PATRICK MICHAEL DUFFY, District Judge.
This matter is before the Court on Plaintiff Briana Lynch and Plaintiff Jacob Hyde's Motion, on behalf of themselves and all others similarly situated ("Plaintiffs"), for Conditional Class Certification ("Motion") pursuant to the collective action provision of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b) (ECF No. 19). For the reasons set forth herein, Plaintiffs' Motion is granted in part and denied in part.
On February 9, 2015, Plaintiffs commenced this action on behalf of themselves and others similarly situated, seeking unpaid minimum wages and unpaid overtime wages pursuant to the FLSA. The named Plaintiffs, as well as those who have subsequently given notice of their consent to join this action, are current or former employees of Defendant Dining Concepts Group, LLC, doing business as Wicked Tuna ("Wicked Tuna"). Plaintiffs seek recovery from Wicked Tuna, Sandeep Patel, and Erez Sukarchi (collectively "Defendants").
Plaintiffs primarily allege that Defendants used a tip pool that violated the FLSA. Plaintiffs assert that Defendants paid some of their employees an hourly wage lower than the statutory minimum wage using the FLSA's Tip Credit provision, 29 U.S.C. § 203(m). Plaintiffs further assert that while Defendants were paying Plaintiffs less than the statutory minimum wage using the FLSA's Tip Credit provision, Defendants required Wicked Tuna employees to contribute a portion of their net sales to Defendants' tip pool to compensate other employees, as well as paying Defendants a $1.00 breakage fee each work day. Additionally, Plaintiffs allege that some of the employees who received money from the tip pool were back-of-the-house employees
Defendants deny that the tip pool and breakage fees violated the FLSA because Plaintiffs were not required to remit tips into the tip pool. Instead, Defendants assert that Plaintiffs were only required to remit a percentage of their net sales into the tip pool. As a result, Defendants allege that because no tips were remitted into the tip pool, there can be no violation of the FLSA. Additionally, Defendants assert that Plaintiffs have submitted insufficient evidence to: (1) show that they were required to remit tips into a tip pool; (2) show that Defendants made illegal deductions from Plaintiffs' pay; and (3) distinguish between back-of-the-house employees who were entitled to share in the tip pool and back-of-the-house-employees who were not.
On April 7, 2015, Plaintiffs filed a Motion for Conditional Certification. Defendants then filed a Motion for Extension to File a Response on April 22, 2015. Plaintiffs responded in opposition to Defendants' Motion for Extension on April 24, 2015. On April 29, 2015, the Court granted Defendants' Motion for an Extension while tolling the statute of limitations during the extension period.
Under the FLSA, plaintiffs may institute a collective action against their employer on behalf of themselves and similarly situated employees. The FLSA's collective action provision states that:
29 U.S.C. § 216(b). The mechanism outlined in § 216(b) is designed to facilitate the efficient adjudication of similar claims by "similarly situated" employees, permitting the consolidation of individual claims and the pooling of resources in prosecuting such actions against their employers. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); LaFleur v. Dollar Tree Stores, Inc., 30 F. Supp. 3d. 463, 467 (E.D. Va. 2014), reconsideration denied, 2014 WL 2121563 (E.D. Va. May 20, 2014), and motion to certify appeal denied, 2014 WL 2121721 (E.D. Va. May 20, 2014); Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 367 (S.D.N.Y. 2007). In deciding whether the named plaintiffs in an FLSA action are "similarly situated" to other potential plaintiffs, courts generally employ a two-stage approach.
The first step in this process, which is the subject of the instant Motion, is the "notice," or "conditional certification," stage. Purdham, 629 F. Supp. 2d at 547. Here, "a plaintiff seeks conditional certification by the district court in order to provide notice to similarly situated plaintiffs" so that they can "opt-in" to the collective action. Pelczynski, 284 F.R.D. at 367-68. With regard to this notice phase, "[t]he Supreme Court has held that, in order to expedite the manner in which collective actions under the FLSA are assembled, `district courts have discretion[,] in appropriate cases[,] to implement . . . § 216(b) . . . by facilitating notice to potential plaintiffs.'" Purdham, 629 F. Supp. 2d at 547 (quoting Hoffman-La Roche, Inc., 493 U.S. at 169). At this stage, the court reviews the pleadings and affidavits to determine whether the plaintiff has carried his burden of showing that he is similarly situated to the other putative class members. Pelczynski, 284 F.R.D. at 368; Purdham, 629 F. Supp. 2d at 547-48. "Because the court has minimal evidence, this determination is made using a fairly lenient standard," Steinberg v. TQ Logistics, Inc., No. 0:10-cv-2507-JFA, 2011 WL 1335191, at *1 (D.S.C. Apr. 7, 2011), requiring plaintiffs to make a "a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law," Purdham, 629 F. Supp. 2d at 548. If the court determines that the proposed class members are similarly situated, the court conditionally certifies the class. Steinberg, 2011 WL 1335191, at *1. The putative class members are then notified and afforded the opportunity to "opt-in," and the case proceeds as a representative action throughout discovery. Id. (citing Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005)); see Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1530 (2013) (citation omitted) ("`[C]onditional certification' does not produce a class with an independent legal status, or join additional parties to the action. The sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court." (citing § 216(b))).
Second, after the court has conditionally certified the class, the potential class members have been identified and notified, and discovery has been completed, "a defendant may then move to decertify the collective action, pointing to a more developed record to support its contention that the plaintiffs are not similarly situated to the extent that a collective action would be the appropriate vehicle for relief." Pelczynski, 284 F.R.D. at 368. At this optional "decertification stage," the court applies a heightened fact-specific standard to the "similarly situated" analysis. Steinberg, 2011 WL 1335191, at *2; see Pelczynski, 284 F.R.D. at 368. "Courts have identified a number of factors to consider at this stage, including (1) disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendants that appear to be individual to each plaintiff; and (3) fairness and procedural considerations." Curtis, 2013 WL 1874848, at *3 (internal quotation marks omitted). If the court determines that the plaintiffs are not, in fact, similarly situated, it may decertify the class, dismiss the opt-in plaintiffs' claims without prejudice, and permit the named plaintiffs to proceed on their individual claims. Id.
Plaintiffs specifically request that this Court enter an Order: (1) conditionally certifying a class of individual restaurant employees ("Proposed Class"), as detailed further herein; (2) requiring Defendants to produce the names, addresses, telephone numbers, email addresses, and dates of employment for all members belonging to the Proposed Class; (3) authorizing Plaintiffs' counsel to send a court approved notice to members of the Proposed Class by both U.S. Mail and email; (4) authorizing Plaintiffs' counsel to send a text message containing a reduced notice to any member of the Proposed Class whose notice sent by U.S. Mail is returned as undeliverable; and (5) authorizing Plaintiff's counsel to post a laminated notice, with an adjacent envelope containing consents, in a communal area within Wicked Tuna. The Court will address each request in turn, along with Defendants' objections thereto.
Plaintiffs move to conditionally certify the following Proposed Class:
(Pls.' Mem. Supp. Mot. for Conditional Class Certification, ECF No. 19-1, at 4.)
Defendants assert that Plaintiffs have not produced sufficient evidence to meet the burden of class certification because "[p]laintiffs have failed to establish that Wicked Tuna had a common plan or policy that violated the law." (Defs.' Mem. Opp'n Pls.' Mot. for Conditional Class Certification, ECF No. 34, at 11.) Defendants allege that because Wicked Tuna employees were required to remit a percentage of their net sales into a tip pool, not their tips, Defendants' tip pool does not violate the FLSA. Defendants also assert that Plaintiffs have not distinguished between back-of-the-house employees who are eligible to share in a tip pool and back-of-thehouse-employees who are not. Defendants further assert that Plaintiff Jacob Hyde's affidavit is insufficient to show that the proposed class is similarly situated to the named Plaintiffs. Finally, Defendants assert that any proposed class should be limited to servers and bartenders who worked prior to October 5, 2014.
Plaintiffs have produced factual evidence in the form of an affidavit by Plaintiff Jacob Hyde and a memo issued by Wicked Tuna explaining its tip-out policy. The Court finds that the memo issued by Wicked Tuna is sufficient factual evidence to support Plaintiffs' allegations that the Proposed Class is similarly situated to the named Plaintiffs. While Defendants correctly point out that Plaintiffs have not produced evidence about the varying responsibilities and positions of Wicked Tuna employees, their argument is better suited for the optional decertification stage. See Pelczynski, 284 F.R.D. at 368. At the conditional certification stage, Plaintiffs have produced evidence that Wicked Tuna employed a common scheme or policy of charging their servers and bartenders a percentage of their net sales to be remitted into a tip pool, as well as a $1.00 breakage fee for each work day. Additionally, through the affidavit of Jacob Hyde, Plaintiffs have shown that a named Plaintiff is similarly situated to the putative class members. Hyde was both a server and a bartender at Wicked Tuna. He was subject to the tip pool and breakage fee requirements, and is thus similarly situated to other servers and bartenders at Wicked Tuna. The Court finds that this is sufficient evidence to demonstrate that the Proposed Class is similarly situated to at least one of the named Plaintiffs. Thus, Plaintiffs have met their burden for conditional certification. However, as requested by the Defendants, the Court limits Plaintiffs' Proposed Class to servers and bartenders employed by Wicked Tuna from its opening until October 5, 2014.
Therefore, the Court conditionally certifies Plaintiffs' Proposed Class with the modifications requested by Defendants. The class is hereby defined as follows:
Plaintiffs also request an Order requiring Defendants to produce the names, addresses, telephone numbers, email addresses, and dates of employment for all Wicked Tuna employees belonging to the class. Defendants object to disclosing the telephone numbers and email addresses of their current and former employees, arguing that "Plaintiffs have provided no rationale for the necessity of using email and text message notice." (Defs.' Mem. Opp'n Pls.' Mot. for Conditional Certification, ECF No. 34, at 17.) Additionally, Defendants assert that electronic communications are not as formal as U.S. Mail and have a higher propensity for abuse. To illustrate the propensity for abuse, Defendants assert that Plaintiffs' counsel solicited potential opt-in plaintiffs before conditional class certification. Defendants cite to Bouder v. Prudential Financial, Inc. to support their argument against sending notice by email. No. 06-CV-4539 (DMC), 2007 WL 3396303 (D.N.J. Nov. 8, 2007). However, the procedural posture and the facts in Bouder render it inapplicable to this case. In Bouder, plaintiffs' counsel was ordered to cease and desist when he attempted to send a notice letter to non-client potential class members before moving for conditional certification. Id. at *1-3. Here, Plaintiffs' counsel sent an email to his clients that inadvertently included a non-client. His email was not a solicitation, and Plaintiffs' counsel subsequently moved for conditional certification. Consequently, Defendants' citation to Bouder is inapposite.
District courts have taken a variety of positions and approaches as to what information regarding potential plaintiffs may or shall be disclosed to named plaintiffs at the notice stage of FLSA actions.
Plaintiffs assert that they have shown a special need because the Wicked Tuna "has many seasonal employees." (Pls.' Mem. Supp. Mot. for Conditional Certification, ECF No. 19-1, at 9.) As a result, Plaintiffs argue for email notice in addition to U.S. Mail notice because "email addresses tend to last for a long time" and "email notice has been found by courts to be a safe, reliable, and very unobtrusive method of delivering notice." Id. As for telephone numbers, Plaintiffs desire to use a text message form of notice if a class member's U.S. Mail notice is returned as undeliverable. Plaintiffs claim that "[t]he one constant contact that these putative members have is their cell phone number." Id. at 10. Defendants do not contradict Plaintiffs' assertion that Wicked Tuna employees are seasonal and instead state, "Plaintiffs have provided no rationale for the necessity of using email and text message notice." (Defs.' Mem. Opp'n Pls.' Mot. for Conditional Class Certification, ECF No. 34, at 17.) In light of Plaintiffs' uncontroverted allegations, the Court finds that Plaintiffs have demonstrated a special need for the use of email notice and approves notice by both U.S. Mail and email. Additionally, the Court grants Plaintiffs' request to send notice by text message, but only in the limited circumstance where both the U.S. Mail and email notices are returned as undeliverable.
Having concluded that conditional certification of this action pursuant to § 216(b) is appropriate under the circumstances, the Court turns now to Plaintiffs' various requests regarding the Court-facilitated notice to potential opt-in plaintiffs, as well as the Defendants' objections to the form and manner of such notice.
Contemporaneously with their filing of the instant Motion, Plaintiffs have provided the Court with a proposed notice, titled "Notice of Collective (Class) Action Lawsuit" ("Proposed Notice"). Plaintiffs seek the Court's approval of the Proposed Notice and the Court's authorization to send it to prospective plaintiffs. Defendants, in addition to requesting modification of the Proposed Notice to account for the various objections outlined above, also ask that the language of the Proposed Notice be amended in several other respects. The Court will address all of Defendants' objections to Plaintiffs' Proposed Notice in turn.
Again, it is important to note that "district courts have discretion, in appropriate cases, to implement . . . § 216(b) . . . by facilitating notice to potential plaintiffs." Hoffmann-La Roche, Inc., 493 U.S. at 169. In facilitating such notice under the FLSA, courts also have "broad discretion regarding the `details' of the notice sent to potential opt-in plaintiffs." Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 574 (D. Md. 2012) (quoting Lee v. ABC Carpet & Home, 236 F.R.D. 193, 202 (S.D.N.Y. 2006)). "Neither the statute, nor other courts, have specifically outlined what form court-authorized notice should take nor what provisions the notice should contain." Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 60 (E.D.N.Y. 2011) (quoting Fasanelli v. Heartland Brewery, Inc., 516 F.Supp.2d 317, 323 (S.D.N.Y. 2007) (internal quotation marks omitted)). Moreover, the Supreme Court has expressly abstained from reviewing the contents of a proposed notice under § 216(b), instead "confirm[ing] the existence of the trial court's discretion, not the details of its exercise." Hoffman-La Roche, Inc., 493 U.S. at 170. Nevertheless, "[w]hen exercising its broad discretion to craft appropriate notices in individual cases, District Courts [should] consider the overarching policies of [the FLSA's] collective suit provisions." Velasquez, 2014 WL 2048425, at *9 (quoting Fasanelli, 516 F. Supp. 2d at 323 (internal quotation marks omitted)). "The[se] overarching policies . . . require that the proposed notice provide accurate and timely notice concerning the pendency of the collective action, so that potential plaintiffs can make informed decisions about whether to participate." Butler, 876 F. Supp. 2d at 574-75 (quoting Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F.Supp.2d 445, 450 (S.D.N.Y. 2011)). "Absent reasonable objections by either the defendant or the Court, plaintiffs should be allowed to use the language of their choice in drafting the notice." Sylvester v. Wintrust Fin. Corp., No. 12 C 01899, 2013 WL 5433593, at *6 (N.D. Ill. Sept. 30, 2013) (quoting Kelly v. Bank of Am., N.A., No. 10 C 5332, 2011 WL 7718421, at *1 (N.D. Ill. Sept. 23, 2011) (internal quotation marks omitted)).
Defendants' objections are addressed under the headings they used in their Memorandum in Opposition to Plaintiffs' Motion for Conditional Class Certification.
Defendants' request to limit notice to U.S. Mail is denied for the reasons discussed in Section II above.
Defendants assert that an explanation of Plaintiffs' attorney's fees should be included in the Proposed Notice and the Consent to Join Lawsuit form ("Consent Form"). Specifically, Defendants wish to attach a copy of Plaintiffs' counsel's fee schedule to the Proposed Notice and to the Consent Form, and to edit sections six and seven of Plaintiffs' Proposed Notice. Defendants wish to add the word upfront to section six and to change the first sentence of section seven. Plaintiffs' sentence reads, "Plaintiffs' attorneys are being paid on a contingency fee basis, which means that if there is a recovery, Plaintiffs' attorneys will receive a part of any settlement obtained or money judgment entered in favor of all members of the class." (Pls.' Mot. for Conditional Certification Exh. 13, ECF No. 18-13, at 3.) Defendants propose the following italicized changes, "Plaintiffs' attorneys are being paid on a contingency fee basis, which means that if there is a recovery, Plaintiffs' attorney's fees and costs incurred in this action will be deducted from any settlement obtained or money judgment entered in favor of all members of the class." (Defs.' Mem. Opp'n Pls.' Mot. for Conditional Class Certification Exh. 6, ECF No. 34-6, at 7.) The Court finds that the language in Plaintiffs' Proposed Notice is sufficient to inform potential plaintiffs that Plaintiffs' counsel will be paid on a contingency fee basis. Therefore, Defendants' objections are overruled.
Defendants also request that the portions of the Proposed Notice that do not reflect the changes in the Amended Complaint be deleted or reworded. In particular, Defendants point out the addition of Plaintiff Jacob Hyde as a party and the removal of damage claims seeking the return of tips and breakage fees. Plaintiffs agree to update the caption to reflect the addition of Jacob Hyde as a party, but assert that they continue to seek recovery of the tips and breakage fees that were allegedly deducted by Wicked Tuna. Thus, the Court declines to remove references to those claims from Plaintiffs' Proposed Notice. Defendants' objection is overruled.
Next, Defendants request that a third-party administrator send out the Proposed Notice. Additionally, Defendants request that Plaintiffs be required to pay the third party administrator's costs for sending out notices to class members. Plaintiffs object, stating that Plaintiffs' counsel would administer the notice if Defendants do not wish to pay for the costs of a third-party administrator. Although Plaintiffs' counsel seeks the option to administer the notice himself, the privacy of potential class members weighs in favor of requiring a third-party administrator. See Robinson v. Empire Equity Grp., Inc., No. WDQ-09-1603, 2009 WL 4018560, at *5 (D. Md. Nov. 18, 2009). "[T]he Plaintiffs may seek reimbursement should they prevail in this suit." Id. Therefore, the Court orders that the parties meet and confer to agree on a third-party administrator. The costs of the third-party administrator are to be paid by Plaintiffs.
Defendants also request that the opt-in period should be limited to thirty days rather than forty-five days. Plaintiffs have agreed to a thirty-day opt-in period in their Reply.
The Proposed Notice contains allegations from the Amended Complaint that Defendants have denied in their Answer. Defendants request that the Proposed Notice's language be either deleted or changed to reflect Defendants' denial. Specifically, Defendants object to the last full paragraph on the first page of the Proposed Notice and the fourth paragraph on the second page of the Proposed Notice.
Finally, Defendants request that the notice contain a clause notifying potential class members that the notice is being sent by a third-party administrator. The Court finds Defendants' request reasonable. Therefore, Defendants' proposed clause is approved.
The Court hereby authorizes Plaintiff's Proposed Notice, subject only to the modifications discussed above, including the revised definition of the class. The remainder of Plaintiffs' Proposed Notice remains unchanged.
Finally, Plaintiffs seek an Order from this Court requiring Wicked Tuna to post the Proposed Notice in a communal area within its restaurant. Plaintiffs cite authority stating that such notice is routinely granted. Since Defendants do not address this manner of notice in their Memorandum in Opposition, the Court grants Plaintiffs' request.
For the foregoing reasons, it is
