United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
LAURA TAYLOR SWAIN, District Judge.
In this putative collective action, Plaintiffs Cecilio Cordova ("Cordova"), Ronald Hoayek-Gonzalez ("Hoayek-Gonzalez"), Macario Cortes ("Cortes"), and Martin Martinez-Verea ("Martinez-Verea" and collectively, "Plaintiffs") assert claims on behalf of themselves and other similarly situated individuals against Defendants SCCF, Inc. ("Corporate Sophie's Defendant"); 45th St. Cuban, LLC d/b/a Sophie's Cuban Cuisine ("45th Street"), Chamberlain Restaurant Inc. d/b/a Sophie's Cuban Cuisine ("Fulton Street"), 27 Smith St. Cuban LLC d/b/a Sophie's Cuban Cuisine ("Smith Street") (collectively, the "Franchise Corporate Defendants"); Mahabir Enterprises LLC d/b/a Sophie's Cuisine ("Mahabir"); Luna Enterprises Inc. d/b/a Sophie's Cuban Cuisine ("Sophie's Luna"), Sophie's Restaurant #3 LLC d/b/a Sophie's Cuban Cuisine ("Sophie's Restaurant #3") (collectively, the "Non-Franchise Defendants"); Patricia Luna, Sofia Luna, Thomas Chamberlain ("Chamberlain"), and Alvin Lopez ("Lopez" and collectively, "Defendants") for, inter alia, failure to pay full minimum wage and overtime compensation as required by the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), the New York Labor Law §§ 190 et seq., and §§ 650 et seq. ("NYLL"). The Court has jurisdiction of this case under 28 U.S.C. §§ 1331 and 1367.
In the instant motion, Plaintiffs ask the Court to designate them as representatives of the collective and authorize notice to potential opt-in plaintiffs of the pendency of the action and of their opportunity to opt-in pursuant to 29 U.S.C. § 216(b). Only Defendant restaurants 45th Street, Fulton Street and Smith Street and individual Defendants Chamberlain and Lopez specifically oppose this motion. Defendants Mahabir, Luna Enterprises and Sophie's Restaurant #3 LLC have stipulated to allowing notice to be sent to potential opt-in plaintiffs at Mahabir's restaurant ("23rd Street"), and the Non-Franchise Defendants and individual Defendant Sofia Luna have a pending motion to dismiss and have reserved the right to oppose this motion. The Court has thoroughly reviewed the submissions of the parties and, for the following reasons, Plaintiffs' motion is granted.
The following is a summary of the relevant facts alleged in Plaintiffs' Second Amended Complaint ("SAC"). Defendants prepare and sell Cuban cuisine for delivery and for consumption in the restaurants. (SAC ¶ 2.) Plaintiffs are current and former food delivery employees of Defendants. (Id. ¶¶ 6, 68, 73, 79, 85.) Plaintiffs allege that Defendants "have maintained an unlawful practice" of not paying Plaintiffs and similarly situated employees the proper minimum wage and overtime compensation, not keeping proper records, not paying Plaintiffs and similarly situated employees for certain hours of work, and misappropriating Plaintiffs' and similarly situated employees' tips. (Id. ¶ 7.)
Plaintiffs allege that Defendants Chamberlain and Lopez own, operate, and supervise Defendant 45th Street, located in New York, New York; Fulton Street, located in New York, New York; and Smith Street, located in Brooklyn, New York. (Id. ¶¶ 22, 26.) Chamberlain and Lopez are also the managing agents for, and directors, shareholders, and proprietors of the Defendant restaurants. (Id.) Plaintiffs further allege that Chamberlain and Lopez exercise operational and functional control over the Defendant restaurants by promulgating employment and compensation policies, determining whether to hire and fire employees, determining rates and methods of pay for all employees, determining the work schedules of employees, and supervising and controlling the work of employees. (Id. ¶¶ 46-48.) According to Plaintiffs, Chamberlain and Lopez are present on the premises of each location on a daily basis and directly interact with the employees at each location by paying the employees; training and supervising them; moving the employees around "in a fungible and interchangeable manner;" hiring and training the managers; and mandating that all employment issues - including hours worked and pay received - be authorized by them. (Id. ¶¶ 49, 90, 92-93.)
In or about June 2011, Defendants Chamberlain and Lopez hired Plaintiff Cordova to work at Defendant 45th Street as a non-exempt delivery person, stock person, and cleaner. (Id. ¶ 68; Cordova Aff. ¶ 4.) Cordova alleges that he worked about twenty hours per week and was paid $5 per hour. (SAC ¶¶ 70-71; Cordova ¶¶ Aff. 6-7.) According to Plaintiffs, Cordova was paid for only fifteen hours of work per week, meaning he was paid a total of $75 per week. (SAC ¶ 71; Cordova Aff. ¶ 7.) Cordova alleges that he was not paid the proper minimum wage. (SAC ¶ 71; Cordova Aff. ¶ 8.) Cordova was fired by Chamberlain and Lopez on or about August 23, 2013. (SAC ¶ 69; Cordova Aff. ¶ 4.)
In or about November 2010, Defendants Chamberlain and Lopez hired Plaintiff Hoayek-Gonzalez to work at Defendant 45th Street as a non-exempt delivery person, stock person, and cleaner. (SAC ¶ 79; Hoayek-Gonzalez Aff. ¶¶ 4-5.) Hoayek-Gonzalez alleges that he worked about fifty hours per week. (SAC ¶ 81; Hoayek-Gonzalez Aff. ¶ 6). From November 2010 through April 2011, Hoayek-Gonzalez was paid $4.65 per hour, and from May 2011 through November 2011, he was paid $5 per hour for the first forty hours worked and $7.50 for five hours of overtime each week. (SAC ¶¶ 81-83; Hoayek-Gonzalez Aff. ¶¶ 7-8.) Hoayek-Gonzalez alleges that he was not paid the proper minimum wage and overtime compensation. (SAC ¶ 82; Hoayek-Gonzalez Aff. ¶ 10.) Hoayek-Gonzalez quit his employment on or about November 5, 2011. (SAC ¶ 80; Hoayek-Gonzalez Aff. ¶ 4.)
In or about November 2012, Defendants Chamberlain and Lopez hired Plaintiff Cortes to work at Defendant 45th Street as a non-exempt delivery person, stock person and cleaner. (SAC ¶ 73.) Cortes alleges that he worked fifty-five hours per week and was paid $5 per hour for forty hours of work, thereby earning $200 per week. (Id. ¶ 77.) Cortes also alleges that he was not paid the proper minimum wage or overtime compensation. (Id. ¶ 77.) Chamberlain and Lopez terminated Cortes's employment on or about June 29, 2013. (Id. ¶ 75.)
In their affidavits, Plaintiffs Cordova and Hoayek-Gonzalez each assert that they have spoken with other employees of Chamberlain and Lopez about alleged FLSA violations. (Cordova Aff. ¶¶ 11-12; Hoayek-Gonzalez Aff. ¶¶ 12-14.) More specifically, Cordova asserts that he has spoken with other employees "who have worked at the defendants' restaurants, and they similarly have not been paid minimum wages or overtime compensation." (Cordova Aff. ¶ 11.) Cordova further asserts that he has spoken with two of his former co-workers, for whom he provides first names and job functions, and that they "were also not paid proper minimum wages or overtime compensation for hours worked in excess of forty." (Cordova Aff. ¶ 12.) Similarly, Plaintiff Hoayek-Gonzalez asserts that he has spoken with other employees from all three of the locations owned and operated by Chamberlain and Lopez, and they were not paid the proper minimum wage or overtime compensation. (Hoayek-Gonzalez Aff. ¶¶ 12-14.) Hoayek-Gonzalez provides the first name of two such employees who did the same or similar work as him and who worked at the 45th Street location, and he provides the full name and job description of one of the employees at the Fulton Street location with whom he also spoke. (Id.)
Plaintiffs seek conditional certification of a collective action pursuant to section 16 of the FLSA, which authorizes private parties to bring minimum wage and overtime claims "[o]n behalf of... themselves and other employees similarly situated." 29 U.S.C. § 216(b). Although the FLSA does not provide for a certification process, district courts have discretion in implementing section 16 to help facilitate notice to potential plaintiffs "of the pendency of the action and of their opportunity to opt-in as represented plaintiffs." Myers v. Hertz Corp. , 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffman-La Roche Inc. v. Sperling , 493 U.S. 165, 169 (1989)); see also Gjurovich v. Emmanuel's Marketplace, Inc. , 282 F.Supp.2d 101, 104 (S.D.N.Y. 2003) ("it is well settled' that district courts have the power to authorize an FLSA plaintiff to send such notice"). Courts in this Circuit follow a two stage certification process for collective actions under the FLSA. See Myers , 624 F.3d at 554-55. In the first stage, courts make an initial determination as to whether there may potentially be similarly situated employees. See id.; Hoffmann v. Sbarro, Inc. , 982 F.Supp. 249, 261 (S.D.N.Y. 1997). At the second stage, after discovery, the Court looks to the full record and determines whether the optin plaintiffs are truly similarly situated to the named plaintiffs, and, if they are not, the action may be "de-certified" and the opt-in plaintiffs' claims will be dismissed without prejudice. See Myers , 624 F.3d at 555.
Plaintiffs' motion falls within the first stage of the certification process. The Defendants argue that Plaintiffs rely on conclusory and unsupported allegations and have not satisfied their burden on conditional certification. At this stage, the burden is on Plaintiffs to show that they and the potential opt-in plaintiffs are similarly situated. See, e.g., Kim Man Fan v. Ping's On Mott, Inc., No. 13 Civ. 4939(AT), 2014 WL 1512034, at *1 (S.D.N.Y. Apr. 14, 2014); Morales v. Plantworks, Inc. , 05 Civ. 2394(DC), 2006 WL 278154, at *2 (S.D.N.Y. Feb. 2, 2006). This burden, however, is minimal and can be satisfied with a "modest factual showing" that the plaintiff and the potential opt-in plaintiffs "together were victims of a common policy or plan that violated the law." Sbarro , 982 F.Supp. at 261. In showing that they were victims of a common plan that violated the law, "Courts do not require a named plaintiff to show an actual FLSA violation, but rather that a factual nexus exists between the plaintiff's situation and the situation of other potential plaintiffs." Summa v. Hofstra Univ. , 715 F.Supp.2d 378, 386 (E.D.N.Y. 2010) (quoting Gayle v. Harry's Nurses Registry, Inc., No. 07 Civ. 4672(CPS)(MDG), 2009 WL ...