UPDATE: Black Bear Burritos to Pay $232,295 in Back Wages to 105 - WBOY.com: Clarksburg, Morgantown: News, Sports, Weather

UPDATE: Black Bear Burritos to Pay $232,295 in Back Wages to 105 Employees

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A United States Department of Labor investigation into Morgantown business Black Bear Burritos LLC has revealed minimum wage and overtime violations that will result in 105 workers receiving $232,295 in back wages from the restaurant.

When notified of the violations, the company agreed to pay all back wages and be compliant in the future, according to the DOL. Black Bear Burritos did not respond to 12 News following a request for comment regarding the violations, but posted a statement on its Facebook page, which reads in part:

"Prior to any communications with the department of labor, we split all tips taken in on any given day evenly amongst all trained employees, including managers, based on how many hours they worked on that day. We did this with the full knowledge and understanding of each and every employee that did and ever has worked for us in an attempt to create equality amongst our entire staff while keeping everyone working towards the same goal." (See below for full statement)

The U.S. Department of Labor Wage and Hour Division's Charleston Area Office investigation disclosed that Black Bear required servers to participate in an illegal tip sharing arrangement. Under the Fair Labor Standards Act, tips are property of employees who receive them although restaurant operators can benefit by claiming a credit based on the tips toward their obligation to pay employees minimum wage. An employer may not take an employee's tips for an invalid tip pool and if an employee's tips combined with the employer's direct wages do not equal minimum wage and the employer must make up the difference during the pay period, according to the DOL.

The investigation also revealed that salaried managers were unlawfully paid using money from the tip pool. Black Bear based overtime premium pay on employees cash wages instead of the regular rate, $7.25 an hour, minus the tip credit, plus the cash wage.

"Failure to pay legally required minimum wage and overtime poses a serious problem to workers who, in many cases, are already struggling to get by, and also undercuts those employers that choose to obey the law and pay their workers properly," said John DuMont, director of the division's Pittsburgh District Office in a news release. "Tipped workers rely on customers for the bulk of their income and are especially vulnerable to hardships caused by improper or illegal tip sharing arrangements, which deprive them of their hard-earned pay."

Some former Black Bear Burritos employees took to social media Thursday to dispute that they were deprived "of their hard-earned pay."

One such person, who did not wish to be identified, said "In fact, everyone loved it, myself included! It was great motivation for my kitchen staff, and encouraged cooperation and better service... No-one had any idea that it was illegal, Matt (Showalter) and Jason (Coffman) most of all.

"Black Bear Burritos includes this is its statement: "We did not pocket a penny of gratuity; we just distributed them incorrectly by including kitchen staff and general managers in that distribution."

The former employee added, "This is a wonderful Morgantown business, run by two honest and hard-working family men from WV."


Black Bear Burritos LLC's statement from its Facebook page said:

As many of you have read, Black Bear Burritos learned a very expensive lesson. We would like to take this opportunity to make clear the fact that, yes, we made a mistake. When the Department of Labor approached us and made us aware of our mistake, we made the necessary changes to our policies and followed all instructions provided to us by the Department of Labor regarding back pay and the necessary steps to correct the mistakes that we made. It was our desire, as we did in March of 2013, to correct the mistakes we made in the past and comply with all laws and regulations regarding this matter moving forward.

We would, however, like to point out a few details of the mistake we made. The mistake we made involves the sharing of tips with each and every trained employee, both front of house and back of house. Prior to any communications with the Department of Labor, we split all tips taken in on any given day evenly amongst ALL trained employees, including managers, based on how many hours they worked on that day. We did this with the full knowledge and understanding of each and every employee that did and ever has worked for us in an attempt to create equality amongst our entire staff while keeping everyone working towards the same goal. Our policies were outlined in great detail in our Employee Handbook. We did not pocket a penny of gratuity; we just distributed them incorrectly by including kitchen staff and general managers in that distribution. The illegal tip pool that is mentioned in the Department of Labor’s findings refers to this system that we created and used. When a tip pool is deemed illegal, it voids the entire tip pool, resulting in the minimum wage violation that occurred.

We hope that Black Bear Burritos and Black Bear Evansdale will continue to be seen by you, our customers and supporters, in the same light that we were before this situation occurred. We have in the past and will continue to try to run a business that is successful while also acting responsibly and transparently in the eyes of our employees and our customers. Black Bear has always tried to make a difference in the lives of their employees, in the lives of their customers and in the lives of those living in the community in which we do business. We will learn from this mistake and continue to operate with the same mission statement and ideology that we always have.