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Hernandez v. Bare Burger Dio Inc.

United States District Court, Second Circuit

July 27, 2013

GABINO HERNANDEZ, On behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff,

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

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


ROBERT W. SWEET, District Judge.

Plaintiff Gabino Hernandez ("Mr. Hernandez" or "Plaintiff") has brought an action for damages arising out of his employment as a take-out food delivery person for Defendants Bare Burger Dio Inc., Bareburger Inc., Bareburger Group LLC, George Rodas, Gregory Dellis, and Eftychios Pelekanos (collectively, "Defendants" or "Bareburger") for federal minimum wage and overtime violations under the Federal Labor Standards Act ("FLSA") and New York State minimum wage, overtime and "spread of hours" violations. This Court certified Plaintiff's motion for Conditional Collective Action Certification on June 18, 2013.

On June 20, 2013, Plaintiff notified the Court via letter of a discovery dispute that had arisen. The dispute concerned Defendants' responses to Plaintiff's Interrogatories and Document Production Requests. Plaintiff's letter was treated as a motion to compel. For the foregoing reasons, Plaintiff's motion is denied in part and granted in part.


Plaintiff filed this lawsuit on October 18, 2012, under the FLSA and NYLL, on behalf of himself and all non-exempt tipped employees employed by Defendants within the last three years ("Covered Employees" or "tipped employees").

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 ELSA 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. On June 18, Plaintiff's motion was granted in its entirety.

On March 22, 2013, Plaintiff served his First Set of Interrogatories and Document Production Requests on Defendants. The parties met and conferred on June 3, 2013 regarding disputes over Defendants' responses, and Defendants agreed to provide supplemental responses to Plaintiff's Document Production Requests, Initial Disclosures and status of e-discovery production by June 10, 2013. On June 10, 2013, Defendants provided their supplemental responses.

On June 20, 2013, Plaintiff submitted a letter to the Court requesting that the Court compel Defendants' compliance with certain outstanding discovery requests. This motion was marked fully submitted on July 10, 2013.


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 ...

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