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Perez v. La Abundancia Bakery & Restaurant Inc.

United States District Court, E.D. New York

August 4, 2017

ABRAHAM PÉREZ, et al., Plaintiffs,
v.
LA ABUNDANCIA BAKERY & RESTAURANT INC., et al., Defendants.

          MEMORANDUM AND ORDER

          ROANNE L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiffs Abraham Pérez, Mardo Queho Perez Mendoza and Belen Solano (“plaintiffs”) bring this putative collective action against defendants La Abundancia Bakery & Restaurant Inc., 63-12 La Abundancia Inc., 75-02 La Abundancia Bakery and Restaurant Corp., 81-16 La Abundancia Inc., 37-01 La Abundancia Inc., 94-19 La Abundancia Inc., 88-26 La Abundancia Inc., and Rubén Rojas (collectively, “defendants”), asserting claims under the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. §' 201 et seq., and New York Labor Law (“NYLL”), for unpaid overtime and minimum wages. Currently pending before this Court is plaintiffs' motion for court-supervised notice to putative collective action members, pursuant to 29 U.S.C. § 216(b), and for disclosure of identifying information of potential collective action members. See Motion to Certify FLSA Collective Action (June 2, 2017) (“Pl. Motion”), Electronic Case Filing Docket Entry (“DE”) #35. For the reasons set forth below, the Court grants in part the application for court-supervised notice, authorizing (in the form approved herein) notice to employees, or former employees, who worked as waiters, bussers, prep cooks, dishwashers or kitchen workers between February 5, 2014 and May 2015, for certain restaurants of defendants.

         BACKGROUND

         Plaintiffs allege that individual defendant Rubén Rojas owns and controls six restaurants located in Queens, New York, all of which are named “La Abundancia Restaurant & Bakery.” See Complaint (Feb. 5, 2017) (“Compl.”) ¶ 83, DE #1. As set forth on the website laabundanciabakery.com, the parties refer to: the restaurant located at 63-10 Broadway Avenue, Woodside, NY, as La Abundancia #1; the restaurant located at 75-02 Roosevelt Avenue, Jackson Heights, NY, as La Abundancia #2; the restaurant located at 81-16 Roosevelt Avenue, Jackson Heights, NY, as La Abundancia #3; the restaurant located at 37-01 Junction Boulevard, Corona, NY, as La Abundancia #4; the restaurant located at 94-19 Roosevelt Avenue, Jackson Heights, NY, as La Abundancia #5; and the restaurant located at 88-26 37thAvenue, Jackson Heights, NY, as La Abundancia #6. See id. ¶ 86; Website Pages (attached as Ex. B to Reply to Response to Motion (June 23, 2017) (“Pl. Reply”), DE #44), DE #44-2.

         Plaintiffs allege that they are current or former restaurant workers employed by defendants, which had a policy and pattern of failing to pay minimum wage for all hours worked up to 40 hours per workweek and failing to pay an overtime premium of one and one-half the employee's hourly rate for all hours worked beyond 40 hours per workweek. See Compl. ¶¶ 71, 72, 74. Plaintiffs further allege that defendants did not have a system in place to track their employees' hours and failed to provide plaintiffs with accurate wage statements. See id. ¶¶ 10, 16, 22, 87, 97; see also Declaration of Abraham Pérez (June 2, 2017) (“Pérez Decl.”) ¶ 6, DE #38; Declaration of Isabel Ocampo (attached as Ex. C to Declaration of Jacob Aronauer (June 2, 2017) (“Aronauer Decl.”), DE #37) (“Ocampo Decl.”) ¶ 12; Declaration of Juan David Serna (attached as Ex. C to Aronauer Decl.) (“Serna Decl.”) ¶ 9; Declaration of Jasmin Vargas Tavares (attached as Ex. C to Aronauer Decl.) (“Tavares Decl.”) ¶ 11.

         According to the complaint, each of defendants' restaurants employs approximately 10 waiters, 2 bussers, 2 prep cooks and 2 dishwashers. See Compl. ¶ 69. Each waiter was assigned to eight-hour shifts; however, each shift lasted approximately half an hour longer because, at the end of the eight-hour shift, the waiters were required to clean the area to which they were assigned and to provide an accounting of the customers they served. See id. ¶ 90. Waiters were usually assigned to work five or six days per week and were sometimes required to work two eight-hour shifts in one day. See id. ¶ 92. Throughout the course of their employment, waiters were typically assigned to work at more than one of the La Abundancia restaurants. See id. ¶ 93. Waiters were paid $55 to $65 per shift regardless of how many hours they worked per week and were not paid time and one-half for overtime work. See Id. ¶¶ 94-96.

         Bussers, prep cooks, dishwashers and kitchen workers were likewise assigned to work eight-hour shifts, five or six days per week. See id. ¶¶ 99, 101. These employees were assigned to perform a variety of duties interchangeably. For example, a “busser” might be assigned to work in the kitchen as a prep cook. See id. ¶ 98. These employees were paid a weekly salary and would not receive time and one-half for all overtime hours. See Id. ¶¶ 102-03. However, starting in May 2015, after an earlier FLSA action against defendants was filed by other employees in early March 2015, see Ocampo v. La Abundancia Bakery, Inc., 15-cv-1134 (PK) (the “Ocampo action”), defendants stopped requiring plaintiffs to work more than 40 hours per week. See Compl. ¶¶ 111-12, 120-21, 130.

         In the complaint, plaintiff Mendoza alleges that he worked for defendants from August 2011 through December 2016 as a dishwasher and cook at La Abundancia #2. See Compl. ¶¶ 13, 14, 113. He worked one eight-hour shift per day and was paid in cash. See Id. ¶¶ 114, 116. He further alleges that he frequently was required to work more than forty hours per week but was not compensated for the overtime he worked. See id. ¶ 119.

         Plaintiff Solano alleges that she worked as a waitress and cashier at La Abundancia #1 and La Abundancia #2 from April 2008 until August 28, 2016, although she was on maternity leave from approximately August 2014 through May 2015. See id. ¶¶ 19, 20, 122. Solano worked one eight-hour shift per day and was paid in cash. See id. 123, 125. Solano further alleges that she was not compensated for overtime hours worked from 2008 through July 2014 and was denied minimum wages from June 2015 through August 28, 2016. See id. ¶¶ 128, 129.

         In support of the instant motion, plaintiff Pérez has submitted a declaration describing his employment with defendants. Pérez has worked as a dishwasher and cook at La Abundancia #2 from July 2011 through the present. See Pérez Decl. & 1; see also Compl. ¶¶ 8, 104. Pérez generally worked one eight-hour shift per day, six days per week, from 2011 until May 2015. See Pérez Decl. ¶¶ 3, 5; see also Compl. ¶¶ 105, 112. Pérez worked more than 40 hours each week during that period, but was not paid for any hours worked in excess of 40 hours per week. See Pérez Decl. ¶ 8; see also Compl. ¶ 110. Pérez asserts that “[m]any other employees at La Abundancia locations . . . complained about their wages and also not being paid overtime.” See Pérez Decl. ¶ 10. Pérez specifically identifies his wife, Isabel Ocampo, who worked as a waitress at La Abundancia #2 and La Abundancia #3; his brother, plaintiff Mendoza, who worked as a dishwasher and cook at La Abundancia #2; and plaintiff Solano, who worked as a waitress and cashier at La Abundancia #1, as those who complained to him that they were not paid for any hours worked in excess of 40 per week. See id. ¶ 11.

         Plaintiffs have additionally submitted the declaration of Ms. Ocampo, which was previously filed in the Ocampo action, by the same plaintiffs' counsel. Ms. Ocampo worked as a waitress at La Abundancia #2 and La Abundancia #3 from August 2011 until January 2015. See Ocampo Decl. ¶¶ 5, 6. On average, Ms. Ocampo worked one eight-hour shift, six days per week, and was paid $55 for each shift. See id. ¶¶ 9, 13, 24. At the end of each shift, Ms. Ocampo was required to account for the money she collected during the shift and to clean her tables, which took approximately half an hour. See id. ¶ 10. On some occasions, Ms. Ocampo was assigned to work two shifts in one day. See id. ¶¶ 22, 23. From October 2012 until January 2015, Ms. Ocampo worked, on average, 51 hours per week. See id. ¶ 25. Ms. Ocampo was not paid an overtime premium for those hours she worked in excess of 40 hours per week. See id. ¶ 15.

         In addition, plaintiffs have submitted the declaration of Juan David Serna, who was also a plaintiff in the Ocampo action, and who worked at La Abundancia #2 and La Abundancia #3 as a busser, dishwasher and prep cook from August 2013 until October 2014.[1] See Serna Decl. ¶¶ 5, 6. Mr. Serna worked eight-hour shifts, six days per week, but would often work an additional three hours after his shift or two eight-hour shifts per day. See id. ¶¶ 8, 17, 18, 19, 20. On average, Mr. Serna worked 79 hours per week. See id. ¶ 21. Throughout Mr. Serna's employment, he was paid $10 per hour in cash regardless of how many hours he worked per week and was not paid an overtime premium for those hours worked that exceeded 40 each week.[2] See id. ¶ 10.

         Finally, plaintiffs have offered the declaration of Jasmin Vargas Tavares, who was another plaintiff in the Ocampo action, and who worked as a waitress at La Abundancia #2, La Abundancia #3 and La Abundancia #4, from January 2012 until June 2014.[3] See Tavares Decl. ¶¶ 5, 6. Like Ms. Ocampo, Ms. Tavares worked, on average, eight-hour shifts, six days per week, and was paid $55 in cash for each shift. See id. ¶¶ 8, 12, 23. Occasionally, she worked two shifts in one day. See id. ¶¶ 21, 22. At the end of each shift, Ms. Tavares was required to account for the money she collected during the shift and to clean her tables, which took approximately half an hour. See id. ¶ 9. Ms. Tavares worked, on average, 51 hours per week, but was not paid an overtime premium for hours worked in excess of 40 hours per week. See id. ¶¶ 14, 24.

         In response to plaintiffs' motion, defendants have submitted the declaration of individual defendant Rubén Rojas. See Declaration of Rubén Rojas (June 17, 2017), DE #41. In his declaration, Rojas admits that he is or has been a shareholder of each of the corporate defendants, each of which owns and operates a different restaurant. See id. ¶¶ 2, 3. However, Rojas states that he does not determine the specific hours or rates of pay of individual employees, or otherwise “get involved in the day to day decisions of the managers of the different restaurant/bakeries . . . .” See id. ¶ 3.

         DISCUSSION

         I. STANDARDS FOR CONDITIONAL CERTIFICATION

         FLSA claims may be pursued collectively pursuant to 29 U.S.C. § 216(b), which provides that an action to recover unpaid wages:

may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and ...

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