Many Five Guys employees fall under the non-exempt category of employment and MUST be paid overtime wages according to the guidelines laid out in the Fair Labor Standard Act (FLSA). The FLSA sets the overtime rate for non-exempt employees at time and one-half their standard rate of pay for any time worked over 40 hours in a single week.
The FLSA regulations do not apply to “administrative” or “professional” employees due to exemptions preventing specific categories of employees from receiving overtime pay.
Exemptions are not based entirely on one’s job title, however. Whether or not an employee should receive overtime pay is calculated by the hours worked, the rate of pay, the job duties, and even the job description.
It’s always a good idea to speak with an attorney with experience in overtime pay laws due to issues with additional state laws governing overtime pay. These laws sometimes overlap federal laws and further complicate or contradict the FLSA.
What is Five Guys?
Founded in 1986 in Arlington Virginia, Five Guys is an American fast casual restaurant chain focused on hamburgers, hot dogs, and French fries. Headquartered in Lorton, as of 2016 Five Guys had over 1,500 locations worldwide, with nearly 1,500 currently under development. Five Guys owes its origins to the Murrell couple who, together with their three sons, form the eponymous ‘Five Guys’. Since then, utilizing a franchising ownership structure, Five Guys has demonstrated meteoric growth –between 2010 to 2011, the company was the fastest growing fast food chain in the United States with a 32.8% sales increase. Moreover, the company boasts an annual revenue of nearly $1 billion, thanks in part to its rapid expansion and the expertise of over 15,000 employees. Consumers and franchisors nationwide may recognize its iconic red branding and trade dress, sporting the tagline “Always Fresh. Never Frozen.” As Five Guys continues to gain traction in the domestic fast casual market, one can be certain that they will remain squarely within the public eye in the years to come.
Numerous non-exempt Five Guys employees may be required to start before their shifts or even work after their shifts finish off the clock. It is not uncommon for employees to work double shifts as well. Because of this, if many Five Guys employees exceed 40 working hours in a single week, they should receive overtime pay.
Employers have been known to illegally misclassify positions to avoid paying overtime. For instance, Five Guys shift or location managers may have been labeled “managers” with the goal of marking them exempt from overtime pay. However, these employees are in fact non-exempt because of the nature of their job duties.
Often companies label employees as managers even though they do not fill vital roles for the business. The FLSA dictates that “managers” must have specific abilities, for instance, hiring or firing employees, making schedules, or completing other tasks that are essential to the running of the business. Typically these employees do not perform these duties and are instead only labeled as managers for employers to save money by avoiding paying overtime.
Another unlawful practice that the Five Guys may perform is having employees clock in before a shift or asking them to stay after a shift without compensating them. This practice of manipulating time cards to keep payroll costs down is a violation of the FLSA and can result in a lawsuit.
How Can a FLSA Lawyer Help You
An experienced lawyer can analyze your case and see if you are entitled to lost overtime wages from Five Guys by evaluating how state and federal laws apply to your situation.
Does Five Guys Have to Pay Overtime Wages to Employees?
For the most part, Five Guys must pay overtime to non-exempt employees who work more than 40 hours in a week as long as they are not excluded by the FLSA. However, these exemptions become more complicated by some states that have additional laws governing them.
If you feel like you have been denied overtime wages, then it is in your best interest to consult an attorney with FLSA experience and knowledge of state overtime laws.
Are There Other Overtime Pay Lawsuits Involving AFive Guys?
Here are a few examples from the many previous lawsuits that have been issued against other employers for failing to pay overtime wages:
Justia lists Five Guys as a defendant in at least 4 lawsuits since 2011
New Jersey Five Guys locations have been sued by former employees for overtime violations under the Fair Labor Standards Act and the New Jersey State Wage and Hour Law (NJWHL). The lawsuit alleges that workers were only being compensated for forty hours per week, without being compensated for the hours worked off the clock over forty in a workweek in violation of the FLSA and NJWHL.
If you feel as though Five Guys or any another employer has denied you overtime wages, you could have a case. Please get in touch with the Lemberg Law legal team. Complete our form for a FREE case evaluation, or call 844-685-9200 NOW. Lemberg Law will evaluate your case as see if you are eligible to receive lost overtime wages as a non-exempt employee.
About the Author:
Sergei Lemberg is an attorney focusing on consumer law, class actions related to automotive issues, and personal injury litigation. With nearly two decades of experience, his areas of practice include Lemon Law (vehicle defects), Debt Collection Harassment, TCPA (illegal robocalls and texts), Fair Credit Reporting Act, Overtime claims, Personal Injury cases, and Class Actions.
He has consistently been recognized as the nation's "most active consumer attorney." In 2020, Mr. Lemberg represented Noah Duguid before the United States Supreme Court in the landmark case Duguid v. Facebook. He is also the author of "Defanging Debt Collectors," a guide that empowers consumers to fight back against debt collectors and prevail, as well as "Lemon Law 101: The Laws That Lemon Dealers Don't Want You to Know."
