sue Middletown diner for not paying minimum wage, overtime

MIDDLETOWN — WHAT THE LAW SAYS

Currently, Ohio’s minimum wage is $8.10 an hour. The federal minimum wage is $7.25 an hour, but the state rate prevails here. If employees are tipped, employers can pay them as little as $4.05, but then the employer must show that the employees received at least the remaining $4.05 per hour.

Three former employees of Buck’s 24-Hour Diner have sued the eatery and its owner for failure to pay them minimum wage and overtime, as well as not deducting their state and federal payroll taxes, Medicaid, Social Security payments and other customary withholdings.

The lawyer representing the employees said such issues are more common nationally than most people realize.

According to the lawsuit, filed in September in Butler County Common Pleas Court, Bucks’s, at 1212 Central Ave. and owner Timothy Buchanan handled employee scheduling, pay rates, tip payments, tax calculations and employee-classifications for employees Shawna Hamilton, Thomas Morningstar and Nicole Gomia, all of Middletown, during the three years they worked there.

The employees’ primary duties for Buck’s were taking food orders, preparing and serving food, delivering food, and cleaning fixtures and dishes. Hamilton and Gomia were paid “only $4.00 for all hours they worked,” while Morningstar was paid “$6.00 for all the hours he worked, but the (restaurant) did not create or maintain any records of his hours worked.”

During the time the three worked for Buck’s, Ohio minimum wage was $8, or the current rate of $8.10 per hour.

Buchanan did not respond to a phone call left Friday at the restaurant. Company attorney John Herr said he had not yet seen the lawsuit and therefore was unable to comment on it.

Middletown lawyer James Langendorf, representing the three employees, said rather than state or federal officials taking action against such companies, employees often have to file lawsuits on their own.

“Both at the state and the federal level, the departments of labor and the wage-and-hour divisions are overworked and underpaid, like most state agencies,” Langendorf said. “They typically will take reports of this kind of conduct and then they’ll tell the people who are suffering from it, ‘Contact an attorney.’”

“There’s just too much of it going on for the government agencies to keep up with it,” Langendorf said. “In federal court, there were over 8,000 unpaid-overtime cases filed last year nationwide. That’s just federal cases. This is a state case. So there are many, many more that get filed at the state level. But it is the most commonly filed type of lawsuit filed these days under federal employment statutes.”

Federal law makes provisions for people facing such issues so they can more easily hire lawyers to represent them. Under the 1938 federal Fair Labor Standards Act and Ohio law, when an employee goes to court seeking back pay, “the employer has to pay the employees’ attorneys fees. It’s only fair — they should have been paying them wages,” Langendorf said. “You can’t put that kind of weight (of having to pay legal fees) on someone who’s making minimum wage, or in this case, far less.”

Underpaid, often unaware

People who are being paid minimum wage, or less, often aren’t aware of their rights to receive more money, Langendorf said.

“It’s a group that says, ‘I’ll just take this so I can get by,’” he said. “They’re vulnerable for a lot of reasons. And that question comes up: ‘Why would you keep working (there)?’ Very often, it’s because I’m afraid I wouldn’t get work anywhere else. And here in Middletown, that’s not an uncommon thing to say.”

There’s a new trend in employment law, he said: The federal government is trying to clamp down on companies that are improperly labeling their employees as outside contractors, when in fact they are full employees.

“They’ll say, ‘You’re going to create your own LLC and then you’re going to provide services to me, and you’re going to be a contractor, and I will pay you a 1099 and I won’t take any taxes out,” he said. “The fact, these people very often are employees. They’re under the total control of the employer, they don’t have any other job, there’s no other source of income, they don’t pay insurance, they don’t have a profit-and-loss statement, they don’t keep their own books. They just go to work every day.”

Such trends show problems with the economy right now, he said.

“What appears to be sometimes a strong or functioning economy isn’t, when you look underneath,” he said. “Sometimes it’s an economy or jobs that are built on basically a foundation of sand. It’s fake — the jobs are not real jobs. They are underpaid. They are mispaid, they are exploitative jobs.”