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Judge Nixes ‘No Rehire’ Provision In NY BBQ Chain FLSA Deal

May 21

As it appeared in Law360.

By Max Kutner

A New York-based barbecue restaurant chain’s settlement agreement with a former server can’t bar the worker from working or trying to work for the chain again, a federal judge ruled Friday, saying a no-rehire provision was “highly restrictive” and went against federal labor law.

In an order, U.S. District Judge Edgardo Ramos ordered former server Brenda Flores and Mighty Quinn’s Barbeque entities and owners to either agree to the court’s striking of the no rehire provision or submit an alternative settlement agreement or status update. Flores then filed a consent letter saying the parties had agreed to the striking of the provision.

Judge Ramos had held up approval of the $15,000 settlement deal, saying the stipulation that Flores not work at Mighty Quinn’s or even apply to work there again went against the purpose of the Fair Labor Standards Act.

“While the settlement is otherwise fair and reasonable, the court cannot approve the agreement’s no rehire provision,” Judge Ramos said.

“Such no rehire provisions are ‘highly restrictive’ and ‘in strong tension with the remedial purposes of the FLSA,'” the judge added, quoting case law.

The provision would have made Flores “ineligible pursuant to this agreement to hold any positions with Mighty Quinn’s or any Mighty Quinn’s entities now or in the future,” and it stipulated that she “shall not apply in the future for employment with Mighty Quinn’s.”

If the chain even “inadvertently” hired Flores in the future, it “may terminate plaintiff’s employment immediately,” the provision said. The proposed settlement agreement said the provision was necessary due to the “circumstances unique to” Flores, including her “irreconcilable differences with defendants.”

Judge Ramos was willing to approve other aspects of the deal, including the payout, which the judge said was “fair and reasonable, as the parties agree that there are litigation risks for plaintiff.”

The deal included almost $4,900 in attorney fees and $400 in costs, amounts the judge said were appropriate.

Flores had filed the proposed class and collective action in November. She had worked at the restaurant’s location in Manhattan’s West Village as a server and counter worker from June 2019 to October 2020, according to the complaint.

She said the chain violated the FLSA and New York Labor Law by failing to pay minimum wage and letting managers keep some of her tips. She also accused the chain of wage statement and wage notice violations and of retaliating against her for complaining about wage practices.

In an answer to the complaint, the company had denied the allegations.

The settlement is set to be between the chain and only Flores, even though she had brought the suit as a proposed class and collective action.

Mighty Quinn’s has 10 locations in New York and New Jersey and an international location in Dubai, according to the chain’s website.

Lee Nolan Jacobs, who represents the chain, declined to comment other than to point out that the parties had agreed to the striking of the provision.

Counsel for Flores did not immediately respond to a request for comment.

A Mighty Quinn’s spokesperson did not immediately respond to a request for comment.

Flores is represented by William Michael Brown and Angela Saeyun Kwon of Brown Kwon & Lam LLP.

Mighty Quinn’s is represented by Lee Nolan Jacobs and Hamutal Lieberman of Helbraun Levey.

The case is Brenda Flores v. Greenwich BBQ LLC et al., case number 1:20-cv-09514, in U.S. District Court for the Southern District of New York.

–Editing by Neil Cohen.

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