Wendy’s Maintenance Technicians Not Considered Restaurant Workers


A putative class action has been filed on behalf of all service technicians for the Wendy’s restaurant system, seeking unpaid wages pursuant to the Massachusetts overtime law (G.L.c. 151, §1A). Wendy’s sought to dismiss the claim asserting that the statute’s exemption that disqualifies restaurant workers from earning overtime applied to the service technicians. Wendy’s Motion to Dismiss was denied.

One of the exemptions to overtime pay enumerated in the statute refers to those who work “in a restaurant.” The phrase, “in a restaurant,” is not statutorily defined and there is no present case law that offers an interpretation. For the restaurant exemption to apply, a particular job must “plainly and unmistakably” fall within the “restaurant” exemption. Wendy’s argues that the Plaintiff worked “in a restaurant” and therefore is not entitled to overtime pay.

However, the class representative, Billy Parham, Jr. was a maintenance technician and not necessarily employed in any particular Wendy’s restaurant. He did not report to an on-site restaurant manager, but instead to a regional maintenance manager and a National Director of Facilities. Mr. Parham’s job duties included traveling to various Wendy’s restaurants, performing maintenance and repair work, both inside and outside, taking inventory of truck stock and purchasing parts from suppliers, among other things.

Wendy’s asserts that he did fall into the Section 1A exemption and for its purposes worked “in a restaurant.” They point to an opinion letter by the Massachusetts Department of Labor Standards, which examined another exemption listed in Section 1A: employees who are employed “in a hotel, motel, motel court or like establishment.”

This letter was drafted in response to an inquiry as to whether banquet servers employed by a hotel were exempt from overtime pay pursuant to Section 1A. The letter states: “We interpret the state hotel exemption to include all workers who work in some aspect of hotel operations, including banquet services, within the physical confines of a hotel property. . . . We decline to extend coverage of the state hotel exemption to such a situation where the services are arguably no longer performed “in” the hotel.”

To that end, while Mr. Parham did work in “some aspect” of restaurant operations, it is not enough to bring him under the exemption. If it was concluded that he fell under the exception, then every employee of Wendy’s would be exempt from earning overtime pay, even those who clearly do not work “in a restaurant,” for example, those employees who worked in the corporate office would not be eligible for over time pay. Furthermore, Mr. Parham went from restaurant to restaurant and was not “within the physical confines” of a particular restaurant.

The Court concluded that Wendy’s has not met this burden of showing that Mr. Parham’s job plainly and unmistakably fell within the “restaurant” exemption of Section 1A and its Motion to Dismiss was denied.

Parham Jr. et al. v. The Wendy’s Company et al. U.S.D.C., District of Massachusetts, No.; 14-cv-14367-ADB (March 17, 2015)

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