United States District Court, S.D. New York
OPINION AND ORDER
NETBURN, UNITED STATES MAGISTRATE JUDGE
31, 2017, Plaintiff Dharm Raj Joshi filed this action,
alleging that Defendants did not properly compensate him and
other employees in accordance with the Fair Labor Standards
Act (the “FLSA”) and the New York Labor Law. The
Honorable Andrew L. Carter, Jr. subsequently referred this
matter to my docket for general pretrial supervision. On
December 22, 2017, Joshi filed a motion to conditionally
certify this case as a representative collective action
pursuant to 29 U.S.C. § 216(b). For the reasons that
follow, Joshi's motion for conditional certification is
own and operate restaurants under the name “Saravanaa
Bhavan, ” with two locations in Manhattan and another
on Long Island. Am. Compl. ¶¶ 2-5, 7, 30; Joshi
Decl. ¶ 2. Joshi worked only at Defendants'
Manhattan locations from August 15, 2015, to December 31,
2016. Joshi Decl. ¶ 1. Throughout his employment with
Defendants, Joshi allegedly spent half of each shift in the
front of the restaurant taking orders, delivering food to
tables, taking payments from customers, and cleaning tables;
and he spent the other half in the kitchen plating food and
packing delivery orders. Id. ¶¶ 5-7. Joshi
claims that he was not paid the full statutory minimum wage
for his work. Id. ¶ 11. Joshi also alleges that
he frequently worked more than 40 hours per week but was not
paid one-and-one-half times the statutory minimum wage for
time worked in excess of 40 hours. Id. ¶¶
9-12. He does not recall being notified that Defendants would
apply a tip credit to his wages. Id. ¶ 13. In
addition, Joshi asserts that employees were required to
participate in a tip pool and that Defendants retained 5% of
the tips employees received. Id. ¶¶ 14-15.
Finally, Joshi alleges that managers at Defendants'
restaurants frequently clocked in employees after they began
working and clocked them out before their shifts ended.
Id. ¶ 16.
moves, under 29 U.S.C. § 216(b), for conditional
certification of a collective consisting of:
Current and former employees of Defendants who, at any time
within three years prior to filing date of this Collective
and Class Action Complaint through the date of final
disposition (“Collective Period”), worked for the
Defendants as non-exempt Tipped Workers or Restaurant
Employees and were subject to Defendants' policy and
pattern or practice of failing to properly pay minimum wages
for all hours worked up to the first 40 hours worked and
overtime premium for all hours worked beyond 40 per week and
who elect to opt into this litigation.
Am. Compl. ¶ 163. Joshi's proposed notice of
pendency alternatively defines the collective as any
“server, server assistant, back waiter, busser, runner,
bartender, bar back, and/or other tipped employee or any
other non-exempt food preparer or cook for the Defendant at
any time from July 31, 2011 to the present, ” who
worked in the two Manhattan locations or the Long Island
location. Kumar Aff., Ex. 4.
purposes of this motion, the Court focuses only on
Joshi's two federal claims. First, Joshi claims that
Defendants violated the FLSA by paying him and similarly
situated employees at a federal tipped minimum wage rate
while also distributing a portion of their tips to workers
who do not “customarily and regularly” retain
tips in violation of 29 U.S.C. § 203(m). Am. Compl.,
First Cause of Action. Second, Joshi claims that that Defendants
violated the FLSA by failing to pay employees at a rate of
one-and-one-half times their regular rate of pay for all
hours worked in excess of 40. Am. Compl., Second Cause of
support of his motion, Joshi filed a single declaration
stating that he personally observed that other waiters were
required to split their time between front-of-house and
back-of-house work and that he spoke with approximately 13
other employees about their work and compensation. Joshi
Decl. ¶¶ 5, 17. During his employment with
Defendants, Joshi purportedly spoke with approximately 10
tipped employees on an almost “weekly basis concerning
[their] work and pay.” Id. ¶ 17. In
September or October 2017 (nine months after he stopped
working for Defendants, and two months after filing his
complaint), Joshi spoke with a waiter named Farukh and
another waiter known by the nickname “Chinna, ”
both of whom worked at Defendants' Manhattan locations.
Id. And nearly a year after leaving Defendants'
employ, Joshi spoke with an employee named Krishna, who
worked at Defendants' Long Island location. Id.
Joshi does not describe at all what was said during any of
these conversations. He provides no information regarding
these employees' schedules, rates of pay, hours worked,
or their experience with any tip pooling. He concludes by
stating: “I know that [these employees] worked similar
hours as I did, had similar duties, were not paid minimum
wage, were not properly paid overtime compensation, nor were
they allowed to retain all their tips.” Id.
FLSA permits employees to create a collective by opting-in to
a backpay claim brought by a similarly situated
employee.” Glatt v. Fox Searchlight Pictures,
Inc., 811 F.3d 528, 540 (2d Cir. 2016) (citing 29 U.S.C.
§ 216(b)). “The unique FLSA collective differs
from a Rule 23 class because plaintiffs become members of the
collective only after they affirmatively consent to join
it.” Id. Certifying a FLSA collective is a
two-step process. “The first step involves the court
making an initial determination to send notice to potential
opt-in plaintiffs who may be ‘similarly situated'
to the named plaintiffs with respect to whether a FLSA
violation has occurred.” Myers v. Hertz Corp.,
624 F.3d 537, 555 (2d Cir. 2010). “At the second stage,
the district court will, on a fuller record, determine
whether a so-called ‘collective action' may go
forward by determining whether the plaintiffs who have opted
in are in fact ‘similarly situated' to the named
plaintiffs.” Id. “The action may be
‘de-certified' if the record reveals that they are
not, and the opt-in plaintiffs' claims may be dismissed
without prejudice.” Id.
first step, plaintiffs must “make a ‘modest
factual showing' that they and potential opt-in
plaintiffs ‘together were victims of a common policy or
plan that violated the law.'” Id. (quoting
Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261
(S.D.N.Y. 1997)). “The ‘modest factual
showing' cannot be satisfied simply by ‘unsupported
assertions, ' but it should remain a low standard of
proof because the purpose of this first stage is merely to
determine whether ‘similarly situated'
plaintiffs do in fact exist.” Id. (citations
omitted) (quoting Dybach v. State of Fla. Dep't of
Corr., 942 F.2d 1562, 1567 (11th Cir. 1991);
Hoffmann, 982 F.Supp. at 261).
single affidavit from a single plaintiff may suffice”
in meeting this burden. Murray v. City of New York,
No. 16-CV-8072 (PKC), 2017 WL 3531552, at *5 (S.D.N.Y. Aug.
16, 2017). But the “plaintiff cannot simply state his
belief that others are similarly situated based on
conversations with or observations of those other potential
opt-in members; rather, he must supply additional detail
regarding the particular conversations or observations
substantiating that belief.” Fu v. Mee May
Corp., No. 15-CV-4549 (KPF), 2016 WL 1588132, at *2
(S.D.N.Y. Apr. 20, 2016); accord Huertero-Morales v.
Raguboy Corp., No. 17-CV-2429 (JCF), 2017 WL 4046337, at
*3 (S.D.N.Y. Sept. 12, 2017); Murray, 2017 WL
3531552, at *5; Mata v. Foodbridge LLC, No.
14-CV-8754 (ER), 2015 WL 3457293, at *4 (S.D.N.Y. June 1,
2015); Sanchez v. JMP Ventures, LLC, No. 13-CV-7264
(KBF), 2014 WL 465542, at *2 (S.D.N.Y. Jan. 27, 2014).
“Although plaintiffs' burden at this stage is
‘modest, ' ‘it is not non-existent, ' and