The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge:
Plaintiff Gerardo Valdez Lujan ("plaintiff") brings this purported collective action against defendants Cabana Management, Inc. ("Cabana") and Glenn Frechter (collectively "defendants"), who he claims are his former employers. Plaintiff seeks unpaid wages, overtime, attorney's fees and costs under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, as well as various provisions of the New York state labor laws. Plaintiff alleges that Cabana failed to pay workers the minimum wage for all hours worked, failed to pay overtime for hours worked in excess of forty per week, and improperly appropriated gratuities owed to the waitstaff. See Plaintiff's Memorandum of Law in Support of the Motion for Conditional Certification and Notice to the Class (Oct. 8, 2010) ("Pl. Mem.") at 1, ECF Docket Entry ("D.E.") #35. Plaintiff now seeks court-supervised notice to putative class members, viz., the employees of Cabana's restaurants in New York and Florida. Id. at 1. For the reasons detailed in this opinion, this Court grants the application in part, authorizing notice only to employees or former employees of the Cabana restaurants located in New York for the period specified herein.*fn1
Plaintiff Lujan seeks certification of an opt-in class encompassing five restaurants he alleges were operated by defendants: Cabana Midtown, in Midtown Manhattan; Cabana Seaport, in Manhattan's South Street Seaport; a location in Forest Hills, Queens; Cabana West Palm, in West Palm Beach, Florida; and Cabana El Rey, in Delray Beach, Florida.*fn2 Pl. Mem. at 2-3. Plaintiff Lujan worked at Cabana's Midtown and Forest Hills restaurants from 2002 to March 2009, as a dishwasher, runner, and busboy. Affidavit of Geraldo Valdez Lujan ¶¶ 2-3 (Oct. 8, 2010), Ex. E to D.E. #35.*fn3 He claims that Cabana paid him approximately $6.50 per hour for his untipped work as a dishwasher, id. ¶ 4, close to the $6.55 per hour federal minimum wage in effect at the time he left Cabana. 29 U.S.C. § 206(a)(1)(B). He likewise claims that Cabana paid him $4.60 per hour for his work as a runner and busboy, Lujan ¶ 4, equal to the effective minimum wage applicable to tipped food service workers under New York Labor Law § 652(4).*fn4
Plaintiff alleges that Cabana's pay practices were illegal in several respects. He claims that he almost always worked in excess of 40 hours per week, receiving neither his normal pay rate nor the "time-and-a-half" rate due under the FLSA. Lujan ¶ 7; 29 U.S.C. § 207(a)(1). He claims that his managers undercounted employees' hours, by altering computerized time records and by forcing servers to wait until customers arrived to "clock in." Lujan ¶¶ 9, 14. Finally, he states that managers forced servers to use their tips to cover the cost of mistakes and other losses, Lujan ¶ 8, a practice that would undercut an employer's legal justification for paying tipped employees less than the regular minimum wage. See 29 U.S.C. § 203(m) (allowing wages under the minimum wage only if "all tips received by such employee have been retained by the employee").
Plaintiff Lujan further contends that members of the putative class experienced similar violations and are thus similarly situated to him. Pl. Mem. at 1. In support of his motion, he has submitted the affidavits of ten other former Cabana employees presenting similar allegations in similar (often identical) language.*fn5 The would-be plaintiffs worked as hostesses, waitstaff, busboys, runners and bartenders. See, e.g., Belandria ¶ 4; Calero ¶ 3; Lujan ¶ 3; Sanchez ¶ 3. Most worked at more than one Cabana location. See, e.g., Ruiz ¶ 2; Vargas ¶
2. The affidavits represent a total of ten employees from Cabana Midtown, five from Cabana Seaport, and six from the Forest Hills location. Pl. Mem. at 2. They include only one affiant ever employed at one of the Florida restaurants: Vanessa Belandria, who worked for a time at a location in West Palm Beach.*fn6 Belandria ¶ 2. Most of the workers claim that they have knowledge of Cabana's pay practices beyond their own paychecks--for example, that they discussed pay practices with and shared timesheets with co-workers, and that they saw managers altering time records. See, e.g., Calero ¶¶ 12-14.
Defendants challenge several aspects of plaintiff's evidentiary showing. They contend that the Court should disregard those affidavits from would-be plaintiffs not employed during the three-year statute of limitations period established by the FLSA. Def. Mem. at 9; 29 U.S.C. § 255; cf. N.Y. Labor L. § 198(3) (setting forth a six-year statute of limitations for actions under New York's wage and hour laws). They object to the affiants' use of hearsay and conclusory statements. Def. Mem. at 12; see, e.g., Morales ¶ 11 ("I am friends with an employee who works at [locations in New York and Florida]. He told me that he and his co-workers were also not being paid their legal wages and that the same unlawful things that were occurring at Cabana's New York locations were also occurring at Cabana's Florida locations.").
Defendants also challenge, on several grounds, plaintiff's assertion that he is similarly situated to members of the putative class. For example, they observe that many of the alleged violations were specific to servers, while Lujan worked only as a busser and runner. Def. Mem. at 15. Defendants point to, and proffer evidence as to, the inherently sporadic nature of some of the alleged violations, such as requiring servers to cover the losses associated with customers who left without paying. Def. Mem. at 16; see Declaration of Benjamin Bautista ¶ 4(b) (Nov. 5, 2010), Ex. 3 to D.E. #42 (claiming that walk-outs occurred "very rarely" and that waitstaff were not required to bear such losses). Defendants also note that plaintiff submitted no first-hand evidence of any wage and hour violations at Cabana's Florida locations during the FLSA limitations period. Def. Mem. at 21.
Defendants additionally argue that the Cabana restaurants are owned not by defendants Glenn Frechter or Cabana Management, Inc., but by distinct LLCs not before the Court. Def. Mem. at 6. They cite the absence of evidence that defendant Frechter hired, fired, set schedules for, directed or even met the would-be plaintiffs. Id. Defendants therefore urge the Court to refuse to certify the class, on the ground that the proper entities are not before the Court. In response, plaintiff points to proof that the Cabana restaurants shared employees, policies, computer systems, and payroll and business records, as well as the same principal, Glenn Frechter. Plaintiff's Reply Memorandum of Law in Support of the Motion for Conditional Certification and Notice to the Class ("Reply Mem.") at 14-15 (Nov. 22, 2010), D.E. #45.
Finally, defendants dispute the merits of plaintiff's claims, contending that Cabana's policies and practices complied with the Fair Labor Standards Act, and that no workers were denied overtime, forced to work "off the clock," forced to cover restaurant losses, or denied their tips. Def. Mem. at 11. To support this contention, defendants have submitted seventeen declarations from current employees, as well as declarations from several general managers, asserting that the claimed violations did not occur and were barred by Cabana's policies. See generally Declarations (Nov. 5, 2010), Ex. 3-5 and 10-26 to D.E. #42.
I. STANDARDS FOR CONDITIONAL CERTIFICATION OF AN OPT-IN CLASS
FLSA claims may be pursued collectively pursuant to section 216(b) of the Act, which provides that an action to recover unpaid wages: may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. 216(b). Courts have discretion under this section to direct a defendant employer to disclose the names and addresses of similarly situated potential plaintiffs and to authorize the sending of notice to those individuals, so that they may "opt in" to the collective action. See Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y. 1997) (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989)). Once a plaintiff opts in to a collective action by filing notice with the court, the statute of limitations on that plaintiff's FLSA claim is tolled. See Levy v. Verizon Info. Servs., Inc., No. 06-CV-1583 (NGG), 2007 WL 1747104, at *3 (E.D.N.Y. June 11, 2007) (citing Sbarro, 982 F.Supp. at 260).
In determining whether a matter should proceed as a collective action, courts follow a two-step process, looking first to the pleadings and affidavits to determine whether the putative class members are "similarly situated." Laroque v. Domino's Pizza, LLC, 557 F.Supp.2d 346, 352 (E.D.N.Y. 2008) (citing Jacobs v. New York Foundling Hosp., 483 F.Supp.2d 251, 265 (E.D.N.Y. 2007)); accord Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006). "If the plaintiffs can satisfy a minimal burden of showing that they are similarly situated to the potential class members, the court certifies the class and provides for notice to be sent to the potential class members who are then given the chance to opt in to the action." Laroque, 557 F.Supp.2d at 352 (citing Jacobs, 483 F.Supp.2d at 265). After discovery, defendants may move for decertification; at that stage, the court conducts a more exacting factual inquiry into whether the opt-in plaintiffs are similarly situated. See Laroque, 557 F.Supp.2d at 352. "If the court is satisfied at this [latter] stage that the class members are similarly situated, the collective action proceeds to trial; otherwise, the court decertifies the class, and the class members must pursue their claims individually." Id. (citing Jacobs, 483 F.Supp.2d at 265).
Neither the FLSA nor its implementing regulations defines the term "similarly situated." At the notice stage, however, courts in this circuit apply a lenient standard, requiring only a "a modest factual showing sufficient to demonstrate that [the named plaintiffs] and potential plaintiffs together were victims of a common policy or plan that violated the law." Laroque, 55 F.Supp.2d at 352 (citing Sbarro, 982 F.Supp. at 261). The court must find "some identifiable factual nexus which binds the named plaintiffs and potential class members together as victims" of particular illegal practices. Sbarro, 982 F.Supp. at 261 (citing Heagney v. European Am. Bank, 122 F.R.D. 125, 127 (E.D.N.Y. 1988)); see also Laroque, 557 F.Supp.2d at 352 ("Generally, at the notice stage, courts require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.") (citing Rodolico v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y. 2001)). Nevertheless, plaintiffs must make a factual showing; "[m]ere allegations in the complaint are not sufficient." Laroque, 557 F.Supp.2d at 353 (citing Prizmic v. Armour, Inc., No. 05-CV-2503(MDG), 2006 WL 1662614, at *2 (E.D.N.Y. June 12, 2006)).
Collective actions under the FLSA differ in several respects from class actions under Rule 23 of the Federal Rules of Civil Procedure:
Under the FLSA, potential plaintiffs are required to "opt-in" "to be bound by the judgment (and to benefit from it)." Each potential plaintiff must file his or her written consent in the court in which the suit is brought. In relation to the class certification requirements, "a named plaintiff in a collective action need not demonstrate other facts--numerosity, commonality, typicality, and adequacy of representation--which are required to bring a class action."
Cano v. Four M Food Corp., No. 08-CV-3005 (JFB)(AKT), 2009 WL 5710143, at *4 (E.D.N.Y. Feb. 3, 2009) (citations omitted).
II. MOTION FOR CONDITIONAL CERTIFICATION
Keeping in mind the preliminary posture of this litigation, the Court first considers whether plaintiff has sufficiently demonstrated that he is similarly situated to employees at the Cabana locations in New York and Florida.
Plaintiff's submission satisfies his minimal burden of showing that
plaintiff is similarly situated to employees at Cabana's Midtown,
Forest Hills and South Street Seaport locations. The employees'
declarations articulate a number of FLSA violations common to all
three of the New York locations; several such violations are shared
among employees in various job classifications, both tipped and
untipped. Tipped and untipped employees alike, from each New York
location, aver that they saw managers change electronic time records
to reduce the hours that employees actually worked.*fn7
Similarly, tipped and untipped employees alike, from each New
York location, state that their paychecks did not accurately reflect
their hours worked.*fn8 With respect to these three
restaurants, plaintiffs has submitted declarations from ten (former)
workers, each of whom worked at or near the minimum wage, attesting
that each regularly worked hours for which he or she was not paid.
Seven such workers, again
representing each New York restaurant, claim that they regularly saw
managers altering time records to reduce the number of hours worked.
Many such declarations assert that the workers in question discussed
the matter with co-workers and found their co-workers were similarly
underpaid.*fn9 Eleven employees, representing each New
York restaurant, likewise report working uncompensated or
under-compensated overtime.*fn10 Taken together, these
amount to "substantial allegations" sufficient to demonstrate that members of
the proposed opt-in class, including tipped and untipped workers at
each of the New York locations, were victims of "a single decision,
policy or plan," Laroque, 557 F.Supp.2d at 352, to deprive employees
of payment for some hours worked.
Plaintiff also alleges violations inherently specific to waiters, or to waiters and bartenders. Some of these allegations support the case for certification. For example, seven of the affidavits also allege that Cabana regularly compelled servers to cover mistaken orders or other losses with their tips. See Calero ¶ 8; Lujan ¶ 8; Garcia ¶ 7; Morales ¶ 9; Ruiz ¶ 8; Sanchez ¶ 8; Vargas ¶ 8. These allegations, if proven, would undercut defendants' legal justification for claiming a "tip credit" and paying tipped employees less than the regular minimum wage. See 29 U.S.C. § 203(m) (allowing employers to ...