Nolen v. Firebirds of Overland Park, LLC

Filing 50

MEMORANDUM AND ORDER - Plaintiff's motion for conditional certification 39 is granted in part and denied in part as described herein and defendants' motion for partial summary judgment 42 is denied. The parties are directed to meet a nd confer about the form and substance of the notice and, if an agreement is reached, to submit the proposed notice to the court for approval no later than Monday, July 2, 2018. If the parties are unable to reach an agreement, then plaintiff shall file a motion no later than Monday, July 2, 2018 seeking approval of his proposed notice. Defendants shall then file their objections to plaintiff's proposed notice and submit an alternate proposed notice no later than Friday, July 13, 2018. Signed by District Judge John W. Lungstrum on 06/18/2018. (ses)

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS

Josh Nelson, on behalf of himself
and all others similarly situated,
Plaintiffs,
v.

Case No. 17-2237-JWL

Firebirds of Overland Park, LLC;
and Firebirds International, LLC,
Defendants.

MEMORANDUM & ORDER
Plaintiff is a former server at defendants’ restaurant location in Overland Park, Kansas. He
filed this wage and hour lawsuit, individually and on behalf of others similarly situated, against
defendants alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.,
and various state wage payment laws. Plaintiff alleges that defendants, while taking advantage of
the FLSA’s “tip credit” provision, required him and putative class members to spend more than
20 percent of their time performing non-tip-producing “side work” activities. This matter is
presently before the court on plaintiff’s motion for conditional class certification under § 216(b)
of the FLSA (doc. 39) and defendants’ motion for partial summary judgment (doc. 42).1 As set

On May 14, 2018, counsel for defendants sent an email to the court requesting oral argument on
both motions. Because oral argument would not clarify any issues in the parties’ submissions
(which are sufficient for resolution of the motions) or assist the court in any meaningful way, the
court denies this request.
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forth in more detail below, plaintiff’s motion is granted in part and denied in part and defendants’
motion is denied.

Background
From December 2013 through November 2015, plaintiff Josh Nelson worked as a server
for defendants at one of defendants’ restaurants in Overland Park, Kansas.

During that time,

defendants paid plaintiff $2.15 per hour and relied on the “tip credit” provision of the FLSA to
make up the difference between the paid wage and the federal minimum wage. See 29 U.S.C. §
203(m). Plaintiff asserts that he routinely spent more than 20 percent of his time performing “nontip-producing activities” and that defendants violated the tip-credit provision (and the minimum
wage provision) by failing to pay plaintiff the federal minimum wage for that time. Plaintiff
further alleges that defendants’ uniform compensation policy requires that all servers are paid
exclusively under the tip-credit provision and that servers are never paid the minimum wage
regardless of whether they spend more than 20 percent of their time performing non-tip-producing
activities. Plaintiff alleges that defendants failed to track the amount of time spent by servers
performing non-tip-producing activities and that, as a result of these policies and procedures,
defendants routinely failed to pay their servers the federal minimum wage in violation of the
FLSA.

The Tip Credit Provision of the FLSA
The Fair Labor Standards Act (FLSA) of 1938 requires employers to pay a minimum
hourly wage, which is currently $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). For a “tipped
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employee,” defined by the statute as an employee engaged in an occupation in which he or she
customarily and regularly receives more than $30 per month in tips, 29 U.S.C. § 203(t), the
employer must pay a wage of at least $2.13 per hour plus an additional amount based on tips
received by the employee that is equal to the difference between the $2.13 cash wage and the
current $7.25 minimum wage. 29 U.S.C. § 203(m). In other words, the tip-credit provision of the
FLSA permits an employer to pay tipped employees a cash wage of as little as $2.13 an hour, and
then use a portion of the employees’ tips to make up the difference between that hourly cash wage
and the federal minimum wage. Romero v. Top-Tier Colorado LLC, 849 F.3d 1281, 1283 (10th
Cir. 2017) (citing 29 U.S.C. § 203(m); Fast v. Applebee’s Int’l, Inc., 638 F.3d 872, 876 (8th Cir.
2011)).
As the Tenth Circuit has recognized, § 203(m)’s tip-credit provision is “not without its
limits.” Id. at 1284. The Department of Labor (DOL) has promulgated regulations to implement
the tip credit and those regulations “recognize that an employee may hold more than one job for
the same employer, one which generates tips and one which does not, and that the employee is
entitled to the full minimum wage rate while performing the job that does not generate tips.” Id.
(quoting Fast, 638 F.3d at 875 (citing 29 C.F.R. § 531.56(e))). Specifically, the “dual jobs”
regulation provides:
Dual jobs. In some situations an employee is employed in a dual job, as for example,
where a maintenance man in a hotel also serves as a waiter. In such a situation the
employee, if he customarily and regularly receives at least $30 a month in tips for
his work as a waiter, is a tipped employee only with respect to his employment as a
waiter. He is employed in two occupations, and no tip credit can be taken for his
hours of employment in his occupation of maintenance man. Such a situation is
distinguishable from that of a waitress who spends part of her time cleaning and
setting tables, toasting bread, making coffee and occasionally washing dishes or
glasses. It is likewise distinguishable from the counterman who also prepares his
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own short orders or who, as part of a group of countermen, takes a turn as a short
order cook for the group. Such related duties in an occupation that is a tipped
occupation need not by themselves be directed toward producing tips.
29 C.F.R. § 531.56(e).
The DOL has further interpreted its dual jobs regulation through § 30d00(e) of its Field
Operations Handbook (FOH), which provides “that if a tipped employee spends a substantial
amount of time (defined as more than 20 percent) performing related but nontipped work, . . . then
the employer may not take the tip credit for the amount of time the employee spends performing
those duties.” Romero, 849 F.3d at 1284 (quoting Fast, 638 F.3d at 875). Specifically, § 30d00(e)
of the FOH provides as follows:
(e) Reg 531.56(e) permits the taking of the tip credit for time spent in duties related
to the tipped occupation, even though such duties are not by themselves directed
toward producing tips (i.e. maintenance and preparatory or closing activities). For
example, a waiter/waitress, who spends some time cleaning and setting tables,
making coffee, and occasionally washing dishes or glasses may continue to be
engaged in a tipped occupation even though these duties are not tip producing,
provided such duties are incidental to the regular duties of the server
(waiter/waitress) and are generally assigned to the servers. However, where the
facts indicate that specific employees are routinely assigned to maintenance, or that
tipped employees spend a substantial amount of time (in excess of 20 percent)
performing general preparation work or maintenance, no tip credit may be taken for
the time spent in such duties.
Field Operations Handbook § 30d00(e).2
In support of his motion for conditional certification, plaintiff alleges that defendants had
a uniform policy that required servers to spend more than 20 percent of their time engaged in non-

The parties treat § 30d00(e) as the applicable version of the FOH guideline and so the court does
so here. However, the Department of Labor has updated the FOH such that the portion interpreting
the dual jobs regulation now appears in § 30d00(f). See Field Operations Handbook § 30d00(f),
available at www.dol.gov/whd/foh/foh_ch30.pdf.
2

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tip-producing activities and that defendants unlawfully failed to pay the full minimum wage for
that time. Plaintiff, for example, alleges that defendants uniformly required servers to perform
non-tip-producing tasks such as brewing coffee and tea; wiping down server station counters,
beverage machines, light fixtures, tables and chairs; stocking tea, coffee, ice, glasses, and napkins;
sweeping floors and “bisseling” carpets; refilling condiments; and polishing silverware. Plaintiff
alleges that the completion of these tasks routinely exceeded 20 percent of the hours worked in a
work week and, thus, that servers should have been paid the full minimum wage for that time. In
other words, plaintiff asserts that defendants violated the FLSA by using § 203(m)’s tip credit for
hours that, according to plaintiff, were not tip-credit eligible under 29 C.F.R. § 531.56(e) and §
30d00(e) of the applicable FOH. Plaintiff asserts that defendants’ uniform, nationwide policies
requiring servers to spend more than 20 percent of their time engaged in non-tip-producing
activities and refusing to pay servers the full minimum wage for that time justifies conditional
certification of a nationwide class of all current and former servers employed by defendants from
May 12, 2014 to the present.
Defendants oppose the motion on various grounds. As a threshold matter, defendants
contend that the DOL’s interpretation of the dual jobs regulation, as set forth in § 30d00(e) of the
FOH, is not entitled to deference and should be disregarded by the court. This issue is also the
basis for defendants’ motion for partial summary judgment. According to defendants, they are
entitled to summary judgment on plaintiff’s “tip credit” claims because those claims are based
entirely on the FOH, which is not entitled to deference under Auer v. Robbins, 519 U.S. 452
(1997). In response, plaintiff urges that the FOH is entitled to Auer deference and that the FOH’s
interpretation of the dual jobs regulation governs plaintiff’s claims in this case. “Auer ordinarily
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calls for deference to an agency’s interpretation of its own ambiguous regulation.” Christopher
v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012). “[T]his general rule does not apply in
all cases.” Id. As a threshold matter, Auer deference is warranted only if the language of the
regulation in question is ambiguous, “lest a substantively new rule be promulgated under the guise
of interpretation.” EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1137 (10th Cir.
2013), rev’d on other grounds, 135 S. Ct. 2028 (2015). Moreover, deference is not appropriate
when the agency’s interpretation “is plainly erroneous or inconsistent with the regulation.”
Christopher, 567 U.S. at 155.
The two Circuit Courts of Appeal that have addressed squarely whether § 30d00(e) of the
FOH is entitled to Auer deference are split on the issue. Defendants urge the court to follow the
Ninth Circuit’s opinion in Marsh v. J. Alexander’s LLC, 869 F.3d 1108 (9th Cir. 2017), while
plaintiff urges the court to follow the Eighth Circuit’s opinion in Fast v. Applebee’s International,
Inc., 638 F.3d 872 (8th Cir. 2011). In a 2-1 panel decision, the Ninth Circuit in Marsh held that
§ 30d00(e) of the FOH was not entitled to Auer deference such that the plaintiffs in that case failed
to state claims for minimum wage violations. According to the Ninth Circuit, the DOL’s
interpretation of the dual jobs regulation is contrary to § 203(t) and inconsistent with the
regulation. The Circuit further concluded that the DOL’s interpretation was wholly unreasonable
and was an attempt to create a de facto regulation. The dissent in Marsh, however, parted ways
with the majority at “each step of the Auer deference analysis” and found that § 30d00(e) of the
FOH interpreted an ambiguous regulation, and that it did so in a manner that was not plainly
erroneous or inconsistent with the statute or regulation. On February 16, 2018, the Ninth Circuit
granted rehearing en banc in the Marsh case. See Marsh v. J.Alexander’s LLC, 882 F.3d 777 (9th
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Cir. 2018). In Fast, the Eighth Circuit accorded Auer deference to § 30d00(e) of the FOH after
concluding that § 531.56(e) is ambiguous and that the DOL’s interpretation of that regulation was
reasonable and neither plainly erroneous nor inconsistent with the regulation. The Eighth Circuit,
then, held that the FOH’s interpretation of § 531.56(e) governed the case and that the district court
properly denied Applebee’s motion for summary judgment
The court believes that the Tenth Circuit, if faced with this issue, would follow the lead of
the Eighth Circuit in Fast and conclude that the DOL’s interpretation of § 531.56(e) as reflected
in the FOH is entitled to Auer deference. While the Tenth Circuit has not applied § 30d00e of the
FOH, it has noted that § 203(m)’s tip-credit provision is not without its limits, has cited with
approval the Eighth Circuit’s decision in Fast, and has arguably endorsed the 20 percent limitation
on non-tip-producing activities. See Romero v. Top-Tier Colorado LLC, 849 F.3d 1281, 1284
(10th Cir. 2017). Ultimately, the Circuit in Romero remanded to the district court the issue of
whether the defendant was entitled to treat the plaintiff’s tips as “wages,” including the plaintiff’s
argument that the defendant was not entitled to rely on the tip credit for those hours in excess of
20 percent of her work week that she spent performing non-tip-producing activities. See id. at
1283. On remand in Romero, the district court rejected the defendant’s argument that it should
disregard the FOH and, instead, followed the Fast decision and gave Auer deference to the FOH.
Romero v. Top-Tier Colorado LLC, 274 F. Supp. 3d 1200, 1205-06 (D. Colo. June 2, 2017).
Like the district court in Romero (and the vast majority of district courts that have decided
the issue), the court here finds Fast persuasive and adopts its reasoning. Specifically, the court
agrees with Fast that the dual jobs regulation is ambiguous in that the regulation, by using
language like “occasionally” and “part of [the] time,” “clearly places a temporal limit on the
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amount of related duties an employee can perform and still be considered to be engaged in the tipproducing occupation,” but it does not define the specific contours of that limit. 29 C.F.R. §
531.56(e); Fast, 638 F.3d at 879-80. Moreover, the court agrees with Fast’s finding that the FOH
is not plainly erroneous or inconsistent with the regulation. See id. at 880-81. By concluding that
an employer may not take the tip credit if an employee spends more than twenty percent of his or
her time in related but non-tipped work, the FOH places a reasonable temporal limit on the amount
of such work that a tipped employee can perform before he or she must receive the full minimum
wage. See id. at 881 (noting that “[t]he DOL has used a 20 percent threshold to delineate the line
between substantial and nonsubstantial work in various contexts within the FLSA”). Ultimately,
this court will defer to the FOH and holds that defendants may not take the tip credit when a server
spends more than 20 percent of his or her work week performing non-tip-producing tasks. See
Alverson v. BL Restaurant Operations LLC, 2018 WL 1618341, at *3 (W.D. Tex. Apr. 3, 2018)
(rejecting Marsh and following Fast); Hart v. Barbeque Integrated, Inc., 299 F. Supp. 3d 762,
766-67 (D.S.C. Oct. 25, 2017) (rejecting Marsh and following Fast); Osman v. Grube, Inc., 2017
WL 2908864, at *4 (N.D. Ohio, July 7, 2017) (following Fast); Flood v Carlson Rests., Inc., 94
F. Supp. 3d 572, 582 (S.D.N.Y. 2015) (following Fast); Driver v. AppleIllinois, LLC, 890 F. Supp.
2d 1008 (N.D. Ill. 2012) (following Fast). Defendants’ motion for partial summary judgment is
denied.

Conditional Certification
Having denied defendants’ motion for partial summary judgment, the court turns to the
remainder of plaintiff’s motion for conditional certification. Plaintiff asks the court to certify a
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class composed of all current and former servers of Firebirds International, Inc. who worked for
defendants any time from May 12, 2014 (three years prior to the filing of the complaint) to the
present.3 Section 216(b) of the Fair Labor Standards Act of 1938 provides for an opt-in collective
action where the complaining employees are “similarly situated.” 29 U.S.C. § 216(b). The Tenth
Circuit has approved a two-step approach in determining whether plaintiffs are “similarly
situated” for purposes of § 216(b). See Thiessen v. General Elec. Capital Corp., 267 F.3d 1095,
1105 (10th Cir. 2001). Under this approach, a court typically makes an initial “notice stage”
determination of whether plaintiffs are “similarly situated.” See id. at 1102 (citing Vaszlavik v.
Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)). That is, the district court determines
whether a collective action should be certified for purposes of sending notice of the action to
potential class members. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213–14 (5th Cir.
1995). For conditional certification at the “notice stage,” a court “require[s] nothing more than
substantial allegations that the putative class members were together the victims of a single
decision, policy, or plan.” See Thiessen, 267 F.3d at 1102 (quoting Vaszlavik, 175 F.R.D. at 678).
The standard for certification at the notice stage, then, is a lenient one. See id. at 1103. At the
conclusion of discovery, the court then revisits the certification issue and makes a second
determination (often prompted by a motion to decertify) of whether the plaintiffs are “similarly

In his request for relief, plaintiff initially included “bartenders” in his proposed class. Defendants
objected to the inclusion of bartenders and plaintiff has withdrawn that request in his reply. The
court also notes that the proposed class in plaintiff’s request for relief is different from the class
definition included in plaintiff’s amended complaint, which excludes servers from Nevada and
California. Finally, any class definition must obviously exclude servers employed in states that
do not permit use of the tip credit. The parties are directed to meet and confer regarding an
appropriate class definition and to seek the court’s guidance if they cannot come to an agreement.
3

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situated” using a stricter standard. Id. at 1102–03. During this “second stage” analysis, a court
reviews several factors, including the disparate factual and employment settings of the individual
plaintiffs; the various defenses available to defendant which appear to be individual to each
plaintiff; and fairness and procedural considerations. Id. at 1103.
In this case, defendants contend that the court should not apply the lenient “notice stage”
standard in reviewing plaintiff’s motion because the parties have engaged in six months of
certification discovery. According to defendants, the court should apply a “heightened burden”
requiring plaintiff to come forward not only with substantial allegations of a uniform policy or
plan but a sufficient factual basis crediting those allegations. As it has done consistently in cases
at this stage of the litigation (in which no scheduling order concerning merits discovery has been
entered and no trial date has been set), the court rejects the invitation to bypass the first-stage
certification standard in this case in favor of an intermediate level of scrutiny. See In re Bank of
America Wage & Hour Employment Lit., 286 F.R.D. 572, 577 (D. Kan. 2012); Wass v. NPC Int’l,
Inc., 2011 WL 1118774, at *3 (D. Kan. Mar. 28, 2011); Braun v. Superior Indus. Int’l, Inc., 2010
WL 3879498, at *1 (D. Kan. Sept. 28, 2010); Garcia v. Tyson Foods, Inc., 255 F.R.D. 678, 686
(D. Kan. 2009).
In support of his motion, plaintiff has come forward with evidence that defendants, on a
nationwide basis in states that permit use of the tip credit, pay their servers solely at the tip credit
rate and that servers are never paid at the full minimum wage rate regardless of how much time
servers spend performing non-tip-producing tasks. Plaintiff’s evidence demonstrates that the
decision to pay servers at the tip credit rate was made at the corporate level. All servers are
required to perform “side work” during their shifts, though the amount and nature of that side
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work varies by location and is somewhat dependent on the preferences of an individual manager.
While this evidence is disputed, plaintiff has come forward with some evidence suggesting that
plaintiff has spent more than 20 percent of his time at work not engaged in tip-producing activities
and has been wrongfully compensated for that time at a sub-minimum wage. At the corporate
level, defendants do not track the amount of time that servers spend on “side work” or non-tipproducing activities and defendants do not require individual restaurant managers to track that
information. Lastly, all servers’ customer transactions (such as food and drink orders) are
recorded on a uniform Point of Sale System, the same system that servers use to clock in and out.
That system shows how many tables of customers a server served during each shift. According
to plaintiff, data pulled from the uniform Point of Sale System shows the total percentage of time
that a server spends with no active customers in the restaurant which permits an inference that
other time is spent performing non-tip-producing activities.
Defendants oppose certification of the class, arguing that plaintiff has not sufficiently
shown that the putative class members are similarly situated to him. Specifically, defendant
asserts that plaintiff’s evidence fails to show the existence of a single policy or plan that applies
to all putative class members in light of evidence that side work was assigned by individual
managers at individual restaurant locations. Defendant further contends that each server’s
experience varies from the next in terms of how much time he or she spent performing non-tipproducing activities such that “individualized discovery” would render the class unmanageable.
In the alternative, defendants contend that certification should be limited to those servers
employed at defendants’ Overland Park location during the applicable statutory period. Bearing
in mind the lenient standard for conditional certification, these arguments are rejected.
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Plaintiff’s evidence demonstrates that defendants always claim a tip credit for all servers
at all locations regardless of how much time a server spends performing non-tip-producing
activities; that defendants do not track at any location how much time servers spend performing
non-tip-producing activities; that all servers nationwide are assigned the same or similar side work
activities as part of their shifts; that the Point of Sale system is a uniform system that arguably
reflects how much time servers spend on tip-producing activities; and that plaintiff was paid at
the tip credit rate despite spending more than 20 percent of his time on non-tip-producing
activities. While the court appreciates that variations may exist in terms of the amount and nature
of side work assigned to servers, those variations are not significant to the court at this stage of its
analysis. See In re Bank of America Wage & Hour Employment Lit., 286 F.R.D. 572, 586 (D.
Kan. 2012). And while defendants may ultimately prevail on their argument that servers simply
do not spend more than 20 percent of their time performing non-tip-producing activities, that
argument does not preclude conditional certification and constitutes a factual dispute better suited
to further analysis at the second stage of certification. See Wass v. NPC Int’l, Inc., 2011 WL
1118774, at *5-6 (D. Kan. Mar. 28, 2011) (existence of contrary evidence, including declarations
by other employees indicating that no FLSA violations existed, were not relevant at first stage of
certification).
In short, the court concludes that plaintiff has met his burden to show that this collective
action should be certified for purposes of sending notice of the action to potential class members.
The court grants conditional certification of a nationwide class of servers who were paid at the tip
credit rate. See Hart v. Barbeque Integrated, Inc., 299 F. Supp. 3d 762, 764 (D.S.C. 2017)
(granting conditional certification of nationwide class of servers claiming violation of dual jobs
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regulation and 20 percent rule where all servers were required to do side work that “potentially”
caused FLSA violations; disregarding defendants’ declarations from employees disputing
plaintiff’s claims in light of conditional stage); Osman v. Grube, Inc., 2017 WL 2908864, at *6
(N.D. Ohio July 7, 2017) (granting conditional certification of class of servers at twenty franchise
locations where evidence supported theory that servers at four locations spent a substantial amount
of time performing non-tip-producing tasks but were not compensated at the minimum wage for
that time); Gunn v. NPC Int’l, Inc., 2016 WL 7223466, at *4-6 (W.D. Tenn. Dec. 13, 2016)
(granting conditional certification of collective action alleging that Pizza Hut servers in 8 states
performed side work in excess of 20 percent of time at sub-minimum pay); Robbins v. Blazin
Wings, Inc., 2016 WL 1068201, at *6-7 (W.D.N.Y. March 18, 2016) (granting conditional
certification of nationwide class of servers employed at 465 restaurants based on affidavits from
servers employed at 11 different locations showing that servers were regularly required to perform
non-tip-producing tasks at sub-minimum pay); Cope v. Let’s Eat Out, Inc., 2016 WL 10677886,
at *3 (W.D. Mo. 2016) (granting conditional certification of class of tipped employees where
evidence showed that same employment policies were in place at all restaurant locations and that
employees often spent more than 20 percent of their time on non-tipped work but were not paid
minimum wage for that time); Fast v. Applebee’s Int’l, Inc., 243 F.R.D. 360, 362-63 (W.D. Mo.
2007) (granting conditional certification of class of tipped employees despite evidence that each
restaurant’s manager assigns side work independently where employees performed same duties
and were subject to same policies).

Proposed Notice Plan
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Plaintiff has submitted a proposed notice and consent-to-join form with his motion for
conditional certification and has described to the court his proposed plan to disseminate the notice
and consent forms. According to plaintiff, he intends to send the notice to putative class members
through regular first-class mail as well as through electronic mail. Plaintiff further proposes
sending “reminder” notices through regular and electronic mail 30 days prior to the close of the
opt-in period and again 15 days prior to the close of the opt-in period. Plaintiff also intends to
have defendants post the notice at defendants’ restaurants. To facilitate plaintiff in disseminating
notice to the putative class, plaintiff asserts that the court should require defendants to produce to
plaintiff the names, telephone numbers, last known addresses, email addresses and social security
numbers of putative class members. The proposed notice and consent-to-join form submitted by
plaintiff contemplate that the form will be completed, signed, and returned by regular mail. 4
Defendants have raised several objections to plaintiff’s notice plan, including that sending
notice via email (in addition to regular mail) is excessive and unworkable; that plaintiff’s proposed
“reminder” notices are excessive; that plaintiff’s proposed “posting” of the notice at defendants’
restaurants is not warranted; and that defendants should not be required to produce email addresses
or phone numbers for putative class members.5 In his reply brief, plaintiff requests that the court

In his reply brief, plaintiff urges that putative class members should be able to execute and submit
consent-to-join forms electronically and that the court should overrule defendants’ objection to
that approach. But defendants have made no such objection because electronic execution and
submission of consent forms is not contemplated by the notice and form submitted by plaintiff
and is not mentioned in plaintiff’s motion. To the extent plaintiff wants putative class members
to execute and submit consent forms electronically, he should raise this issue with defendants in
the first instance.
5
Defendants also assert that they should not be required to produce social security numbers or
birth dates for putative class members. It is unclear to the court whether plaintiff is requesting
that information. While that information is mentioned in plaintiff’s motion in the context of
4

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deny defendants’ objections without prejudice to reasserting those objections after the parties have
had an opportunity to meet and confer in good faith in an attempt to reach agreement on the form
and substance of the notice. Defendants agree that the parties should meet and confer about the
substance of the notice itself and the particulars of the dissemination plan, but assert that the court
should rule on defendants’ objections in the first instance to assist the parties in reaching an
agreement.
The court agrees with defendants that a resolution of defendants’ objections at this stage
will promote efficiency in terms of finalizing the ultimate notice and dissemination plan. Plaintiff
does not suggest that he anticipates difficulties contacting putative class members such that email
notification above and beyond written notice mailed to the home addresses of putative class
members might be necessary. See Fenley v. Wood Group Mustang, Inc., 170 F. Supp. 3d 1063,
1074 (S.D. Ohio 2016) (general rule is that notice is typically sent by a single method absent some
showing that additional method will ensure receipt of notice). Moreover, even if the court was
inclined to authorize email notification, defendants have represented to the court that they do not
maintain email addresses for current or former employees. Thus, requiring defendants to produce
email addresses would cast an undue (if not impossible) burden on defendants. The court also
agrees with defendants that two reminders during the notice period is excessive and could be
interpreted as encouragement by the court to join the litigation. See Landry v. Swire Oilfield
Servs., LLC, 252 F. Supp. 3d 1079, 1130 (D.N.M. 2017). Nonetheless, the court is inclined to

discussing other cases, that information is not requested by plaintiff in the formal request at the
end of his motion in which he delineates the specific contours of his request. The parties, then,
should meet and confer about these issues.
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conclude that one reminder during the notice period aimed only that those putative class members
who have not responded to the notice serves the FLSA’s broad remedial purpose. The court will
direct the parties to meet and confer with the goal of reaching agreement as to the sending of one
reminder notification. Finally, the court rejects plaintiff’s request to require defendants to post
the notice at their restaurant locations. There is no evidence or suggestion that posting will reach
a wider audience than mailing and, in fact, the potential class members reached by such posting—
current employees—are the same employees for whom defendants most likely have current home
address information. The only issue remaining is whether defendant should be required to produce
phone numbers for putative class members. Defendants assert that they are agreeable to producing
phone numbers with the understanding that such information would be utilized only to assist in a
search for an unreturnable mailing via skip trace or similar method. In his reply brief, plaintiff
does not address this issue at all. The court, then, assumes that plaintiff agrees to the limited use
of phone numbers in this regard.
The parties, then, are directed to meet and confer about any outstanding issues relating to
the class definition as well as the form and substance of the notice and notice plan and, if an
agreement is reached, to submit the proposed notice and notice plan to the court for approval no
later than Monday, July 2, 2018. If the parties are unable to reach an agreement, then plaintiff
shall file a motion no later than Monday, July 2, 2018 seeking approval of his proposed notice and
notice plan. Defendants shall then file their objections to plaintiff’s proposed notice or notice plan
no later than Friday, July 13, 2018.

Statute of Limitations
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Unlike Rule 23 class actions, the commencement of an FLSA collective action does not
toll the statute of limitations for putative class members. 29 U.S.C. § 256(b). Thus, absent an
order from the court tolling the applicable statute of limitations period, the limitations period for
each putative member of the class would be three years (assuming the allegation of a willful
violation of the statute) prior to the date he or she opted into the action. Id. §§ 255(a), 256(b).
The statute, in other words, contains a look-back provision which limits to three years from optin how far back a plaintiff can look to find violations by his or her employer. In re Bank of
America Wage & Hour Employment Lit., 2010 WL 4180530, at *2 (D. Kan. 2010). In his request
for relief, plaintiff asks the court to toll the statute of limitations period for putative class members
from the date of the filing of plaintiff’s motion for conditional certification until the close of the
opt-in period. Defendants oppose this request on the grounds that plaintiff has not alleged “active
deception” or any other facts that might support a request for equitable tolling of the limitations
period. Plaintiff does not mention the issue at all in his reply brief.
The Tenth Circuit generally applies in single-plaintiff cases a very high standard in
determining whether to equitably toll the limitations period—reviewing for circumstances rising
to the level of “active deception.” Impact Energy Resources, LLC v. Salazar, 693 F.3d 1239, 1246
(10th Cir. 2012). The Circuit, however, has never examined the issue of equitable tolling in the
context of a nationwide FLSA collective action. The court, then, rejects the suggestion that
“active deception” is required for equitable tolling in the context presented here. But in the
absence of any briefing on the issue from plaintiff, the court declines to grant automatic “blanket”
tolling for individuals who are not yet parties to the case. See Richert v. LaBelle HomeHealth
Care Serv. LLC, 2017 WL 4349084, at *6-7 (S.D. Ohio Sept. 29, 2017) (denying without
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prejudice motion for equitable tolling in FLSA collective action where plaintiff presented no
specific information about the circumstances of potential opt-in plaintiffs; motion for equitable
tolling purporting to seek relief on behalf of individuals who had not yet appeared was premature);
Koehler v. Freightquote.com, Inc., 93 F. Supp. 3d 1257, 1267-68 (D. Kan. 2015) (delaying
decision on whether to toll statute of limitations until the close of opt-in period, upon renewed
motion by plaintiffs, when court would have information from which it could determine
reasonable diligence); In re Amazon.com, Inc., Fulfillment Ctr. Fair Labor Standards Act (FLSA)
& Wage & Hour Litig., 2014 WL 3695750, at *3 (W.D. Ky. July 24, 2014) (holding that it was
premature to grant “blanket” equitable tolling for hypothetical plaintiffs where court did not
possess knowledge sufficient to establish the diligence of putative class members).6 Plaintiff may
renew his request for equitable tolling at a later date if he believes the circumstances so warrant.

IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s motion for
conditional certification (doc. 39) is granted in part and denied in part as described herein and
defendants’ motion for partial summary judgment (doc. 42) is denied.

IT IS FURTHER ORDERED BY THE COURT THAT the parties are directed to meet
and confer about the form and substance of the notice and, if an agreement is reached, to submit
the proposed notice to the court for approval no later than Monday, July 2, 2018. If the parties

While this court granted “blanket” equitable tolling in the Bank of America multidistrict
litigation, the facts presented in that case were distinguishable in that the plaintiffs in a related
action had been granted tolling prior to consolidation and the issue was exhaustively briefed by
all parties.
6

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are unable to reach an agreement, then plaintiff shall file a motion no later than Monday, July 2,
2018 seeking approval of his proposed notice. Defendants shall then file their objections to
plaintiff’s proposed notice and submit an alternate proposed notice no later than Friday, July 13,
2018.

IT IS SO ORDERED.

Dated this 18th day of June, 2018, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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