United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE
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. Â§' 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.
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.
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.
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.
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.
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.
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.
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.
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.
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. 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. See id. ¶ 10.
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. 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.
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.
STANDARDS FOR CONDITIONAL CERTIFICATION
claims may be pursued collectively pursuant to 29 U.S.C.
§ 216(b), which provides that an action to recover
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 ...