United States District Court, S.D. New York
For Mr. Luis Garcia, on behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff: Anne Melissa Seelig, C.K. Lee, LEAD ATTORNEYS, Lee Litigation Group, PLLC, New York, N.Y. USA.
For Miguel Flores, Eduardo Morales, Eduardo Luna, Hugo Cortes, Plaintiffs: C.K. Lee, LEAD ATTORNEY, Anne Melissa Seelig, Lee Litigation Group, PLLC, New York, N.Y. USA.
For Alison Moskowicz, Spectrum of Creations, Inc., doing business as Food Trends, Defendants: David Brian Feldman, LEAD ATTORNEY, John Vincent Baranello, Moses & Singer LLP, New York, N.Y. USA.
OPINION AND ORDER
GABRIEL W. GORENSTEIN, United States Magistrate Judge.
Luis Garcia filed this suit against his former employer, Spectrum of Creations, Inc. d/b/a Food Trends (" Food Trends" ), and Alla Moskowicz for violations of the Fair Labor Standards Act, 29 U.S.C. § § 201 et seq. (" FLSA" ), and the New York Labor Law (" NYLL" ). On January 21, 2015, Miguel Flores joined the lawsuit, and three other individuals have joined the lawsuit since. Plaintiffs now move to have this case conditionally approved as a collective action with notice being sent to " all non-exempt employees."  For the following reasons, plaintiffs' motion is granted in part and denied in part.
Defendants operate a business called Food Trends, located at 56 East 41st Street in Manhattan. Garcia Decl. ¶ 1; Flores Decl. ¶ 1. Garcia was initially hired in December 2008 to work as a " counter person, food preparer and delivery person," while Food Trends was still operating as a restaurant. Garcia Decl. ¶ 1. Sometime in 2009, the restaurant closed its " inhouse services and became a full-time catering business." Id. Beginning with the changeover, Garcia worked as a " food preparer and delivery person for the catering business," until his termination in March 2012. Id. Flores was initially hired in June 2006 to work as a delivery person. Flores Decl. ¶ 1. From July 2009 until the end of his employment in March 2014, Flores worked as a " delivery dispatcher and delivery person." Id. Throughout the entire period of his employment, Flores also worked as a " food preparer." Id.
Both Flores and Garcia identify 15 to 16 other employees of Food Trends who were also food preparers or delivery people. See Garcia Decl. ¶ 2; Flores Decl. ¶ 2. They assert that " [a]ll of the cooks and food preparers (including sandwich, pizza, salad, pasta, fruit and cheese preparers) at Food Trends were required to work as delivery persons, and all of the delivery persons were also required to work as food preparers." Garcia Decl. ¶ 2; Flores Decl. ¶ 2.
Garcia asserts that he was paid a fixed salary of $400 per week for all hours worked until 2010. Garcia Decl. ¶ 6. In or about 2010 until his termination, Garcia was paid at an hourly rate of $8.00 for all hours worked. Id. From December 2008 to March 2012, Garcia worked a weekly schedule of 13 hours per day for six days per week. Id. ¶ 4. Garcia asserts he was required to " clock out" at 3:00 p.m. despite regularly working until 6:00 p.m., and he was not compensated for these " off-the-clock" hours worked. Id. ¶ 5. Garcia never received spread-of-hours payments despite routinely working more than 10 hours per day. Id. ¶ 8.
Flores asserts that he worked between 10 and 12 hours per day for five to six days per week for the entirety of his employment with Food Trends. Flores Decl. ¶ 4. He asserts that he was paid a fixed salary of $560 per week for all hours worked until January 2009. Id. ¶ 5. From January 2009 until July 2009, he was paid a fixed salary of $600 per week for all hours worked. Id. From July 2009 until April 2013, he was paid $514.24 per week -- $260 in cash and $254.24 by check. Id.
In May 2013, Flores began to be paid overtime. Id. Until September 2013, Flores was paid at an hourly rate of $11.00 and an hourly overtime rate of $16.50. Id. From September 2013 until October 2013, Flores was paid at an hourly rate of $12.00 and an hourly overtime rate of $18.00. Id. From October 2013 until December 2013, Flores was paid as a tipped employee at a regular hourly rate of $5.65 and an hourly overtime rate of $9.285. Id. ¶ 6. From January 2014 until his termination, Flores was paid at an hourly rate of $5.65 and an hourly overtime rate of $9.66. Id. Flores asserts that prior to May 2013, he was never paid overtime compensation for hours worked over 40 per week, and that he never received any notice informing him that his fixed salary was intended to cover such hours. Id. ¶ 7. Flores also never received spread-ofhours payments despite routinely working more than 10 hours per day. Id. ¶ 8.
Both Garcia and Flores state that, based on personal observations and conversations with other employees, other employees (1) were similarly paid and were required to work similar hours, Garcia Decl. ¶ ¶ 4, 6; Flores Decl. ¶ ¶ 4-6; (2) did not receive overtime compensation for hours worked over 40 per week, Garcia Decl. ¶ 7; Flores Decl. ¶ 7; (3) did not receive spread-ofhours payments even if their workday exceeded 10 hours, Garcia Decl. ¶ 8; Flores Decl. ¶ 8; and (4) did not receive wage and hour notice as required under the NYLL, Garcia Decl. ¶ 9; Flores Decl. ¶ 9. Both Garcia and Flores state that, " [b]ased on [their] personal observations and conversations," they and other tipped employees did not receive notice that defendants were taking a tip credit, notice that all the tips received must be retained by them, notice that the tip credit taken by defendants may not exceed the value of the tips the employees actually received, or any statement as to the amount of tip credit allowance taken by defendants for each payment period. Garcia Decl. ¶ 11; Flores Decl. ¶ 11. Garcia and Flores state that they were both required to engage in " non-tipped related work, such as preparing food, for more than two hours or twenty percent of [their] work time," which was " unrelated to duties as a tipped employee," as were all other tipped employees, " [t]o the best of [their] knowledge." Garcia Decl. ¶ 12; Flores Decl. ¶ 12.
Garcia states that defendants retained " all tips and service charges" that he received from customers. Garcia Decl. ¶ 13. Flores states that he never received any tips until October 2013 because defendants retained all " tips and service charges" that he received from customers and that, after October 2013, defendants retained part of the tips he received from customers. Flores Decl. ¶ 13. Flores states that he was never informed of how tips were distributed among employees and asserts that defendants often kept all of the tips employees received for catering events. Id. Both Garcia and Flores state that defendants did not provide " notice to customers that management was sharing a portion of the mandatory service charges." Garcia Decl. ¶ 13; Flores Decl. ¶ 13. Both of them state that, " [t]o the best of [their] knowledge, it was Defendants' policy to retain tips and service charges received by tipped employees." Garcia Decl. ¶ 13; Flores Decl. ¶ 13.
Defendants have submitted a declaration from Alla Moskowicz, the owner of Food Trends. Moskowicz Decl. ¶ 1. She states that the statements by Garcia and Flores that all cooks and food preparers were required to work as delivery persons and all delivery persons were required to work as food preparers are false. Id. ¶ 5. She also avers that Garcia never made deliveries and that he was a sandwich preparer who worked five days per week and left by 5:00 p.m. every day -- because Food Trends was closed by 5:00 p.m. Id. ¶ 6. Finally, she states that Flores was ...