The Second Circuit Court of Appeals has determined that Starbucks Corp. did not violate federal labor law by adopting a dress code which limits the number of pro-union buttons its employees can wear on their uniforms. NLRB v. Starbucks Corp., Nos. 10-3511, 10-3783 (2d Cir., decided May 10, 2012). The National Labor Relations Board (NLRB) had ruled that multiple pro-union buttons, at one-inch in diameter, “did not seriously harm Starbucks’s legitimate interest in employee image because ‘the Company not only countenanced but encouraged employees to wear multiple buttons as part of that image.’ These other buttons, the Board found, were not immediately recognizable by customers as company-sponsored, and the pro-union pins at issue were ‘no more conspicuous than the panoply of other buttons employees displayed.’” Reversing this part of NLRB’s determination, the appeals court said that it had gone too far. “Starbucks is clearly entitled to oblige its employees to wear…
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An Australian court has reportedly awarded $8 million to the family of a girl who allegedly ate a Salmonella-contaminated chicken product from a KFC restaurant and became critically ill with organ system failures, septic shock, severe brain injury, and spastic quadriplegia. Samaan v. Kentucky Fried Chicken Pty Ltd., No. 2006/20457 (NSW Sup. Ct., decided April 4, 2012). The court exhaustively explores inconsistencies in the testimony and evidence concerning the source of the chicken that allegedly caused the injury, but concludes that the KFC “Twister” product “was the only common meal to the affected family members (and no others) and it was consumed within the incubation period for Salmonella poisoning.” According to the court, many of the inconsistencies could be attributed to language and translation issues given that the parents and one child were born in Sudan and were native Arabic speakers. Other inconsistencies could be attributed to concerns over the…
A National Labor Relations Board (NLRB) administrative law judge has determined that the owner of 10 Jimmy John’s fast-food restaurants in the Minneapolis-St. Paul area violated federal law during a labor dispute by, among other matters, posting a pro-union employee’s phone number on its Facebook® page and suggesting that members text the employee to “let him know how they feel.” Miklin Enters., Inc. d/b/a Jimmy John’s and IWW, Nos. 18-CA-19707, -19727, -19760 (N.L.R.B., Div. of Judges, decided April 20, 2012). According to the judge, the assistant manager’s posts encouraged other employees and managers to “harass” the employee “for activities that were protected, as well as some that were arguably unprotected.” A co-owner’s subsequent Facebook® posts disparaging the employee further “condoned such harassment.” The employer terminated the pro-union employee and several others for posting flyers on restaurant bulletin boards and in areas near the restaurants suggesting that public health could be…
The insurance carriers for Rubio’s Restaurant have filed a motion for summary judgment in a dispute with the company that insured the restaurant’s fish supplier, following the settlement of claims pursued by a restaurant patron who alleged that he has permanent and severe neurological injuries from exposure to a toxin from the mahi mahi in a Rubio’s fish burrito. Fireman’s Fund Ins. Co. v. Nationwide Mut. Fire Ins. Co., No. 11-0114 (S.D. Cal., motion filed April 9, 2012). While the patron and his wife reportedly sought $7 million in damages, the settlement amount remains undisclosed. According to the plaintiffs, the defendant must reimburse them for the costs of defending the restaurant and the amounts they contributed to the settlement on the restaurant’s behalf. The restaurant was evidently an additional insured under the defendant’s policy with the fish supplier, and the plaintiffs argue that a duty to defend exists when there…
Chipotle Mexican Grill, Inc., which operates 1,250 “fast-casual” restaurants throughout the United States, has sued The Kroger Co. in Colorado federal court, alleging that the grocery store chain has infringed the CHIPOTLE® trademark by using the descriptor on its spicy fried chicken take-out products. Chipotle Mexican Grill, Inc. v. The Kroger Co, 12-930 (D. Colo., filed April 5, 2012). According to the complaint, Chipotle has invested “tens of millions of dollars” “to create and maintain the goodwill of its CHIPOTLE® national brand,” which evidently includes a commitment to sourcing ingredients “in the most ethical and sustainable manner possible.” In addition to claiming monetary damages, Chipotle argues that Kroger’s use of the word “Chipotle” on its chicken entrée packaging has caused “irreparable harm to the value and goodwill of Plaintiff’s CHIPOTLE® Marks, as well as irreparable harm to Chipotle’s business, goodwill and reputation.” “Kroger’s use of CHIPOTLE… can only be explained by…
A California superior court has dismissed with prejudice putative class claims filed against McDonald’s Corp. seeking to enjoin the company from advertising Happy Meals® to children featuring toys. Parham v. McDonald’s Corp., No. 10-506178 (Cal. Super. Ct., San Francisco Cty., decided April 4, 2012). Additional information about the case appears in Issues 375, 391 and 420 of this Update. While the court did not explain why it sustained the company’s demurrers to the plaintiff’s first, second and third causes of action, it did so without giving the plaintiff leave to amend her complaint. According to the Center for Science in the Public Interest (CSPI), which was representing the plaintiff, consideration is being given to filing an appeal. In its memorandum of law in support of its demurrers, the company argued that the plaintiff failed to state a claim for relief under the state’s Unfair Competition Law, Consumers Legal Remedies Act…
Two California men who allegedly worked as cooks at a Riverside County Olive Garden have filed a putative class action as private attorneys general under the California Labor Code, claiming that they performed off-the-clock work, were not provided meal or rest breaks as required by law or paid overtime, and had the cost of shoes deducted from their paychecks. Romo v. GMRI, Inc., No. RIC1203891 (Cal. Super. Ct., Riverside Cty., filed March 19, 2012). They also claim that their employer failed to pay them promptly as required by law when they left their jobs. They seek to represent all non-exempt or hourly paid Olive Garden employees in the state. According to the complaint, the off-the-clock and overtime work the plaintiffs performed was necessitated due to the volume of work and frequent understaffing. Claiming unpaid overtime, unpaid minimum wages, non-compliant wage statements, unlawful deductions, and wages not timely paid upon termination,…
Restaurateurs Mario Batali and Joseph Bastianich have apparently agreed to settle for $5.25 million wage-related claims in a class action filed by waitstaff at their New York City restaurants including Babbo, Bar Jamon, Casa Mono, Del Posto, Esca, Lupa, Otto, and Tarry Lodge. Capsolas v. Pasta Resources Inc., No. 10-5595 (S.D.N.Y., motion for preliminary approval of settlement filed March 5, 2012). Additional information about the suit appears in Issue 361 of this Update. If approved, the settlement would cover attorney’s fees (one-third of the total) and costs, class members’ awards, service payments to the named plaintiffs, and the claim administrator’s fees. The class, consisting of captains, servers, waiters, bussers, runners, back waiters, bartenders, and/or barbacks, will receive a proportional share of the settlement fund “based on the number of hours they worked, the Restaurant at which they worked, the percentage of total tips received during their employment, and whether they opted…
A Mississippi appeals court has determined that neither McDonald’s Corp. nor one of its franchisees could be held liable for injuries allegedly resulting from a spatula-wielding cashier’s response to a dispute with a customer. Parmenter v. J&B Enters., Inc. No. 2010-CA-01251 (Miss. Ct. App., decided February 21, 2012). Affirming the trial court’s grant of summary judgment and directed verdict in favor of the defendants, the court determined that McDonald’s did not exercise the requisite level of control over the employee to be liable under the doctrine of respondeat superior and that the employee was not acting within the scope of her employment when she engaged in the altercation, thus rendering the franchisee not liable under the same doctrine. The plaintiff also brought claims of negligent hiring and training, and the appeals court found insufficient evidence to support either claim. The court further ruled that the trial court properly disqualified the plaintiff’s…
McDonald’s Corp. has reportedly responded to a San Francisco ban on giving away toys with its Happy Meals® by allowing parents to purchase the toys with a 10-cent charitable contribution when they buy a Happy Meal®. While the toy purchase is purportedly a separate transaction that complies with the new ordinance, it will still require a Happy Meal® purchase because toys cannot not be obtained by those who do not purchase the meal for their children. Previously, the toys could be purchased without buying a Happy Meal®. According to the company, the donations will help build a new Ronald McDonald House where parents of sick children at a University of California, San Francisco, hospital currently under construction will be able to stay. At least one public health advocate, evidently unhappy with the company’s action, was quoted as saying that McDonald’s “has developed a response to the law that allows them…
