Who says wage and hour law is boring?  Not us.  We came across two wage and hour stories this year that are too awesome not to share.

Auto-Repair Shop Owner Pays Employee’s Final Wages in Pennies, Is Sued by DOL

As the New York Times reported back in January, the U.S. Department of Labor filed a retaliation lawsuit against the owner of a Peachtree City, Georgia auto-repair shop for dumping a mound of 91,500 “oil-soaked” pennies in a former employee’s driveway as payment of his final wages.  The employee called the DOL after his resignation in January 2021 to complain that the shop had stiffed him on his final paycheck of $915.  The shop owner initially told the agency he would not pay the wages, but hours later delivered the mountain of pennies (with a dry weight of approximately 572 lbs.) to the employee’s driveway, together with a copy of his final pay stub and a note featuring an expletive.  The DOL’s lawsuit—filed in the Northern District of Georgia—also charged the shop owner with a host of other overtime and record keeping violations.

In fairness to the shop owner, the FLSA allows—and, indeed, requirespayment of wages “in cash or negotiable instrument payable at par,” an issue discussed in our recent blog on cryptocurrency in payroll.  (Same with Georgia law, which allows payment in “lawful money of the United States.”)  But the issue here is the FLSA’s anti-retaliation provision, which makes it unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA].”

The shop owner—who is representing himself in the lawsuit—filed an answer in May noting that under Title 31 of the U.S. Code, “United States coins … are legal tender for all debts, public charges, taxes, and dues.”  As such, he argues, “paying an employee in United States currency, no matter the denomination …, cannot be considered a retaliatory … action.”  We’ll see what Chief Judge Timothy C. Batten, Sr. does with this one.  Earlier this month, he signed a scheduling order and the case will now head into the discovery phase.

Chick-fil-A Franchisee Offers to Pay Drive-Through Workers in Chicken, Not Money

As the Washington Post reported this week, a Henderson, North Carolina Chick-fil-A recently posted an ad seeking “volunteers” to work its drive-through operation.  The catch?  It’s not a paying job in the money sense—successful applicants instead would “earn” five free entrées per one-hour shift worked.  In response to community backlash, the restaurant—owned by a franchisee—noted that the opportunity was intended for people who “think it’s a good fit for them.”  (For its part, a spokesperson for Chick-fil-A stated that “it was a program at an individually owned restaurant” and “[t]his was not endorsed by Chick-fil-A, Inc.”)

While the FLSA allows individuals to volunteer time to religious, charitable, civic, humanitarian, or similar non-profit organizations without contemplation or receipt of compensation, it’s a non-starter in the private sector.  Absent an exemption, drive-through workers would be employees entitled to the minimum wage and overtime protections under federal and state law.  And as noted above, the FLSA requires wages to be paid in cash or negotiable instrument payable at par, not in chicken sandwiches (or even deluxe or spicy chicken sandwiches).  That said, Section 3(m) of the FLSA allows an employer, under certain circumstances, to count the reasonable cost of a meal provided to an employee as a credit toward the minimum wage.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments.

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Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.