objections it has to plaintiffs' counsel's adequacy following discovery.
Finally, defendant argues that plaintiffs' motion for expedited notice should be denied because plaintiffs have failed to show urgency, failed to follow the Court's rules in presenting their motion as an order to show cause, and failed to cooperate in discovery. The Court is unpersuaded by these arguments. The Court notes that counsel to both sides have been criticizing each other's conduct from the outset of this proceeding. The Court will not allow this constant back-and-forth of complaints to delay the sending of class notice, particularly were it is evident that a group of "similarly situated" potential plaintiffs exist. Furthermore, although plaintiffs' motion was presented as an order to show cause, the Court has given both sides ample opportunity to submit briefs and other materials on the motion, and has allowed oral argument on several occasions.
A. Class Definition and the Proposed Notice
Having concluded that court-authorized notice is appropriate, the Court must now decide upon the appropriate class definition. Plaintiffs ask the Court to define the class to include "Present and Former General and/or Restaurant Managers and/or Co-Managers of Sbarro, Inc. (or persons holding equivalent positions, however titled) Who Were Employed at Sbarro Within the Past Three (3) Years." Defendant, on the other hand, argues that the class should be defined as employees who (a) were employed by Sbarro as General Manager or Co-Manager within the past three years, and (b) were classified as salaried exempt employees, and (c) worked overtime, and (d) had money withheld from their bi-monthly paychecks to reimburse Sbarro for cash and inventory shortages.
The Court rejects defendant's proposed requirement in subsection (d) because, as discussed supra, potential plaintiffs need not show they suffered actual deductions in order to claim they were "subject to" improper deductions. However, the Court agrees with defendant that, as prerequisites to joining this action, plaintiffs must have been classified by defendant as exempt employees and they must have worked overtime. These prerequisites are appropriate because the relief plaintiffs seek is past overtime pay denied to them on the basis of a claimed exemption. No persons will be entitled to damages in this action unless, during the relevant period, they worked overtime and were classified as exempt. With these modifications, the Court accepts plaintiffs' class definition and approves the class notice in the form attached to this opinion.
Dated: New York, New York
October 22, 1997
AMENDED PROPOSED NOTICE
TO: Present and Former General Managers and/or Co-Managers of Sbarro, Inc. (or persons holding equivalent salaried positions, however titled) Who Were Employed at Sbarro Within the Past Three (3) Years and worked overtime during that period, and were classified as exempt from overtime pay
RE: Fair Labor Standards Act Lawsuit Filed Against Sbarro, Inc.
The purpose of this Notice is to inform you of the existence of a collective action lawsuit in which you potentially are "similarly situated" to the named Plaintiffs, to advise you of how your rights may be affected by this suit, and to instruct you on the procedure for participating in this suit.
2. DESCRIPTION OF THE LAWSUIT.
On June 18, 1997, Kenneth Hoffmann and Gloria Curtis brought this lawsuit against Defendant Sbarro, Inc. on behalf of themselves and all other past and present salaried General Managers and/or Co-Managers, in the United States District Court for the Southern District of New York, alleging that they are owed overtime pay under the Fair Labor Standards Act. This lawsuit alleges that Sbarro, Inc. has violated the "salary basis test" which must be met in order for Sbarro, Inc. to avoid owing overtime pay to its managerial employees because Sbarro, Inc: (1) reduced managerial salaries for restaurant cash shortages and/or casualty losses by virtue of a policy set forth in a Sbarro, Inc. form entitled "Agreement to Reimburse Losses" requiring out-of-pocket payments or other reductions in pay; and (2) otherwise made managerial employees' pay subject to reduction because of variations in the quality or quantity of work performed pursuant to its "Cash Control Policy."
Plaintiffs allege that they are entitled to recover overtime pay and/or minimum wages from Sbarro, Inc., because Sbarro, Inc. inappropriately classified them as "exempt" from overtime pay. Plaintiffs also seek an additional equal amount as liquidated damages and/or prejudgment interest, attorneys' fees and costs. This lawsuit is currently in the early pretrial stage. Defendant Sbarro, Inc. has denied Plaintiffs' allegations that it engaged in these practices or that it is liable to Plaintiffs for violations of the Fair Labor Standards Act.
3. COMPOSITION OF THE CLASS.
The named-Plaintiffs seek to sue on behalf of themselves and also on behalf of other employees with whom they are similarly situated. Specifically, the Plaintiffs seek to sue on behalf of any and all employees who, at any time within three (3) years preceding June 18, 1997:
(a) were (or still are) employed at a Sbarro, Inc. restaurant that was (or is) owned and operated by Sbarro, Inc., as either a General Manager and/or Co-Manager (or equivalent salaried position, however titled); and
(b) worked overtime at Sbarro during this period, and
(c) and were classified as exempt from overtime pay, and
(c) were "subject to" a policy which allegedly violated the salary basis test as described in Paragraph 2. The term "subject to" means that an employee could have been the object of an illegal practice and/or policy, even if he or she was not actually the object of the illegal practice and/or policy. For example, this would include an employee whose salary "could have" been illegally reduced pursuant to an illegal policy and/or practice but whose salary was not actually reduced.
4. YOUR RIGHT TO PARTICIPATE IN THIS SUIT.
If you fit the definition above, you may join this suit (that is, you may "opt in") by mailing the "Consent to Become Party Plaintiff" form to Plaintiffs' counsel at the following address:
M. Reid Estes, Jr., Esquire