Justin Mackie was working in the kitchen as a fry cook at an oceanfront beach grill in South Carolina when he started having trouble breathing, according to court filings.
Concerned for his health in the midst of the coronavirus pandemic, Mackie said he left mid-shift and was told leaving without permission was the equivalent of quitting.
Now he’s suing.
A complaint filed Thursday in South Carolina federal court alleges Coconut Joe’s in Isle of Palms near Charleston violated the Families First Coronavirus Response Act — which bars employers from firing workers who miss work for reasons related to COVID-19. The restaurant is also accused of shortchanging employees on wages.
Representatives from Coconut Joe’s did not immediately respond to a request for comment from McClatchy News.
“My client is hurt over being terminated, especially under these circumstances,” Marybeth Mullaney, Mackie’s lawyer, told McClatchy in an email. “He had his job for over four years and he considered his employer a friend. He tried several times to get his job back and when his employer refused, he contacted me.”
Mackie worked mostly as a server for Coconut Joe’s from 2016 to 2020, according to the complaint.
The restaurant closed in March under S.C. Gov. Henry McMaster’s order but reopened for takeout services in early May, according to its Facebook page.
Shortly before that, Mackie’s boss at the restaurant informed him of their reopening plans and asked he come back to work as a maintenance worker for $18 an hour, his attorney said in the complaint.
“In her email she wrote ‘If you choose NOT to work maintenance and remain on unemployment until we fully reopen, we cannot guarantee a place on our team at that point,’” the lawsuit states.
Mackie returned but was never paid for that week’s worth of work, according to the complaint.
Coconut Joe’s reopened its dining room on May 4 with limited outdoor seating and strict social distancing standards in place, including enhanced cleaning and tables separated by at least 6 feet, according to the restaurant’s Facebook page. Mackie’s attorney said he worked as a fry cook when it reopened.
On May 12, when he reporting having difficultly breathing and sought to leave, the restaurant manager told him “to get back in the kitchen or he could find another job,” the lawsuit states.
Mackie ultimately left, telling his direct supervisor he was worried he had COVID-19 but was not quitting, his attorney said.
The manager later texted him saying, “Since you left without permission, we will take that as you quitting your job here at Coconut Joe’s,” the lawsuit states.
According to the complaint, Mackie went to the doctor the next day and was told his difficulty breathing was due to a panic attack, not the coronavirus. He reportedly made multiple attempts over the next several weeks to get his job back by calling and texting his former managers and the owner, to no avail.
Congress passed the Families First Coronavirus Relief Act in March.
Under the law — which mandates paid sick leave for certain circumstances related to COVID-19 — employers can’t fire, discipline, discriminate or retaliate against employees who miss work under the FFCRA, Law and the Workplace reported.
“The FFCRA provides a remedy (for Mackie),” Mullaney, his attorney, told McClatchy. “Under the FFCRA, it is unlawful for any employer to discharge an employee who is unable to work because of experiencing symptoms of COVID-19 and seeking a medical diagnosis.”
Mackie also alleges Coconut Joe’s underpaid its workers in violation of the Fair Labor Standards Act.
According to the complaint, the restaurant utilized what’s known as a tip credit under the FLSA, which allows employers to put an employee’s tips toward their pay.
But Coconut Joe’s reportedly required its employees to pool their tips at the end of the night to include back-of-the-house workers, such as dishwashers and food preparers, who don’t traditionally receive tips.
Mackie’s attorney said the restaurant had “enforced an illegal tip pool.”
The lawsuit seeks to certify a class of employees who were subject to the tip pool at Coconut Joe’s as well as compensatory damages and unpaid wages. It also seeks a declaration that Mackie was unlawfully fired, as well as payment for emotional damages and attorney’s fees.
Source: THE STATE