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Hernandez v. Bare Burger Dio Inc.

United States District Court, Second Circuit

June 18, 2013

GABINO HERNANDEZ, On behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff,
v.
BARE BURGER DIO INC., BAREBURGER INC., BAREBURGER GROUP LLC, GEORGE RODAS, GREGORY DELLIS, and EFTYCHIOS PELEKANOS, Defendants.

C. K. Lee, Esq., LEE LITIGATION GROUP, P.L.L.C., New York, New York, Attorneys for Plaintiff GABINO HERNANDEZ.

Jeffrey Spiegel, Esq., Michael Vollbrecht, Esq., Ronald A. Giller, Esq., GORDON & REES, LLP, New York, New York, Attorneys for Defendants BARE BURGER et al.

OPINION

ROBERT W. SWEET, District Judge.

Plaintiff Gabino Hernandez ("Mr. Hernandez" or "Plaintiff") seeks Conditional Collective Certification pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), and New York Labor Law ("NYLL"), as well as Court-facilitated notice of this action to Covered Employees and compelled discovery against Defendants Bare Burger Dio Inc., Bareburger Inc., Bareburger Group LLC, George Rodas, Gregory Dellis, and Eftychios Pelekanos (collectively, "Defendants" or "Bareburger"). For the reasons set forth below, Plaintiff's Motion for Conditional Collective Action Certification, for approval of its notice and consent forms, to compel production of contact information, and to post the notice and consent forms at Defendants' restaurant is granted.

I. PRIOR PROCEEDINGS

The Plaintiff filed this lawsuit against Defendants on October 18, 2012 seeking unpaid wages under the FLSA and NYLL. Plaintiff brought the FLSA claims on behalf of himself and all non-exempt employees employed by Defendants in any tipped position within the last three years ("Covered Employees" or "tipped employees"). The Complaint alleges that Defendants (1) failed to pay Covered Employees the proper minimum wage under the FLSA and NYLL; (2) failed to pay Covered Employees the proper overtime premium under the FLSA and NYLL and (3) failed to pay Covered Employees spread of hours premium under NYLL.

On May 2, 2013, Plaintiff filed a motion seeking the following: Conditional certification of this action as a representative collective action; Court-facilitated notice of this action to Covered Employees including a consent form (opt-in form); approval of the proposed FLSA notice of this action and consent form; production in Excel format by Defendants of names, title, compensation rate, hours worked per week, period of employment, last known mailing addresses and all known telephone numbers of Covered Employees within 10 days of the Court's Order approving the motion; and posting of the notice in a conspicuous location at the Bareburger restaurant operated by Defendants. This motion was marked heard and fully submitted on May 29, 2013.

II. BACKGROUND

Defendants operate a restaurant enterprise under the trade name "Bareburger, " located at 535 LaGuardia Place, New York, New York, 10012.

Plaintiff was employed by Defendants as a delivery person from in or about October 2011 until in or about May 2012. (Declaration of Gabino Hernandez ("Hernandez Decl."); ¶ 1.) At all times during his employment, he was a tipped employee. ( Id. ) Plaintiff alleges that during his employment, he was paid a regularly hourly rate of $4.00 per hour from October 2011 to January 2012, and $5.00 per hour from January 2012 to May 2012, in violation of the statutory minimum wage rate required for all tipped employees. ( Id. ¶¶ 2-3.) Plaintiff also alleges that he worked in excess of 40 hours per week and was not compensated with the statutorily required overtime pay. ( Id. ¶ 5.) More specifically, Plaintiff alleges that Defendants failed to provide proper tip credit because they: (1) did not provide proper notice under the FLSA and NYLL; (2) failed to properly calculate overtime rate; (3) caused him to engage in non-tipped duties exceeding 20% of his workday including cooking, preparing food, and cleaning the restaurant and (4) did not provide proper wage statements informing Plaintiff of the amount of tip credit for each payment period. (Plaintiff's Memorandum ("Mem.") at 6.)

In addition, Mr. Hernandez maintains that during his employment, he personally observed that other tipped employees were also paid below the statutory wage, worked in excess of 40 hours per week without being properly compensated for overtime, were not provided proper written wage notice or tip credit notice, and were often required to engage in non-tipped activities exceeding 20% of their workday. (Hernandez Decl. ¶¶ 4-7.) Furthermore, Mr. Hernandez asserts that he regularly exceeded ten hours per work day without any spread of hour premium, and personally observed that no employee employed by Defendants received any spread of hour payments even when their workday exceeded ten hours per day. ( Id. ¶ 8.)

Plaintiff asserts that Covered Employees, including Mr. Hernandez, are owed compensation for unpaid (1) minimum wage, (2) overtime pay, (3) liquidated damages, and (4) attorneys fees and expenses.

IV. STANDARD OF REVIEW

Courts generally determine the appropriateness of class certification at two stages: first, on the initial motion for conditional class certification, and second, after discovery. Fasanelli v. Heartland Brewery, Inc., 516 F.Supp.2d 317, 321 (S.D.N.Y. 2007); see also Cuzco v. Orion Builders, Inc., 477 F.Supp.2d 628, 632 (S.D.N.Y. 2007). Following this determination, notification of class members proceeds according to a court-ordered plan, providing the opportunity for those notified to "opt-in" to the action. Fasanelli, 516 F.Supp.2d at 321. After discovery, the Court re-examines the record to determine whether the claimants are indeed ...


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