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May 15, 1998

KUMAR REALITE, et al., Plaintiffs, against ARK RESTAURANTS CORP., et al., Defendants.

The opinion of the court was delivered by: SOTOMAYOR


 In this collective action brought pursuant to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq., and New York and New Jersey state labor laws, the Court has before it what it deems a motion for reconsideration of its earlier ruling authorizing class notice to be sent to potential plaintiffs. For the reasons discussed below, the Court affirms its earlier ruling and approves the class definition proposed by plaintiffs for notice purposes.


 The thirty-seven named plaintiffs in this action are current or former hourly paid, non-managerial employees of fifteen restaurants owned and/or managed by defendant Ark Restaurants Corp. ("Ark"). All fifteen restaurants in question (hereafter, "the 15 Ark Restaurants") are located in the New York City metropolitan area: 14 are located in Manhattan, one is located in New Jersey. Also individually named defendants in this action, the 15 Ark Restaurants are not theme restaurants. They bear different names and feature different menus and atmospheres. Plaintiffs have collectively held a variety of job positions at the restaurants, including waiter, porter, dishwasher, cook, backwaiter, bartender, runner, pizza maker, busboy, and security guard. Many of the plaintiffs have worked at several of these positions during the course of their employment with Ark. Many plaintiffs also have worked at more than one of the 15 Ark Restaurants. Twenty-four additional plaintiffs have opted into this lawsuit since it was filed.

 Plaintiffs allege in their First Amended Complaint (the "Complaint") that defendants engaged in a widespread and multi-faceted scheme to avoid paying minimum wages and overtime pay to non-managerial employees, as required by the FLSA. It is undisputed that plaintiffs are all non-exempt employees covered by the FLSA. *fn1" As part of this scheme, the Complaint alleges that defendants paid their hourly employees a "shift rate" or "weekly rate" regardless of the number of hours actually worked, failed to pay employees overtime for hours worked over 40 per week, required employees to work "off the clock" with no compensation, failed to use time clocks or sign-in sheets, failed to keep adequate records, improperly required service employees to share their tips with non-service employees, failed to explain how the tip credit worked, failed to reimburse employees for uniform purchases and maintenance expenses, and improperly denied employees meal breaks or vacation benefits.

 Plaintiffs concede that all of the above violations may not have occurred at each of the 15 Ark Restaurants, and that offending compensation practices may have varied somewhat among the restaurants. Nevertheless, plaintiffs allege that the basic scheme -- to avoid paying overtime and minimum wages -- was undertaken at all 15 Ark Restaurants with the knowledge and approval of the corporate parent, Ark, and moreover, that Ark controlled the employment and compensation practices at each of the 15 Ark Restaurants. In that regard, the Complaint alleges that all or some of Ark's officers and directors are the sole or principal officers of the 15 Ark Restaurants, that Ark's corporate officers frequently sign payroll checks for employees at the 15 restaurants, and that following the filing of this lawsuit, Ark's CEO personally addressed employees of three of the 15 Ark Restaurants regarding some of the corporate overtime and payroll practices challenged in this action. Finally, the Complaint, which seeks both injunctive and monetary relief, alleges that some plaintiffs have been subject to retaliatory practices by defendants since the filing of this lawsuit.

 On January 16, 1998, this Court ruled during a status conference that plaintiffs were entitled under the FLSA to send out notice of the action to potential plaintiffs who are "similarly situated" to them. See 29 U.S.C. § 216(b) (permitting actions for FLSA violations to be maintained "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated"). However, the Court did not at that time approve any proposed form of class notice. Rather, the Court instructed the parties to try first to reach an agreement between themselves on the form of notice to be sent and who should receive it.

 The parties have not been able to reach agreement. Their chief dispute concerns the appropriate scope of the class definition. Plaintiffs want to define the proposed class to include:

all hourly-paid, non-managerial employees (e.g., waitstaff, bartenders, servers, busboys, back waitstaff, kitchen workers, porters, dishwashers, cooks, assistant cooks, salad makers, mixers-bakers, pizza makers, prep cooks, security guards, or any equivalent) who work or worked at one or more of the 15 Ark Restaurants during the past six years, and who (i) worked overtime during that period, (ii) did not receive minimum cash wages for all hours worked, (iii) did not have working time properly recorded, (iv) had to purchase or maintain uniforms, (v) did not receive agreed upon vacation time, (vi) were not allowed meal breaks, or (vii) were not informed about tip credit rules, or were required to pool tips with managerial or non-service employees.

 (See plaintiffs' March 16, 1998 letter to the Court.)

 Defendants object to this proposed class definition on the grounds that plaintiffs have failed to show any commonality in how employees were compensated at different Ark restaurants, or in how employees holding different positions within the same restaurant were compensated. (See Defendants' March 16, 1998 letter to the Court.) In support of their position, defendants offer the affidavit of Vincent Pascal, Ark's Vice President and Secretary, in which Mr. Pascal states that the 15 Ark Restaurants are "entirely separate operations" that independently control the compensation of employees within each restaurant. (Pascal Aff. P 2-3.) Therefore, defendants submit, any pay determinations complained of by plaintiffs "were made by different supervisors and were not part of a single common plan or policy." (Pascal Aff. P 4.) Second, Mr. Pascal asserts that compensation arrangements differed among employees holding different jobs within the same restaurant (i.e., a bartender was not paid in the same way as a dishwasher). (Pascal Aff. P 7.) For this reason as well, defendants argue that the named plaintiffs' individual claims in this action are distinct from each other and are not suitable to class representation.

 Defendants insist that if class notice is to be permitted at all, it must be narrowly circumscribed, so that a named plaintiff can represent only those employees who held the same exact job position at the same exact restaurant. For example, under defendants' approach, a plaintiff who worked as a dishwasher at American Place (one of the 15 Ark Restaurants) can represent and send notice only to other current and former dishwashers at American Place. That plaintiff can not, however, represent dishwashers at other Ark Restaurants. Nor can that plaintiff represent employees at American Place who held job positions other than dishwasher.

 Defendants' proposal to circumscribe notice along these narrow lines is obviously contrived. What defendants really are arguing, without saying so directly, is that any class notice would be inappropriate because the named plaintiffs themselves are not "similarly situated." This argument deserves further consideration. At the time I authorized class notice on January 16, I did not have before me Mr. Pascal's affidavit or any affidavits from the plaintiffs. Accordingly, I have decided to treat defendants' March 16 letter as a motion for reconsideration of the class notice issue. Toward this end, I asked plaintiffs to submit sworn affidavits in support of their claim that a definable group of "similarly situated" plaintiffs and potential plaintiffs exists. The Court has now reviewed the following documents bearing on the class notice issue: the pleadings, defendants March 16, 1998 letter enclosing the affidavit of Vincent Pascal; plaintiffs' March 16, 1998 letter and March 20, 1998 response to defendants' March 16 submission; plaintiffs' April 24, 1998 letter enclosing the affidavits of ten named ...

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