Brooklyn Marriott management learns the meaning of “willful” contract violations

NYHTC — July 08, 2010

In May, the union caught Brooklyn Marriott management stealing from employees. The hotel had been paying the wrong uniform laundering allowance, the wrong vacation pay rate, the wrong sick pay rate, and the wrong extra room attendant pay rate. In addition, the hotel assigned the work of laid-off cafeteria attendants to other employees.

The union demanded the hotel pay the employees full back pay and the 15% penalty for committing willful contract violations (Article 26, Paragraph B of the Industry-Wide Agreement). Brooklyn Marriott management tried to argue the violations were not "willful." They claimed they had honestly believed they were paying employees what the contract required.

This is an interesting case because it illustrates a common misconception many managers, members, and even union delegates have regarding what the term "willful contract violation" means and when the hotel owes the 15% penalty.

Suppose, management honestly believes an employee is a barback and pays him the contractual barback rate of $23.91 per hour, but the union proves, based on his work duties, that he had been misclassified by management and is actually a bartender under the union contract and therefore should have been receiving $25.20 an hour.

Management may have honestly believed that it had classified him properly as a barback and did not deliberately violate the contract. However, while the contract violation may not have been deliberate, it was nevertheless "willful." That's because management was aware that it was paying the employee the barback rate of pay, and that rate of pay turned out to be wrong, contractually. In other words, management cannot claim ignorance of the contract as an excuse to escape the 15% penalty for willful violations.

As the union's General Counsel Rich Maroko explained, "As long as management knew what it was paying and that turns out to be incorrect, then the violation was a willful one." He added, "If management was able to prove that the improper pay was the result of a clerical or computer error, then they would be able to claim the violation was not willful."

Union staff, delegates, and members confronted the Brooklyn Marriott's General Manager, Sam Ibrahim, in an emergency meeting. After being caught sneaking out the office back door, the GM had little choice but to sit down with the union. Within 24 hours Ibrahim agreed to pay the penalty. Management has paid out $158,127.45 in back-pay, including $20,491.07 in penalties.