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Pizzella v. Cilantros Mexican Bar & Grill, LLC

United States District Court, D. Nebraska

September 13, 2019

PATRICK PIZZELLA,[1] ACTING SECRETARY OF LABOR UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
v.
CILANTROS MEXICAN BAR & GRILL, LLC, MANAGUA, LLC, and ALEGRIA LLC, Defendants.

          David o. Alegria, Attorney for Defendants

          Kate S. O'Scannlain Solicitor of labor, Christine Z. Ilerri Regional Solicitor, Evert H. Van Wijk Associate Regional Solicitor, Dana M. Hague, Attorneys for Secretary

          CONSENT JUDGMENT

          SUSAN M. BAZIS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Patrick Pizzella, Acting Secretary of Labor, United States Department of Labor (“the Secretary”) having filed his Amended Complaint, and Cilantros Mexican Bar & Grill, LLC, Managua, LLC, and Alegria LLC (collectively “Defendants”), having agreed to the entry of this Judgment without contest;

         It is, therefore, upon motion of counsel for the Secretary, and for good cause shown:

         ORDERED, ADJUDGED, and DECREED that Defendants are permanently enjoined and restrained from violating the provisions of 29 U.S.C. §§ 215(a)(2) and 215(a)(5) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. § 201 et seq., hereinafter the “FLSA”), including in any of the following manners:

         1. Defendants shall not, contrary to 29 U.S.C. §§ 206 and 215(a)(2), pay to their employees engaged in commerce or in the production of goods for commerce, or employed in their enterprise engaged in commerce or in the production of goods for commerce, wages at rates less than those which are now, or which in the future may become, applicable under 29 U.S.C. § 206, unless an exception under the United States Code should apply to that particular employee or employment situation.

         2. Defendants shall not, contrary to 29 U.S.C. §§ 207 and 215(a)(2), employ any of its employees in commerce or in the production of goods for commerce, or in its enterprise engaged in commerce or in the production of goods for commerce, for workweeks longer than 40 hours without compensating such employee for his or her employment in excess of 40 hours per workweek at a rate not less than one and one-half times the regular rate at which he or she is employed.

         3. Defendants shall not, contrary to sections 29 U.S.C. §§ 211(c) and 215(a)(5), fail to make, keep and preserve adequate and accurate records of their employees, and of the wages, hours and other conditions and practices of employment maintained by it as prescribed by the regulations issued, and from time to time amended, pursuant to section 211(c) of the FLSA and 29 C.F.R. § 516. Defendants shall make such records available at all reasonable times to representatives of the Secretary.

         4. Defendants shall not categorize employees as salaried pursuant to § 213(a)(1) and the implementing regulations at 29 C.F.R. Part 541, and therefore exempt from FLSA overtime and minimum wage requirements, unless the employee(s) meet each requirement for the exemption. When employees are appropriately categorized as exempt pursuant to § 213(a)(1) and 29 C.F.R. Part 541, Defendants shall not switch employees to hourly pay and then back to salaried for certain days or weeks for any reason, including but not limited to, vacation or hours worked. Defendants are not, however, precluded from changing an employee from salaried to hourly due to a non-temporary reason such as a change in position or non-temporary change in hours worked.

         It is further ORDERED, ADJUDGED and DECREED:

         5. The Secretary shall recover from Defendants the sum of $ 19, 247.55 representing alleged unpaid minimum wages and overtime compensation for employees identified in Exhibit A, attached hereto.

         6. Defendants shall pay the $ 19, 247.55 on or before November 1, 2019 by mailing a certified or cashier's check made payable to “Wage and Hour - Labor, ” to the United States Department of Labor, Wage and Hour Division, P.O. Box 2638, Chicago, Illinois 60690-2638. Alternatively, Defendants may pay online by ACH transfer, credit card, debit card, or digital wallet by going to https://pay.gov/public/form/start/77734516 or by going to www.pay.gov and searching “WHD BW Payment - MW Region.” Along with the ...


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