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SHORT STAFFED AND OVERWHELMED

by Keith Barber

The NC Department of Labor’s Wage & Hour Bureau faces significant challenges in the coming year because of an everincreasing caseload, a high rate of turnover within the department and the possibility of staffing cuts cuts, agency administrator Jim Taylor said. According to its 2008 annual report, the agency’s call center received more than 103,000 calls last year, and answered more than 93,000.

One of the calls came from Lauren Campbell, a former server at Basil’s Trattoria in Kernersville. Campbell claims Scott Leard, the chef and owner of Basil’s, still owes her $535 in credit card tips and $170 in back wages. After being fired on Dec. 13, Campbell contacted the Wage & Hour Bureau to file a non-paymentcomplaint. Campbell said she also filed a complaint of wrongful termination with the Employment Discrimination Bureau of the NC Department of Labor. Campbell said an agency representative informed her that Leard contended he only owed her $180 in back wages. Campbell said she was told that if she accepted the $180 settlement, she could not pursue legal action against her former boss. Also, Campbell said she was told it could take six months for an investigator to be assigned to her case, and a year for her case to be closed. Campbell’s initial interaction with the agency left her feeling frustrated. Circumstances have changed in recent weeks. Campbell said an agency representative assigned to her case called her recently to say the investigation was underway. The agent told Campbell that she had spoken to Leard and requested his employee time records, and Leard had provided some of those records. Campbell said Leard then sent her a text message promising to mail a check for her back wages. Campbell said she has still not received payment. Dolores Quesenberry, a spokeswoman for the Department of Labor, said a number of wage complaints have been filed against Leard and Basil’s Trattoria, including two filed in the past month. Taylor said a wage payment complaint typically takes 45 to 60 days but the volume of cases has been going up steadily since 2006 and, at one point last year, four new agents were being trained by the department, which has led to significant delays in the resolution of wage disputes. “We’re slowly beginning to beat down the inventory again because we got some trainees that are now performing, but we have to look at what we can do,” Taylor said. Taylor said the agency has six field investigators working in the eastern part of the state, six investigators working in the western part of the state and six investigators assigned to the intake complaints unit at the Department of Labor headquarters in Raleigh. Eighteen agency investigators worked on more than 6,100 cases last year and closed all but 56 of those investigations, according to the bureau’s annual report. However, more than 10 percent of workers who registered complaints with the bureau in 2008 received no response at all, according to the agency’s year-end report. Taylor said 85 percent of the complaints the bureau received last year are classified as “employer promises,” which include wage payment complaints. After being briefed on Campbell’s case, Taylor said the agency might have classified her complaint as a wage payment issue rather than a minimum wage issue. “If she said my employer didn’t pay me my tips, it would’ve been filed as a minimum wage issue. A wage payment issue normally becomes a swearing match,” Taylor said. However, Campbell said she told the agency representative she first spoke with in December that Leard never paid her for her tips. In the case of a minimum wage claim, Taylor said the first step is to send the investigator to the business and demand to see employee time records. If the employer kept inadequate records, the investigator would then ask the employees for their documentation of hours worked. “If the person is still in business, we could reopen that investigation as a minimum wage investigation and we could go on site to look at records,” Taylor said. “If we determine there are minimum wage violations, it’s certainly a lot different than a wage payment issue. If there are no records at all, there would be a minimum wage and overtime issue — that’s not an employer promise; that’s a requirement of law.” However, the power of the bureau to force payment of back wages is limited, Taylor said. The agency cannot order the business to cease and desist operations until all employees are paid in full. The agency’s legal affairs division routinely sends out letters on legal counsel’s letterhead to employers in wage payment cases, Taylor said. Also, the agency can assess employers a civil money penalty of $250 per violation with a maximum of $1,000 per investigation. Lori Rucinski, another former Basil’s employee, said she kept meticulous records of the hours she worked after being advised by former colleagues to do so. Rucinski said she witnessed Leard’s accounting practices, which included employees writing their hours in a spiral notebook. Rucinski said neither she nor any of her colleagues ever filled out or signed NC Department of Revenue paperwork claiming the amount of tips they earned in a given week. Rucinski said she also never filled out Internal Revenue Service paperwork when she started working at Basil’s in December. Rucinski said Leard still owes her $650 in wages and tips. Rucinski said she planned on filing a claim with the Wage & Hour Bureau on Monday. Taylor said if Leard is unable to produce complete employee time records, the records kept by his employees like Rucinski would take precedence in the investigation. Another former Basil’s employee, Susan Christmas, filed a claim against Leard last month. Christmas, who was fired on Jan. 17, said she attempted to explain to the agency representative that it was a minimum wage issue, but the agent contended it was a wage payment claim. “They didn’t tell me what they were going to do about it or an estimated length of time,” Christmas said. “They just took my information and hung up the phone.” Christmas said she was dismayed that Leard could violate the minimum wage laws with seemingly no repercussions. “I don’t understand how they can’t make him pay us out of his profits every night,” she said. “When I was there, there would be a thousand dollars some days and some days up to two thousand dollars coming [into the business]. He brought in a good bit of money. I know that on some days I brought in eight hundred dollars in food profits because I kept up with my sales. Why can’t they garnish his profits?” Christmas said Leard still owes her $1,177, and she has received more than 80 text messages from her former boss since she and the entire Basil’s wait staff were fired on Jan. 17. Christmas said most of the text messages include Leard’s promises to pay her back wages, but in a recent message, Christmas said Leard claimed he was “flat busted” and was going to have to close the restaurant. Leard told YES! Weekly that Basil’s was still in business and Christmas’ claim was false. From 2007 to 2008, the number of investigations by the agency into wage and hour claims surged 23 percent, Taylor said. When the current session of the General Assembly began in January, there was a proposal to add five additional investigators to the agency. But that idea was quickly jettisoned in light of the $3.4 billion budget deficit the state currently faces, Taylor said. Two weeks ago, Gov. Beverly Perdue proposed cutting 1,400 state jobs in order to balance the budget. Taylor admits some of those job cuts could adversely impact the already strapped agency as investigators try to get their heads above water. “We’re going to continue to do what we’re doing now, the way we’re doing it now,” Taylor said. “When the budget battle ends and the story comes out, we’re going to have to huddle up as a department, as a bureau and say, ‘What can we do?’ Obviously, if there is a reduction in personnel, something’s got to give.”

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