Former Macon restaurant workers get back pay in wage theft case

For three years, he would wake up in a trailer off Eisenhower Parkway that he shared with 14 other co-workers. Three of them slept on mattresses in the kitchen.

Some men had bite marks from the bedbugs. Roaches scurried around the house, which was provided by their employer.

The man, who is now 35 years old, said he and his roommates would get dressed for work in the two-bathroom trailer designed for a family. The air conditioning was unpredictable and space heaters provided little warmth in winter. Sometimes there was no hot water because their employer-landlord hadn’t paid the bill.

All the men were Hispanic. Other trailers housed Chinese and female workers.

At 9:30 a.m., vans would load up all the workers and take them to their jobs at the New China Buffet on Eisenhower Parkway, just blocks away, returning them between 10:30 p.m. and midnight or later.

“We didn’t have a right to a break during the day,” said the worker who spoke to The Telegraph on the condition his name not be used for fear of retribution. “We would work six days a week and we only got one day to rest.

“You felt like you had to live there,” he said.

For most of his three years at the restaurant, 2006 to 2009, he said he was paid $1,500 a month no matter how many hours he worked.

In 2009, the U.S. Department of Labor’s Wage and Hour Division launched an investigation into the workers’ conditions. In February 2010, a lawsuit was filed against Yun Da Chen, owner of New China Buffet, when investigators say wages were improperly paid.

The business changed hands in 2009, though Chen still owns the building, according to property and tax records.

In April, shortly before the case was set to go to trial, Chen and the DOL settled the case, with Chen agreeing to pay 11 workers $225,000 in back wages and damages.

The DOL’s action is part of a crackdown on businesses nationally, particularly restaurants, that fail to pay employees the required minimum wage or overtime. The department stepped up enforcement about two years ago, adding 200 more agents to handle wage theft issues.

At the time of the investigation, New China Buffet employees started their workday at 10 a.m., six days a week. The employee interviewed had to have everything he was assigned to do ready for the buffet when the restaurant doors opened at 11 a.m.

At 10:40 a.m., he had 10 minutes to eat lunch and get back to work, he said through a Telegraph interpreter.

Court documents detail DOL’s case

Before the parties signed off on the consent judgment, the DOL filed a finding of facts document detailing the living and work conditions of New China Buffet employees, most of whom were Chinese or Hispanic. Chen disputed some of the findings. In addition to the substandard living conditions, the DOL claimed:

Yun Da Chen had been investigated in 2007 and 2008 by the Wage and Hour Division. The 2007 investigation involved a Chinese buffet restaurant in Tifton owned by Chen, who was found to be violating the minimum wage, overtime compensation and record keeping provisions of the law. The 2008 investigation was at a Birmingham, Ala. restaurant, where Chen was the general manager, and the same wage law violations were discovered there. Both issues were resolved without a lawsuit.

Most New China Buffet workers were provided to the restaurant by an employment agency that specializes in restaurants.

The worker interviewed by The Telegraph for this story said he paid $225 to an Atlanta agency which helped him get his job at New China Buffet.

When Chen was first contacted by the investigator, he denied employing any Hispanic workers. But the investigator returned a day later and observed Hispanics working in the kitchen. After being confronted, Chen fired all the Hispanics workers the next day. When warned by the investigator of penalties for interfering with the investigation, Chen brought back the Hispanic workers and made them available for interviews.

Prior to the investigation, Chen did not have employees fill out an application, provide documentation of residence or complete the Employment Eligibility Verification Form (I-9).

Each employee got one day off a week, but all worked Friday, Saturday and Sunday.

Chen reported to his accountant that Chinese employees worked 40 hours a week, but did not report any information about Hispanic workers.

All employees were paid in cash.

The employer provided housing for all employees, and meals were provided at the restaurant from the buffet.

At no time were workers completely relieved of duties during the day, even during the 10-20 minutes given to eat meals.

No records were kept of the actual hours worked each day or week for any employees. The investigation showed employees worked six days a week, 12 to 14 hours a day.

Employees were not paid minimum wage during the period investigated in 2007, 2008 or 2009. The minimum wage changed over the years and is currently $7.25 an hour for most workers covered under the Fair Labor Standards Act.

Based on the evidence collected during the investigation, back wages were due to 46 employees for unpaid minimum wage and overtime totaling $384,150.

Chen and his attorney, in court documents, disagreed with some of the findings, saying that workers received three meal breaks a day of at least 40 minutes each, employees were paid an hourly salary at or above minimum wage and the average working time for employees was about eight hours a day.

The trial would have been a long one, and would have included Chinese and Spanish interpreters, said attorney Frank Butler III, who represented Chen during the investigation. The court asked the parties to try to mediate it, “and it worked,” Butler said.

“Just because we consented, doesn’t mean we believe we were guilty,” he added.

In the judgment, New China Buffet owner Chen and his wife, Xiu Qing Chen, agreed to pay $111,594 to 11 workers for back wages, liquidated damages of $111,594 and interest of $1,812 for a total of $225,000. The money is to be paid in installments, and the first installment of $50,000 was made by the May 29 deadline, said Mike Wald, a DOL regional public affairs director. The Chens are responsible for making additional monthly payments of $7,300 for 23 months with a final payment of $7,100 on or by June 1, 2014.

All of the 11 workers to receive back pay are Hispanic, and they should expect to receive their first installment checks in a few weeks, Michael D’Aquino with the DOL, said in an e-mail last week.

“Settlements are always a compromise,” Butler said. “The consent judgment was the result of mediation that took place. The dollar figure was a mediated figure ... everything was based on a compromised figure that both sides had to agree to. In a mediated case, everybody gives up something.”

“We contend (the workers) were paid right,” he said.

Butler said he no longer represents Chen and he has no relationship with the current owner of New China Buffet, Wen Hai Yang. According to court documents, Yang was a former employee at the restaurant.

Efforts to locate Chen were unsuccessful. According to the Macon-Bibb County Board of Tax Assessors’ website, the Chens own a house on Aspen Drive in Macon, but the tax mailing address is in Duluth.

Macon case set a precedent for investigator

This case “will go down as one of the most difficult cases I have ever dealt with in my 14 years with the Wage and Hour Division,” investigator Ramon Delgado said on an official DOL blog, which is used to share information about work the department does.

“You might think that serious wage violations and deplorable work conditions only occur in sweat shops overseas,” Delgado said. “But, the reality is that this may also happen in your neighborhood restaurant. Customers of employers who violate the law aren’t always aware that the people serving them are being denied their rightfully earned wages. Those workers are often too afraid to speak up and too afraid to lose their jobs, their livelihoods and their ability to provide for their families if they make waves.

“Working in a restaurant can be tough -- there may be long hours, hard labor and low pay,” he said. “But it is even worse when an owner takes advantage of vulnerable employees by underpaying them.”

The amount each of the 11 former New China Buffet employees will receive for back wages, damages and interest from the judgment varies, but two workers will receive more than $43,000 each. Payments for other workers range from about $800 -- for an employee who worked at New China Buffet for 10 days -- to $25,000 each. Although some people worked at the restaurant earlier than February 2007, that was the earliest anyone could be reimbursed for back wages because of the statute of limitations. The latest was February 2009 when the business was sold -- which was the same month the investigation began.

Investigators didn’t consider the workers’ immigration statuses or whether they were legally able to work in the United States.

“Because it is U.S. Labor Department policy to protect honest employers and employees from those who may choose to exploit workers through unfair labor practices, it is Wage and Hour policy not to ask about immigration status,” said the DOL’s Wald. “No worker needs to fear that reporting a violation to Wage and Hour will affect their immigration status.”

During a seminar in Milledgeville in June, Delgado also made that point about undocumented workers.

“If they are working, they must get paid,” he said, speaking to a group of about 10 people who owned or managed restaurants or convenience stores. “Some think they are taking away American jobs. But they are doing jobs no one wants.”

Wage theft is a common problem

What happened at New China Buffet is not rare. Multiple cases have occurred in Georgia and around the country.

Wage theft is the practice of underpaying or not paying workers for their labor. Millions of workers are losing pay, mostly in low-income service jobs, such as in restaurants, agriculture, retail and construction.

“It continues to be a significant problem,” Wald said.

More than 200 agents have been added to the Wage and Hour Division during the past two years to help deal with the problem, he said.

“We have launched an enforcement initiative in the restaurant industry here in Georgia to protect the low-wage and vulnerable workers in this industry who are often denied the pay legally guaranteed to them by law,” Oliver Peebles III, an Atlanta area DOL administrator, said in an e-mail.

In Clayton County, a 2011 wage theft case involved Chueng Kong Holding Inc., doing business as United Food, where 41 workers worked more than 40 hours a week but were not paid overtime wages, according to court documents.

The consent judgment ordered the business owner to pay $311,905 in back wages to the 41 workers. All but four of the workers listed have Hispanic last names; the other four are Asian names.

The former worker at New China Buffet in Macon said there was a reason no Chinese workers were listed in the judgment. They were more afraid to say anything against their employer, he said.

“I talked to one Chinese (worker) and asked ‘why don’t you talk?’ He said ‘you might be sent back to Mexico, but in China it is all different. We are afraid they can hurt us in our country.’ ”

To contact writer Linda S. Morris, call 744-4223.

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