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Nicholas Ritz, On Behalf of Himself and All Others Similarly Situated v. Mike Rory Corp. D/B/A Astoria Brewhouse

April 29, 2013

NICHOLAS RITZ, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
MIKE RORY CORP. D/B/A ASTORIA BREWHOUSE, SEAN STRAW, AND BRENDAN STRAW, DEFENDANTS.



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

MEMORANDUM AND ORDER

Before the court is the parties' dispute concerning the contents of the notice of pendency to be sent to putative members of this collective action brought pursuant to the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. §§ 201-219. For the reasons stated below, the court hereby approves plaintiff's proposed notice and consent form, subject to the modifications discussed below.

BACKGROUND AND FACTS

Plaintiff Nicholas Ritz ("plaintiff"), on behalf of himself and all others similarly situated, moved to conditionally certify a collective action under the FLSA and sought an order authorizing plaintiff to distribute his proposed notice of lawsuit. By order dated January 24, 2013, the Honorable Jack B. Weinstein, Senior United States District Judge, referred plaintiff's motion to me.*fn1 (Order, dated Jan. 24, 2013.) Following plaintiff's submission of a supplemental declaration in support of his motion, defendants withdrew their opposition to plaintiff's motion for collective action but maintained their objections to plaintiff's proposed notice. (Defs.' Letter Regarding Motion for Collective Action, dated Apr. 17, 2013.) I granted plaintiff's motion for conditional certification on April 17, 2013, and reserved the ruling on the proposed notice form. (Order, dated Apr. 17, 2013.)

Plaintiff filed his complaint on January 26, 2012, alleging that defendants Mike Rory Corporation, Sean Straw, and Brendan Straw ("defendants") engaged in various unlawful employment practices involving employees of Astoria Brewhouse, a restaurant located in Astoria, New York. (See Complaint, dated Jan. 26, 2012 ("Compl.").) Plaintiff's first and second claims assert causes of action for unpaid wages and overtime under the FLSA. (Id. ¶¶ 48-56.) He sought leave to authorize the issuance of a notice to all current and former tipped, hourly food service workers who have worked for defendants since January 26, 2009. (See Pl.'s Memorandum of Law in Support of Motion to Conditionally Certify a FLSA Collective Action, dated Sept. 24, 2012 ("Pl.'s Mem."), at 9, 12-13.)

Plaintiff states that he was employed by defendants as a bartender from approximately March 2011 to November 2011, and claims that he is owed unpaid minimum wages and overtime for that period. (Declaration of Nicholas Ritz, sworn to July 20, 2012 ("Ritz Decl."), ¶¶ 1-8, annexed as Ex. D to Declaration of Brian Schaffer, Esq., sworn to Sept. 24, 2012 ("Schaffer Decl.").) He claims that he consistently worked five or six days per week, in approximately ten to eleven-hour shifts. (Id. ¶ 3.) He states that he was required to punch out and work "off the clock" when performing non-tipped work, such as cleaning or restocking the bar, and that he never received overtime compensation despite regularly working more than forty hours per week. (Id. ¶¶ 6-8.) Plaintiff contends that the hours recorded on his "punch in/punch out" records did not match the hours printed on his paychecks, and that those time records and payroll records establish that defendants did not properly compensate him for the hours he worked. (Pl.'s Mem. at 3; Schaffer Decl., Exs. F, G.)

Plaintiff submitted two declarations in support of his motion for preliminary certification. (See Ritz Decl.; Supplemental Declaration of Nicholas Ritz, sworn to Apr. 1, 2013 ("Supp. Ritz Decl.").) In his initial declaration, plaintiff stated that other tipped service workers were subject to the same or similar compensation policies, and that defendants required such employees to work more than forty hours each week without paying them overtime and to punch out before performing non-tipped work. (Ritz Decl. ¶¶ 6-7.) In his supplemental declaration, plaintiff provided the first names of six other bartenders and servers employed by defendants who regularly worked similar hours to plaintiff, and identified two other employees who complained to plaintiff that they were not being paid for all the hours they worked. (Ritz Supp. Decl. ¶¶ 3-5.) He also alleged that tipped service workers were required to sign a document identifying the number of hours for which they were paid before receiving their paychecks, even though the number listed did not reflect all the hours they worked, and that employees "signed the sheet so we could get paid and keep our jobs." (Id. ¶ 6.)

DISCUSSION

I. Notice of Lawsuit

Courts have "broad discretion to craft appropriate notices" in order to provide employees with "accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate." Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007) (internal citation and quotation marks omitted). Plaintiff has submitted a proposed notice of lawsuit and a proposed "opt-in" form. (Schaffer Decl., Ex. H.) Defendants have raised objections to specific portions of plaintiff's notice. The court hereby adopts plaintiff's proposed notice and consent form, subject to the modifications described below.*fn2

A. Scope of the Class

Plaintiff proposes to provide notice of this lawsuit to all bartenders, servers, bussers, and other tipped service workers employed by defendants. (Reply Memorandum of Law in Support of Pl.'s Motion for Preliminary Certification, dated Oct. 12, 2012 ("Pl.'s Reply Mem."), at 3.) Plaintiff asserts that, based on his observations and conversations, he believes defendants' practices to be widespread as to other tipped service workers with similar working hours and compensation structures, including servers, bussers, barbacks, and bartenders. (Supp. Ritz Decl. ¶¶ 2-6.) Defendants argue that recipients of the notice should be limited to bartenders. (Defs.' Memorandum of Law in Opposition to Pl.'s Motion to Proceed as a Collective Action Under the FLSA, dated Oct. 9, 2012 ("Defs.' Opp."), at 6-7.) Plaintiff's sworn statements are sufficient to make the modest showing required for conditional certification of a class consisting of tipped service workers at Astoria Brewhouse. See, e.g., Hernandez v. Immortal Rise, Inc., No. 11 CV 4360, 2012 WL 4369746, at *5-6 (E.D.N.Y. Sept. 24, 2012); Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y. 2007). Defendants will have another opportunity to contest class certification after discovery.

B. Notice Period

Defendants argue that the appropriate length of the notice period is two years because there is no indication that their actions were willful. (Defs.' Opp. at 8.) The FLSA imposes a three-year statute of limitations on ...


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