through October 16, 2022, filed a collective action on behalf of himself and all current and former front-of- the-house tipped employees (captains, assistants, bartenders, bussers, runners, and servers) employed at the Boathouse within the last six years. The plaintiff sought to recover unpaid wages (including overtime) due to an invalid tip credit policy, unreimbursed costs for maintenance of uniforms, and unpaid wages due to improper meal credit deductions in violation of the FLSA and the New York Labor Law (NYLL), as well as failure to provide proper wage statements under the NYLL. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion. The plaintiff claimed that he was regularly scheduled to work seven hours a day, five days per week, but also regularly worked two or three double-shifts per week, totaling approximately 49 to 56 hours worked per week. Id. at *4. The plaintiff ’ s declaration included a list of the first (but not last) names of six other servers also allegedly scheduled to work similar hours and shifts, and he claimed there were additional names of other workers as well. Id. The plaintiff asserted that the Boathouse paid tipped front-of-the-house employees tip-credited wages without providing them notice that tip credits would be taken against their wages. Id. at *5-6. The complaint claimed the Boathouse thus paid the tipped employees below the New York minimum and overtime rate based on the tip credit, and attached paystubs generated between 2016 and 2020 confirming such rates. Id. The plaintiff claimed he personally observed and discussed the Boathouse paying below the required minimum amounts with named and unnamed co-workers. The complaint also alleged the Boathouse maintained a tip credit policy despite requiring tipped workers spend more than 20% of their total weekly hours performing non-tipped work and required the workers to maintain their own uniforms without proper cost reimbursement to offset cleaning costs. Id. at *6. Finally, the plaintiff alleged the restaurant improperly deducted meal credits from wages of all tipped front-of-house employees for meals that often made co-workers sick and often consisted of unsold chicken and seafood leftovers. The court noted that case law authorities in the Second Circuit have “routinely” granted conditional certification of a FLSA collective action based on a single plaintiff ’ s affidavit when the employee establishes that other co- workers were subjected to similar pay practices. The court stated that the plaintiff satisfied his minimal burden of showing he was “similarly-situated” to the proposed collective action members. The court found that the plaintiff set forth a factual basis for his claims of common policies violating the FLSA, i.e. , specifically, policies “depriving tipped front-of-house workers of wages, failing to reimburse workers for uniform maintenance, and deducting improper meal credits.” Id. at *15. The court agreed with the Boathouse that because two of the job positions the plaintiff sought to include in his proposed collective action (captains and assistants) did not actually exist at the restaurant while it was owned and operated by the defendants, those positions should not be included in the scope of the collective action. Id. Accordingly, the court granted the plaintiff ’ s motion for conditional certification of a collective action. Another single-declaration case that resulted in conditional certification is Lagunas, et al. v. La Ranchera, Inc., 2023 U.S. Dist. LEXIS 149827 (S.D. Tex. Aug. 25, 2023). The plaintiff, a driver and sales representative, filed a collective action alleging that the defendant failed to pay overtime wages and made improper wage deductions in violation of the FLSA. The plaintiff filed a motion for conditional certification of a collective action, and the court granted the motion. The plaintiff offered his own declaration in support of his motion. The declaration averred that all drivers had common job descriptions, and that they were all subject to the same policies and procedures imposed by the defendant, which resulted in denial of overtime compensation. The court noted that despite a minor distinction in the payment provisions of their employment agreements, the drivers shared many essential similarities in their agreements and job responsibilities, including requirements to keep clean and well-maintained delivery vehicles, adhering to certain performance standards, following pricing and customer requirements set by the defendant, and displaying the company ’ s signs on their vehicles. The court determined that the plaintiff made the requisite showing necessary to establish that he was similarly-situated to the proposed collective action members for purposes of conditional certification. For these reasons, the court granted the plaintiff ’ s motion. Similarly, in Kenan, et al. v. Global Payments, Inc., 2023 U.S. Dist. LEXIS 104461 (M.D. Ga. June 15, 2023), the plaintiffs, two Remote Fraud Specialists (RFSs), filed a collective action alleging that the defendant failed to pay for time spent booting up their computer systems before work, and thereby failed to pay overtime compensation in violation of the FLSA. The plaintiffs filed a motion to conditionally certify the
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© Duane Morris LLP 2024
Wage & Hour Class And Collective Action Review – 2024
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