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Michael Szu, Arnaldo Fernandez, and Vinson Sanders, Individually and On Behalf of All Others Similarly Situated v. Tgi Friday's Inc. and Carlson Restaurants Worldwide

November 5, 2012

MICHAEL SZU, ARNALDO FERNANDEZ, AND VINSON SANDERS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
TGI FRIDAY'S INC. AND CARLSON RESTAURANTS WORLDWIDE, INC., DEFENDANTS.



The opinion of the court was delivered by: Bloom, United States Magistrate Judge:

MEMORANDUM AND ORDER

Plaintiffs Michael Szu, Arnaldo Fernandez, and Vinson Sanders bring this action on behalf of themselves and all other persons similarly situated against defendants TGI Friday's Inc. and Carlson Restaurants Worldwide, Inc., to recover unpaid overtime wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq., and the New York Labor Law. Pursuant to § 216(b) of the FLSA, plaintiffs now seek an order (1) conditionally certifying a class of similarly situated employees, (2) directing defendants to produce the names and contact information of potential opt-in plaintiffs, and (3) authorizing the parties to post and circulate the proposed Notice of Lawsuit and Consent to Join Lawsuit form to the class. Defendants oppose plaintiffs' motion to certify the class and alternatively request that the Court modify plaintiffs' proposed notice. At a status conference held on October 24, 2012, the Court granted plaintiffs' motion for the reasons stated below. The Court also directed the parties to submit a jointly prepared version of the proposed notice. The Court hereby authorizes distribution of the revised notice as follows.

BACKGROUND

Plaintiffs were employed as food servers in defendants' TGI Friday's Restaurant in Forest Hills, Queens during overlapping periods from 2006 to 2011 or 2012.*fn1 (Compl. ¶¶ 5-7, ECF No. 1). Plaintiffs state that in addition to their scheduled shifts, they were required by managers to work up to three hours per day "off-the-clock" before and after their shifts. Plaintiffs state that they were required to report to work fifteen minutes early to attend a pre-shift meeting, and that they were not allowed to clock in until the first table in their section was seated. (Szu Decl.¶¶ 18-21, ECF No. 22-3; Fernandez Decl.¶¶ 17-20, ECF No. 22-4; Sanders Decl.¶¶ 16-19, ECF no. 22-5.) They state that this pre-shift time could last for approximately one hour. (Id.) Plaintiffs also assert that they were required to clock out as soon as their last table of customers left the restaurant, but that they were required to complete additional cleaning and closing duties for up to two hours after they clocked out. (Szu Decl.¶¶ 22-29; Fernandez Decl.¶¶ 21-29; Sanders Decl.¶¶ 20-27.) Plaintiff Szu also states that he was required to work additional shifts "off the clock." (Szu Decl.¶¶ 15, 38, 45-46.)

Plaintiffs allege that they and other food service workers were not paid minimum or overtime wages for this off-the-clock work, or for any work in excess of forty hours per week. (Szu Decl.¶¶ 30-33; Fernandez Decl.¶¶ 29-30; Sanders Decl.¶¶ 28-30.) They state that although employees frequently worked more than forty hours per workweek, defendants systematically limited their reported hours to thirty to forty hours per week to avoid paying overtime wages.*fn2 (Compl. ¶ 21; Szu Decl.¶¶ 13, 17; Fernandez Decl.¶¶ 13, 16; Sanders Decl.¶¶ 14-15.)

Defendants deny plaintiffs' allegations and state that company policy prohibited employees from working off the clock. (Answer, ECF No. 13; Defs.' Opp'n 2-3.)

PROCEDURAL HISTORY

Plaintiff commenced this action and filed their written consent forms to participate in the lawsuit on May 30, 2012. (ECF No. 1.) One opt-in plaintiff, Adriadne Abdelqader, filed a consent form to participate in this case on September 19, 2012. (ECF No. 19.) Defendants answered plaintiffs' complaint on July 19, 2012. (ECF No. 13.) The Court held an initial pretrial conference on September 5, 2012 and set the schedule for plaintiff's instant motion for conditional certification, which was fully briefed on October 15, 2012. (ECF Nos. 20-26.) At a status conference on October 24, 2012, the Court granted plaintiff's motion and directed the parties to jointly revise and submit a proposed Notice of Lawsuit and Consent to Join Lawsuit form, which they did on November 4, 2012. (Rev. Prop. Notice, ECF No. 27.)

DISCUSSION

I. Class Certification

A. Legal Standard for Granting Notice

Plaintiffs seek to recover unpaid wages in a "collective action" pursuant to § 216(b) of the FLSA, which provides that:

An action . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction 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). While the statute does not require courts to act before additional employees may consent to join a suit, "district courts 'have discretion, in appropriate cases, to implement [§ 216(b)] . . . by facilitating notice to potential plaintiffs' of the pendency of the action and of their opportunity to opt-in as represented plaintiffs." Myers v. Hertz, ...


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