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Hernandez v. Ngm Management Group LLC

United States District Court, Second Circuit

September 18, 2013

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

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

John J. Palmeri, Esq., PALMERI & GAVEN, New York, NY, Attorneys for Defendants.


ROBERT W. SWEET, District Judge.

Plaintiff Gabino Hernandez ("Hernandez" or "Plaintiff") has moved for an order (i) granting conditional collective action certification pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), and New York Labor Law ("NYLL"), (ii) providing for court-facilitated notice of the collective action, (iii) compelling defendants NGM Management Group LLC d/b/a Bareburger Chelsea, Nikos Karaiskos, Michael Pitsinos, and George Hadjipanayi (collectively, "Defendants" or "Bareburger") to produce certain information to Plaintiff, and (iv) providing for posting of the notice at the restaurant owned by Defendants. For the reasons set forth below, Plaintiff's motion is granted.

Prior Proceedings

The Plaintiff filed this lawsuit against Defendants on October 18, 2012, seeking unpaid wages under the FLSA and NYLL. Plaintiff has sought to assert the FLSA claims on behalf of himself and all non-exempt employees employed by Defendants in any tipped position within the last six years ("Covered Employees" or "tipped employees"). Plaintiff's complaint (the "Complaint") has alleged that Defendants failed to pay the Covered Employees the proper minimum wage under the FLSA and NYLL.

On May 3, 2013, Plaintiff filed the instant motion, which seeks the following: conditional certification of the 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.

The motion was marked fully submitted on July 8, 2013.


Defendants operate a restaurant enterprise under the trade name "Bareburger, " located at 153 8th Avenue, New York. Plaintiff was employed by Defendants as a delivery person from on or about April 30, 2012 until on or about May 29, 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 $4.50 per hour, in violation of the statutory minimum wage rate required for all tipped employees. ( Id. ¶¶ 2-3.) Plaintiff additionally alleges that Defendants failed to provide proper tip credit because they: (1) did not provide proper notice under the FLSA and NYLL; (2) caused him to engage in non-tipped duties exceeding 20% of his workday including cooking, preparing food, and cleaning the restaurant and (3) did not provide proper wage statements informing Plaintiff of the amount of tip credit for each payment period. ( Id. ¶¶ 4-7.)

In addition, 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. ( Id. ¶¶ 3-7.)

Hernandez asserts that the Covered Employees are owed compensation for (1) unpaid minimum wage, (2) liquidated damages, and (3) attorneys fees and expenses.

Applicable Standard

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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