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Perez v. EL Azteca Restaurants Inc

United States District Court, E.D. Wisconsin, Green Bay Division

June 28, 2016

THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
EL AZTECA RESTAURANTS, INC., EL AZTECA OF APPLETON, INC., EL AZTECA OF NEENAH, INC., EL AZTECA OF KIMBERLY, INC., EL MAYA MEXICAN RESTAURANT, INC. f/k/a EL AZTECA RESTAURANT OF DE PERE, INC., Wisconsin corporations, and MARCO MONTALVO, FE MONTALVO, and SERGIO JIMENEZ, individuals, Defendants.

          DAVE VAN LIESHOUT, AMANDA KEITEL Attorneys for Defendants.

          BARBARA A. GOLDBERG MARK HENRY ISHU Attorneys for Plaintiff.

          Magistrate Judge Nancy Joseph.

          CONSENT JUDGMENT

          WILLIAM C. GRIESBACH United States District Court Judge.

         Plaintiff, THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, having filed his complaint against EL AZTECA RESTAURANTS, INC., EL AZTECA OF APPLETON, INC., EL AZTECA OF NEENAH, INC., EL AZTECA OF KIMBERLY, INC., EL MAYA MEXICAN RESTAURANT, INC. f/k/a EL AZTECA RESTAURANT OF DE PERE, INC., MARCO MONTALVO, FE MONTALVO, AND SERGIO JIMENEZ, (collectively "Defendants"), having appeared by counsel, having answered, and having been duly advised in the premises, agree to the entry of this Consent Judgment without contest under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq., (hereinafter the "Act" or "FLSA").

         Defendants hereby admit and the Court finds that Corporate Defendants EL AZTECA RESTAURANTS, INC., EL AZTECA OF APPLETON, INC., EL AZTECA OF NEENAH, INC., EL AZTECA OF KIMBERLY, INC., and EL MAYA MEXICAN RESTAURANT, INC. f/k/a EL AZTECA RESTAURANT OF DE PERE, INC., are and at all times hereinafter mentioned, were an enterprise or comprised an enterprise engaged in commerce within the meaning of sections 3(r) and 3(s)(1)(A) of the Act. 29 U.S.C. §§ 203(r), 203(s)(1)(A).

         Defendants hereby admit and the Court finds that Defendants MARCO MONTALVO, FE MONTALVO, and SERGIO JIMENEZ are individual "employers" under section 3(d) of the Act.

         NOW, therefore, upon motion for the attorneys for Plaintiff and Defendants, and for cause shown, JUDGMENT IS HEREBY ENTERED against Defendants pursuant to sections 16(c) and 17 of the Act as follows.

         IT IS HEREBY ORDERED AND ADJUDGED, pursuant to section 17 of the Act, that the Defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them be and hereby are, permanently enjoined and restrained from violating the provisions of the Act, in any of the following manners.

         I

         Defendants shall not, contrary to sections 6 and 15(a)(2) of the Act, pay any of their employees who in any workweek are engaged in commerce or in the production of goods for commerce or who are employed in an enterprise engaged in commerce or in the production of goods for commerce, within the meaning of the Act, wages at a rate less than $7.25 per hour (or at a rate less than such other applicable minimum rate as may hereinafter be established by amendment to the Act).

         II

         Defendants shall not, contrary to sections 7 and 15(a)(2) of the Act, employ any of their employees who in any workweek are engaged in commerce or the production of goods for commerce, or who are employed in an enterprise engaged in commerce or in the production of goods for commerce, within the meaning of the Act, for workweeks longer than 40 hours, unless such employee receives compensation for his employment in excess of 40 hours at a rate not less than one and one-half times the regular rates at which he is employed. The "regular rate" includes all sums paid for all hours worked and such sums divided by all hours worked.

         III

         Defendants shall not fail to make, keep and preserve records of their employees and of the wages, hours, and other conditions and practices of employment maintained by them as prescribed by the regulations issued, and from time to time amended, pursuant to section 11(c) of the Act and found in 29 CFR Part 516. This includes, but is not limited to, maintaining records of all hours worked by each employee in each workday and each workweek, and records of compensation paid to each employee in each workweek, whether payment is made by a payroll check, personal check, cash or a combination thereof. The records maintained by Defendants shall also include, but not be limited to, the full name and last-known mailing address of all employees, the daily work start and stop times of each employee, and the specific method of payment made to each employee.

         IV

         A. Defendants shall use a computer system and/or time clock that records hours worked and require all employees to clock-in and clock-out. In addition, Defendants shall keep all records required by section 11(c) of the Act and found in 29 CFR Part 516 for at least three years.

         B. Defendants shall comply with all of the requirements of section 3(m) of the Act and 29 C.F.R. § 531.59, if they intend to take a tip credit. Defendants shall require that an accurate record of tips received is reported by those individuals who meet the definition of a tipped employee per section 203(t) of the Act and that those records are maintained by the employer for at least three years. Defendants' shall notify its employees of the application of a tip credit and shall keep all tips received by them. Should eligible employees participate in a valid tip pool, Defendants understand that tips may only be pooled amongst employees who customarily and regularly receive tips. The Defendants further understand that these tips may not be retained by the Defendants for any other purpose. The Defendants understand that the failure to accurately record the amount of tips reported by each employee and or failure to adhere to the tip pooling provisions will nullify any entitlement and claim to any tip credit available under Section 203(m) of the Act.

         C. Defendants shall provide each employee on each pay date with a pay stub. Each pay stub will maintain and identify the specific dates of the pay period, total hours worked and paid, rate of pay, overtime hours paid, overtime rate of pay, gross amounts paid and all deductions taken by Defendants. All pay and deductions must be shown whether they were made in the form of cash or check.

         D. Defendants shall conduct quarterly reviews of the time and payroll records at all locations owned, operated or managed in whole in part by the Defendants, for a two-year period beginning from the date of the execution of this Consent Judgment. If the audit discloses that an employee was not properly paid for all hours worked, including all overtime hours worked, the Defendants agree to take immediate steps to correct the deficiency, including but not limited to the payment of back wages and implementation of steps to prevent similar violations in the future.

         E. Defendants agree and represent their intention to ensure every manager at each location Defendants' own, operate, or manage, in whole or in part, will be provided with periodic training to comply with the Act, including but not limited to:

(1) How to assure payment of minimum wage under Section 206 of the Act and the applicable regulations, including prohibiting any costs or deductions except those required by law or permitted under Section 213(m) of the Act;
(2) How to comply with the overtime requirements under Section 207 of the Act and 29 CFR Part 778;
(3) How to determine hours worked under the Fair Labor Standards Act as outlined in 29 CFR Part 785.
(4) How to comply with the record keeping provisions under Section 211 of the Act and 29 CFR Part 516, with specific focus on Parts 516.1 through 516.9 and 516.28 (tipped employees); and

         F. Defendants shall provide its current employees and every new employee with the following ...


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