BARRY W. ASHE, District Judge.
The plaintiff, Gustavo Figueroa II ("Figueroa"), individually and on behalf of other similarly-situated individuals, filed a motion to conditionally certify the FLSA collective and for Court approval of the opt-in notice.
This case arises out of Figueroa's employment with Defendants as a server at Lilette Restaurant.
The following facts are drawn from Figueroa's verified complaint, in which he describes the Defendants' alleged practices and customs during his employment at Lilette from February 7, 2018, through May 3, 2018. At that time, the restaurant had at least 28 employees, which included servers, hostesses, food runners, bussers (busboys), a dishwasher, a polisher, cooks, and managers. Defendants paid the servers on an hourly basis ($2.13 per hour) and allowed the servers to keep only a percentage of the tips they received each shift regardless of whether it was a lunch or dinner shift and no matter how much support staff was working, if any. Per Defendants' policy and procedure, Defendants ordered the servers to share an arbitrary percentage of their tips with the hostesses, food runners, and bussers (who were paid hourly); with the polisher (who was paid only through the tip pool); and with the managers (who were paid salary). Defendants unilaterally determined the amount the servers would contribute after each shift, which differed by the shift. In Figueroa's experience, his tip contribution ranged from 25% to 48% of the tips he earned per shift.
The "side work" consisted of various staging and cleaning tasks, including setting out or storing chairs and tables, and cleaning the restaurant's serveware, restrooms, and dining areas. Figueroa alleges the Defendants did not inform Figueroa that he would be required to perform such work, nor did they pay Figueroa or other servers like him the hourly rate for this work, which was performed before and after each shift.
Figueroa seeks to represent a class of servers who were employed by Lilette in the three years prior to the filing of the complaint and who participated in the tip pool without receiving the full amount of tips earned for each shift or who performed side work without receiving hourly compensation. Figueroa prays for a declaratory judgment finding that Defendants willfully violated the FLSA and Louisiana conversion and unjust enrichment law, and an award of damages for unpaid compensation to all class members, attorney's fees, and costs.
On December 7, 2018, Figueroa filed the instant motion for conditional certification of the proposed FLSA class and court approval of the opt-in notice and procedure.
Defendants do not oppose the conditional certification of the class or the three-year statute of limitations.
Defendants argue that Figueroa's requests are excessive and should be limited in these respects because the potential class is small and accessible.
Finally, Defendants challenge the portion of Figueroa's notice that invites the potential class members to contact Figueroa's counsel for further information. Defendants suggest that the invitation skews the potential class members' objective perception of the litigation, particularly in light of Figueroa's prior communications with certain putative members, in which he referred to Defendants with expletives. If the Court permits such an invitation, Defendants ask to have their own contact information inserted alongside the plaintiff's.
In response, Figueroa proposes some reasonable compromises. As to the collective definition, Figueroa explains that the parenthetical is meant to include others with similar job titles, such as waiters, who should receive notice to join the suit. In lieu of the parenthetical, Figueroa proposes changing the phrase to "servers or waiters." Next, Figueroa concedes that a 60-day opt-in period is appropriate since Defendants have employed only 25 servers in the past three years, 8 of whom currently work for Defendants. Likewise, Figueroa agrees to forgo the posted notice at Lilette so long as Defendants ensure its current employees receive notice, which is feasible via mail, email, or text.
An employee may sue an employer for violating the minimum wage and overtime provisions of the FLSA either individually or as a collective action on behalf of himself or herself and "other employees similarly situated." 29 U.S.C. § 216(b). Unlike a class action under Rule 23 of the Federal Rules of Civil Procedure, which requires putative plaintiffs to opt out, a collective action under § 216(b) binds only those employees who affirmatively "opt in" to the suit. Id. ("No employee shall be a party plaintiff to any such action unless he [or she] gives his [or her] consent in writing to become such a party and such consent is filed in the court in which such action is brought.").
Courts have taken two different approaches to resolve the issue of whether plaintiffs are similarly situated to a proposed class: the spurious class action approach, which originated in Shushan v. University of Colo., 132 F.R.D. 263 (D. Colo. 1990); and the "two-step" approach, as in Lusardi v. Xerox Corp., 122 F.R.D. 463 (D.N.J. 1988). The Fifth Circuit has yet to adopt either test. However, district courts in this circuit have generally applied Lusardi's "two-step" approach, and this Court will follow that jurisprudence. See Guidry v. Target Corp., 2009 WL 1604591 (E.D. La. June 5, 2009); Basco v. Wal-Mart Stores, Inc., 2004 WL 1497709, at *4 (E.D. La. July 2, 2004) (the two-step approach "is the preferred method for making the similarly situated analysis").
The Lusardi two-step approach consists of a "notice stage" and a "decertification stage." Mooney v. Aramco, 54 F.3d 1207, 1213 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). At the notice stage, the court determines, based only on the pleadings and any affidavits that have been submitted, whether the putative collective action members should receive notice of the action. Id. at 1214. "Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in `conditional certification' of a representative class." Id. "At the notice stage, `courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan infected by discrimination.'" Id. at 1214 n.8 (quoting Sperling v. Hoffman-LaRoche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)). If the district court finds that the putative collective action members are similarly situated, it conditionally certifies the class and the putative collective action members are given notice and the opportunity to opt in. Id. at 1214. "The action proceeds as a representative action throughout discovery." Id.
The decertification stage is precipitated when the defendant, after discovery is largely completed and the matter is ready for trial, files a motion to decertify the class. Id. "At this stage, the court has much more information on which to base its decision, and makes a factual determination of the similarly situated question." Id. If the district court finds that the claimants are not similarly situated, it decertifies the class and dismisses without prejudice the opt-in plaintiffs' claims, and the class representatives (i.e., the original plaintiffs) proceed to trial on their individual claims. Id. On the other hand, if the district court finds that the claimants are similarly situated, it allows the representative action to proceed to trial. Id.
Figueroa seeks conditional certification on behalf of two classes of similarly-situated persons under the notice stage of the Lusardi approach. At this first stage, "a plaintiff must show that: `(1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit.'" Tolentino v. C & J Spec-Rent Servs. Inc., 716 F.Supp.2d 642, 647 (S.D. Tex. 2010) (quoting Morales v. Thang Hung Corp., 2009 WL 2524601, at *2 (S.D. Tex. Aug. 14, 2009)). In conducting this inquiry, district courts have considered whether potential plaintiffs were identified, whether affidavits of potential plaintiffs were submitted, and whether evidence of a widespread discriminatory plan was submitted. Lima v. Int'l Catastrophe Sols., Inc., 493 F.Supp.2d 793, 798 (E.D. La. 2007) (citations omitted). "A plaintiff need only demonstrate a reasonable basis for the allegation that a class of similarly situated persons may exist." Id.
Defendants do not oppose Figueroa's request to certify the class.
"[P]otential class plaintiffs are considered `similarly situated' to the named plaintiffs if they are `similarly situated' with respect to their job requirements and with regard to their pay provisions." Tolentino, 716 F. Supp. 2d at 649-50 (quotation omitted). "The positions need not be identical, but similar." Id. at 650 (quotation omitted). Moreover, "[w]hether at the notice stage or on later review, collective action certification is not precluded by the fact that the putative plaintiffs performed various jobs in differing departments and locations." Donahue v. Francis Servs., Inc., 2004 WL 1161366, at *2 (E.D. La. May 24, 2004) (citations omitted). Instead, similarly-situated plaintiffs share some factual nexus which binds them together as victims of a particular alleged policy or practice. Xavier, 585 F. Supp. 2d at 878 (quoting Crain v. Helmerick & Payne Int'l Drilling Co., 1992 WL 91946, at *4-5 (E.D. La. Apr. 16, 1992)). A district court may deny a plaintiff's motion "to proceed collectively only if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice." Tolentino, 716 F. Supp. 2d at 650 (quotation omitted).
In his declaration, Figueroa states that he worked as a server and was not properly paid the amount of tips earned per shift and not paid minimum wage for side work before and after each shift.
Figueroa has made a sufficient showing that other workers would want to opt in to a putative collective action. While no plaintiffs have yet filed a notice of consent to join, Figueroa identifies that another section of this Court has conditionally certified a collective action where the plaintiff named two potential opt-in plaintiffs. Rendon v. Glob. Tech. Sols., LLC., 2015 WL 8042169, at *8-9 (E.D. La. Dec. 4, 2015). However, in Rendon, the plaintiff asserted that those two co-workers "would be interested in joining this lawsuit." Id. at *4-5, *8. There is no such assertion here, where Figueroa has merely identified seven potential opt-in plaintiffs.
Figueroa originally proposed defining the collective as "[a]ll persons who are or have been employed by Lilette as servers (or other job titles performing similar duties)."
The Court agrees with Figueroa's revision. Figueroa's verified complaint and declaration consistently refer to the aggrieved workers as "servers,"
While Figueroa originally requested a 90-day opt-in period due to the high turnover rates in the restaurant industry, Defendants urge that the Court adopt a 45- or 60-day period in light of the small, 25-person potential class. Figueroa agrees that a 60-day period will suffice to provide notice.
Sixty-day periods are commonly approved for FLSA actions brought in this district. Murillo v. Gomez Drywall Contractors Inc., 2018 WL 3928182, at *3 (E.D. La. Aug. 16, 2018) (approving 60-day period); Sandlin v. Grand Isle Shipyard Inc., 2018 WL 2065595, at *12 (E.D. La. May 3, 2018) (60 days); White v. Integrated Electronic Techs. Inc., 2013 WL 2903070, at *11 (E.D. La. June 13, 2013) (60 days); Marshall v. State of La., 2016 WL 279003, at *12 (E.D. La. Jan. 22, 2016) (approving 45-day opt-in period in the absence of proof that potential plaintiffs have dispersed or will be hard to locate). Because nearly one-third of the potential class remains currently employed by Defendants, and because the notice procedure outlined below should ensure fair opportunity for potential members to opt in, the Court finds that a 60-day period is adequate to provide all potential claimants notice and opportunity to opt in.
The parties agree that notice is appropriate via U.S. mail, email, and text message. Figueroa no longer insists upon posting the written notice in Lilette's restaurant, so long as current employees are notified by the previous means. The parties further agree on an electronic consent form. However, the parties disagree as to whether a follow-up notice should issue.
Defendants suggest including language in the initial notice for the recipient to notify the sender that notice has been received, by texting or emailing in reply. Upon receipt of confirmation, Defendant posits, there would be no further communication with the recipient, unless and until the plaintiff opts in. Figueroa agrees that the notice should include language enabling any recipient to notify the sender that he or she (a) received the notice and (b) does not want to receive future notice. But, Figueroa wants the decision about the precise phrasing of the notice to be joint with Defendants and still insists upon sending a follow-up notice to all potential plaintiffs who do not respond that they do not wish to be contacted.
While reminder notices have been ordered by a court in this circuit, several courts have found follow-up notices unnecessary. Compare White, 2013 WL 2903070, at *9 (permitting a follow-up notice where the plaintiffs bore the cost), with Richard v. Flower Foods, Inc., 222 F.Supp.3d 516, 527 (W.D. La. Nov. 28, 2016) (denying a series of two reminder notices in favor of posting notice at place of employment), and Roberts v. S. B. S. Welding, LLC, 2015 WL 8773610, at *3 (N.D. Tex. Dec. 15, 2015) (finding reminder notices unnecessary and potentially misconstrued as an encouragement by the court to opt in). In Gremillion v. Cox Communications Louisiana, the court would not issue a follow-up notice unless the plaintiff showed good cause or the parties agreed to a reminder. 2017 WL 2688217, at *5. The Court finds Gremillion persuasive and will not order a reminder notice, unless Figueroa later shows good cause or the parties agree to the reminder.
Figueroa contends that dates of birth and the last four digits of putative class members' social security numbers will aid notification in the event a letter is returned as undeliverable or an email bounces back. While Figueroa concedes that he does not need this information from current employees of Lilette, Figueroa requests it for former employees who do not respond that they have received notice. Defendants oppose disclosing this information because it is invasive of the privacy of individual employees.
The disclosure of dates of birth and the last four digits of social security numbers raises significant privacy and security concerns that outweigh the plaintiff's risk of failing to contact the potential class in this case, where notice will be provided via mail, email, and text message. See White, 2013 WL 2903070, at *10 (persons will be unlikely to change email addresses when they change residences); Dyson v. Stuart Petroleum Testers, Inc., 308 F.R.D. 510, 516 (W.D. Tex. 2015) (same as to cell phone numbers). Accordingly, until good cause is shown, Defendants will not be required to disclose former employees' dates of birth and partial social security numbers. However, as Defendants have agreed, they will provide Figueroa with the names, last known addresses, emails, and cell phone numbers of all known members of the putative class.
Figueroa submits proposed notices to be sent by U.S. mail, text, and email to putative collective action members and asks the Court to allow plaintiffs to execute their consent forms online using electronic signatures.
Defendants challenge language in the proposed notices that invites potential collective action members to contact the plaintiff's counsel for further information. Defendants rely on Jaso v. Bulldog Connection Specialists LLC, 2015 WL 11144603, at *6-7 (S.D. Tex. Oct. 15, 2015), where the court actually enjoined
The standard for limiting counsel communications with potential class members was articulated by the United States Supreme Court in Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). The Supreme Court reversed the district court's order prohibiting defense counsel from communicating with the potential class. The Supreme Court held that "an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties," reasoning that orders should "limit speech as little as possible, consistent with the rights of the parties under the circumstances." Id. at 100, 102.
"As commercial speech, ex parte communications tending to discourage absent class members from joining the suit may be limited by orders grounded in good cause and issued with a heightened sensitivity for First Amendment concerns. Courts examine four criteria to determine good cause in this context: the severity and likelihood of the perceived harm, the precision with which the order is drawn, the availability of a less onerous alternative, and the duration of the order." Belt v. Emcare, Inc., 299 F.Supp.2d 664, 668 (E.D. Tex. Dec. 18, 2003) (citing Kleiner v. First Nat'l Bank, 751 F.2d 1193, 1203 (11th Cir. 1985)). Furthermore, the movant for an order restricting communications in a putative FLSA collective action must demonstrate "(1) that a particular form of communication has occurred or is threatened to occur, and (2) that the particular form of communication at issue is abusive and threatens the proper functioning of the litigation." Jaso, 2015 WL 11144603, at *6 (citations and quotation omitted).
In requesting a limitation on plaintiff counsel's communications with potential members of the collective action, Defendants point to Figueroa's previous texts to former Lilette employees in which he used expletives to refer to one of the Defendants and arguably mischaracterized the nature of the lawsuit. Defendants suggest that Figueroa's prior communications with potential class members have tainted any communication they might have with plaintiff's counsel. However, Figueroa's exercise of his First Amendment right to speech does not impel the Court to restrict the putative class members' contact with Figueroa's counsel, especially absent any showing that communication with plaintiff's counsel has been or will be abusive or threatens the proper functioning of the litigation. "The mere possibility of abuses does not justify routine adoption of a communications ban." Garcia v. TWC Admin., LLC, 2015 WL 1737932, at *4 (W.D. Tex. Apr. 16, 2015) (quotation omitted). Potential collective action members might have questions or require information about the lawsuit,
Figueroa has not indicated whether he would object to including the defense counsel's contact information in the section of the notice inviting contact for "further information." Therefore, the parties will confer and submit proposed notices to the Court. See Marshall, 2016 WL 279003, at *12-13.
Accordingly, for the foregoing reasons,
IT IS ORDERED that Figueroa's motion to conditionally certify the class (R. Doc. 22) is GRANTED, except that the definition of the class is limited to "servers or waiters."
IT IS FURTHER ORDERED that pursuant to 29 U.S.C. § 216:
B. Within fourteen (14) days of the date of this Order & Reasons, Defendants shall provide to plaintiff's counsel the names, last-known addresses, email addresses, and telephone numbers (including known cell phone numbers) of all putative collective action members;
C. Figueroa's proposed written notices to putative collective action members are approved except as to the section of the notices inviting contact for "further information." The parties shall meet and confer and submit joint revised notices within ten (10) days of the date of this Order. If the parties are unable to agree on forms of notice, the parties shall each submit (1) their own proposed notices and (2) their objections, with supporting authority, to the opposing party's notices, within ten (10) days of this Order, and request an expedited status conference on the matter.
