United States District Court, W.D. New York
J. Nelson Thomas, Esq., Jared Kimball Cook, Esq., Michael J. Lingle, Esq., Thomas & Solomon LLP, Rochester, NY., for Plaintiffs.
Jeffrey Howard Ruzal, Esq., Kenneth John Kelly, Esq., Epstein, Becker & Green, P.C., New York, NY., for Defendants.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This is an action asserting claims under the Fair Labor Standards Act ("FLSA") and the minimum-wage statutes of the states of New York, Maryland, Missouri, Illinois and Arizona. Now before the Court is Plaintiff's motion (Docket No. [#7]) for conditional certification of an FLSA collective action. The application is granted as discussed below.
The Court has already issued two Decisions and Orders [#63][#71] in this action, containing detailed discussions of Plaintiffs' claims, with which the reader is presumed to be familiar. Essentially, defendant Crab Addison operates 136 restaurants across the United States, and Plaintiffs, who were employed as tipped servers/hostesses/bartenders in that chain of restaurants, maintain that Defendants violated the FLSA and the pertinent state minimum-wage laws by, inter alia, paying them less than the full required minimum wage pursuant to the "tip credit, " while requiring them to spend an excessive amount of their work shifts performing non-tipped duties.
The Amended Complaint [#64] asserts that Plaintiffs were required to perform either unrelated non-tipped duties ("dual job" duties), or an excessive amount of related non-tipped duties ( i.e., more than twenty percent of the shift), during each and every shift, and that they were therefore necessarily paid less than the minimum wage for each and every week that they worked for Defendants. The pleading further alleges that Defendants failed to provide employees with the proper notice regarding the tip credit.
In support of the instant application for conditional certification of an FLSA collective action, Plaintiffs have submitted affidavits [#9-2]-[#9-22] from twenty-one employees who worked for defendant Crab Addison in Arizona, Florida, Illinois, Indiana, Maryland, Missouri, New Jersey, New York, Ohio, Texas, Utah and Virginia. The employees all indicate that although they were paid as tipped employees, they were consistently required to perform untipped opener duties, closing duties and running sidework more than twenty percent of the time. Many of the employees further indicate that they were told by their local managers and/or their corporate trainers that the requirement that they perform such work was part of defendant Crab Addison's corporate policies. The affidavits are all essentially identical, except for the names of the affiants, the locations where they worked, and the names of their local managers. Plaintiffs maintain that the affidavits establish that they are "similarly situated, " with the meaning of the FLSA's collective action provision, 29 U.S.C. § 216(b).
Defendants oppose the motion, and have submitted affidavits from ninety-five of their tipped employees, and managers, from Arizona, California, Colorado, Florida, Georgia, Illinois, Kentucky, Louisiana, Maryland, Michigan, Missouri, Nebraska, Nevada, New York, South Carolina, Tennessee and Texas, who estimate that they spent 20% or less of their time performing non-tipped duties. These employees further state either that they were never required to perform many of the tasks that Plaintiffs contend were required of all tipped employees, or that the tasks took only a few minutes to complete. These affidavits, like those of the Plaintiffs, are essentially identical in most respects. Defendants have also submitted an affidavit from Crab Addison's Director of Process Improvement, denying that there is any corporate policy to pay tipped employees less than the minimum wage.
Generally, Defendants contend that Plaintiffs' application for certification of a collective action should be denied because Plaintiffs have not shown either the existence of a common policy, or that they are similarly situated to the putative class they seek to represent. As to the former point, Defendants maintain that Plaintiffs have not shown a nationwide policy, since, according to Defendants' submissions, "local management teams make their own staffing and scheduling decisions." With regard to the latter point, Defendants emphasize that the proposed class would comprise approximately thirty thousand people, and that Plaintiffs have provided only a relatively small number of affidavits attesting to the existence of the alleged illegal policy at certain restaurants. Defendants contend that in a case such as this, involving 136 restaurants across the U.S., and 30, 000 potential class members, a greater factual showing should be required than what Plaintiffs have made.
Alternatively, Defendants contend that Plaintiffs' proposed notice and method of distribution are deficient in various respects.
The Request for Preliminary Certification of an FLSA Collective ...