Trinidad v. PRET A Manger (USA) Limited et al
OPINION & ORDER re: 17 MOTION to Certify Class. filed by Manuel A. Trinidad, 45 MOTION to Strike Document No. [27, 28, 29, 34]. MOTION to Strike Document No. [27, 28, 29, 34]. MOTION to Strike Document No. [27, 28, 29, 34.] MOTION to Strike Doc ument No. [27, 28, 29, 34]. MOTION to Strike Document No. [27, 28, 29, 34]. filed by Pret 342 7th, Inc., Pret 1825 Eye Street, Inc., Pret 655 Sixth Avenue Inc., Pret 708 Third Avenue, Inc., Pret 389 Fifth, Inc., Pret 880 Third Avenue, Inc., Pret 143 2 K Street, Inc., Pret 201 Pearl, Inc., Pret 825 Eighth Avenue Inc., Pret 2 Park Avenue, Inc., Pret 122 East 42, Inc., Pret 185 Franklin Street Inc., Pret A Manger-237 Park Avenue, Inc., Pret 485 7th Avenue, Inc., Pret 1399 New York Avenue, Inc., Pre t 24 West 23rd, Inc., Pret 11th and F Street DC, Inc., Pret 1410 Broadway, Inc., Pret 75 Nassau, Inc., Pret 853 Broadway, Inc., Pret 350 Hudson, Inc., Pret 1200 Avenue of the Americas Inc., Pret 62 West 45th Inc., PRET A Manger (USA) Limited, Pret 50 1 Boylston Street, Pret 1350 Broadway, Inc., Pret 100 Church Street, Inc., Pret 425 Madison Inc., Pret 425 Lex, Inc., Pret 1020 Sixth Avenue, Inc., Pret 821 Broadway, Inc., Pret 179 Broadway, Inc., Pret 319 Broadway Inc., Pret 1828 L Street, Inc., Pr et 50 Broadway, Inc., Pret 857 Broadway, Inc., Pret 757 Third Inc., Pret 485 Lexington, Inc. For the foregoing reasons, the Court grants collective certification for a class consisting of all non-exempt employees who have worked at Pret during the th ree years prior to the filing of the Amended Complaint at the following six stores in New York City: 1200 Avenue of the Americas, 630 Lexington Avenue, 50th Street and 7th Avenue, 32nd Street and Park Avenue, 48th Street and Madison Avenue, and 16th Street and Broadway. Plaintiffs are directed to submit a revised form of Notice consistent with this Order within two weeks. Within 10 days of the Court's approval of that Notice, it shall be posted in a non-public space at these locations. Pre t shall provide plaintiffs with the specified information about prospective class members within 10 days of this Order. Pret's motion to strike is denied. The Clerk of Court is directed to terminate the motions pending at docket numbers 17 and 45. (Signed by Judge Paul A. Engelmayer on 7/11/2013) (djc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MANUEL A. TRINIDAD, et al.,
PRET A MANGER (USA) LIMITED, et al.,
12 Civ. 6094 (PAE)
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge:
Manuel Trinidad brings this action on behalf of himself and similarly situated persons,
alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and New
York Labor Law (“NYLL”) §§ 191 et seq. Trinidad alleges that a number of stores owned by
Pret A Manger (USA) Limited (“Pret”) in New York City maintained unlawful employment
practices, involving failure to adequately compensate employees for off-the-clock and overtime
work, and violations of tip-pooling regulations.
Plaintiffs move for conditional certification of a class under the FLSA, and courtfacilitated notice to all non-exempt Pret “Team Members” employed by Pret in New York City
stores during the last six years. Pret opposes that motion, and moves to strike declarations filed
by four plaintiffs. For the reasons that follow, the Court (1) denies Pret’s motion to strike; (2)
grants conditional certification for plaintiffs’ claims of overtime violations, limited to six Pret
locations in New York City, but denies certification based on allegations of non-overtime offthe-clock work and alleged tip-pooling violations; and (3) approves court-facilitated notice for
the six Pret locations by means of certified mail to prospective class members and non-public
posting of notice in the designated Pret locations.
Pret is a foreign corporation with 33 stores in New York City,2 as well as locations in
several other U.S. cities. All New York stores are wholly-owned subsidiaries of the parent
corporation. Am. Compl. ¶¶ 6–8.
To date, five Plaintiffs have opted in to this action: Manuel Trinidad, Janckell Fermin,
Jason Fermin, Prospero Trinidad, and Solange Troncoso. These plaintiffs were employed by
Pret at various times between 2008 and 2012. Trinidad Decl. ¶ 1; Janckell Decl. ¶ 1; Jason Decl.
¶ 1; Prospero Decl. ¶ 1; Solange Decl. ¶ 1.
Pret hires its employees into a general “Team Member” position, cross-training Team
Members for both front-of-house and kitchen duties. Anders Dep. 28–29. Team Members are
often called to work on Pret’s cash registers during busy periods, and kitchen employees are
often charged with running food to stock food-display cases, known as “langars.” Id. at 31–32,
92–93, 129, 133. As set forth in the Complaint and in each plaintiff’s declaration, plaintiffs
allege that Pret adopted the following illegal policies: (1) failure to pay the proper overtime
The Court’s account of the facts is drawn from the First Amended Class and Collective Action
Complaint (“Am. Compl.”) (Dkt. 15); the Declaration of Manuel A. Trinidad (“Trinidad Decl.”)
(Dkt. 19); the Supplement to Declaration of Manuel A. Trinidad (“Trinidad Supp. Decl.”) (Dkt.
24); the Declaration of Janckell Fermin (“Janckell Decl.”) (Dkt. 27); the Declaration of Jason
Fermin (“Jason Decl.”) (Dkt. 28); the Declaration of Prospero Trinidad (“Prospero Decl.”) (Dkt.
29); the Declaration of Solange Troncoso (“Solange Decl.”) (Dkt. 34); the deposition of Mark
Anders (“Anders Dep.”), which is Exhibit A of the Declaration of Wendy C. Butler in Support of
Defendants’ Opposition to Plaintiff’s Motion for Collective Certification and for Court
Facilitation of Notice Pursuant to 29 U.S.C. § 216(b) (Dkt. 36); and the depositions of Manuel A.
Trinidad, Janckell Fermin, Jason Fermin, Prospero Trinidad, and Solange Troncoso (“Trinidad
Dep.”, “Janckell Dep.”, “Jason Dep.”, “Prospero Dep.”, and “Solange Dep.”), which are Exhibits
16A–E of the Reply Memorandum of Law in Support of Plaintiffs’ Motion for Conditional
Collective Certification (Dkt. 51).
In its brief, Pret represents that there are 35 stores in New York. See Def. Cert. Br. 2.
premium under the FLSA; (2) failure to pay proper tip compensation due to an invalid tippooling policy; (3) failure to pay for off-the-clock work; (4) and failure to comply with various
provisions of the NYLL. Am Compl. ¶¶ 25–31. The allegations of the individual plaintiffs,
derived from their declarations and depositions, are summarized below.
Manuel Trinidad worked for Pret between March 2010 and June 2010. Trinidad Decl. ¶
1. He was hired as a sandwich maker and cashier at the store located at 1200 Avenue of the
Americas. Id. In his declaration, Trinidad also attested to having worked at stores located at 287
Madison Avenue and 30 Rockefeller Center. Id. During his deposition, Trinidad listed various
additional Pret stores at which he worked, including: 51st Street and 6th Avenue, 48th Street and
Madison Avenue, 38th Street and 7th Avenue, 56th Street and 6th Avenue, and 53rd Street and
Lexington Avenue. Trinidad Dep. 35, 198–203.
Trinidad alleged that between March 2010 and May 2010, he worked nine hours per day,
five days a week, for a total of 45 hours per week. Am. Compl. ¶ 24. In June 2010, Trinidad
alleged, he worked seven hours per day for five days per week, for a total of 35 hours per week.
Id. In his deposition, he added that although he was regularly scheduled to work from 12 p.m. to
9 p.m., he often worked past 9 p.m. Trinidad Dep. 55–56.
In his declaration, Trinidad attested that he was not compensated for all hours worked,
nor paid the appropriate overtime premium. Trinidad Decl. ¶ 2. He also attested that he
observed that all cashiers were required to share tips with non-cashier employees, “even when
such employees never served customers.” Id. ¶ 5. He attested that he was required to arrive 30
minutes before his scheduled start time, and that he “frequently” worked past his scheduled end
time, but was never compensated for this time. Trinidad Supp. Decl. ¶¶ 1–2.
Janckell Fermin worked for Pret between August 2009 and June 2011. Janckell Decl. ¶
1. He initially worked exclusively in the kitchen, but in February 2010 he began to work also as
a cashier. Id. He began his employment at the store located at 880 Third Avenue, but, in
February 2010, transferred to the store located at 630 Lexington Avenue. Id.; Janckell Dep. 26,
In his declaration, Janckell attested that he was not compensated for all hours worked, nor
paid the appropriate overtime premium. Janckell Decl. ¶ 2. He attested that his regular schedule
was Monday through Friday from 1 p.m. to 9 p.m., with a 30-minute lunch break, but that he
“frequently” worked through lunch and was not compensated for lunch-break work. Id. ¶ 3. He
further attested that he was required to arrive early to his shift, and “frequently” worked past his
scheduled end time by 30 minutes to two hours, but was required to clock in and out using only
his scheduled hours and was thus not compensated for this time. Id. ¶¶ 4–5. He also attested
that he had observed that all cashiers were required to share tips with non-cashier employees,
“even when such employees never served customers.” Id. ¶ 8. He also attested that he shared in
the tip pool even when he had not served customers during his shift. Id. ¶ 9.
Jason Fermin worked as a cashier for Pret between November 2010 and June 2011.
Jason Decl. ¶ 1. During his employment at Pret, Jason worked at stores located at 47th Street
and Lexington Avenue and 54th Street and Lexington Avenue. Id.; Jason Dep. 24, 31.
In his declaration, Jason asserted that he was not compensated for all hours worked, nor
paid the appropriate overtime premium. Jason Decl. ¶ 2. He stated that his regular schedule was
Monday, Tuesday, Wednesday, and Friday from 4 p.m. to 9 p.m., with no scheduled break, but
that he “frequently” worked “in excess of six hours per day” with no break. Id. ¶ 3. He further
attested that he was required to arrive early to his shift, and “frequently” worked past his
scheduled end time by anywhere between 1.5 and three hours, but was required to clock in and
out using only his scheduled hours and was thus not compensated for this time. Id. ¶¶ 4–6. He
attested that during his first few days at work he signed in and out based on his actual working
time, but that a Team Member Trainer named Jennifer informed him that company policy was to
sign in and out based on scheduled working hours. Id. ¶ 5. Nevertheless, Jason attested that at
times he would clock out using his actual end time, but still would not be paid accordingly. Id. ¶
6. He also attested that he had observed that all cashiers were required to share tips with noncashier employees, “even when such employees never served customers.” Id. ¶ 9.
Prospero Trinidad worked as a Team Member for Pret between October 2009 and April
2010. Prospero Decl. ¶ 1. He worked primarily as a cashier, but also did occasional work in the
kitchen. Id. In his declaration, Prospero attested to having worked at stores located at 50th
Street and 7th Avenue, 32nd Street and Park Avenue, 42nd Street and 6th Avenue, 48th Street
and Madison Avenue, and 16th Street and Broadway. Id. In his deposition, he also testified to
having worked at additional stores located at 41st Street and Lexington Avenue, 54th Street and
5th Avenue, and Rockefeller Center. Prospero Dep. 126, 131, 138–39.
In his declaration, Prospero attested that he was not compensated for all hours worked,
nor paid the appropriate overtime premium. Prospero Decl. ¶ 2. He attested that his regular
schedule was Monday to Friday from 6:30 a.m. to 2:30 p.m., with a 30-minute lunch break, but
that he would work through lunch when his store was busy. Id. ¶ 3. He further stated that he
was required to arrive early to his shift, and worked past his scheduled end time “on a daily
basis” by one to 1.5 hours, but was required to clock in and out using only his scheduled hours
and was thus not compensated for this time. Id. ¶¶ 3–5. He attested that, on occasion, he would
clock out using his actual end time, but his store manager would cross out the extra time, so he
was not paid for the time he actually worked. Id. ¶ 5. He also attested that he saw a store
manager named Roblyn shredding the sign-in sheet. Id. He also attested that he had observed
that all cashiers were required to share tips with non-cashier employees, “even when such
employees never served customers.” Id. ¶ 8.
Solange Troncoso worked as a Team Member for Pret from May or July 2008 to January
2012. Solange Decl. ¶ 1; Solange Dep. 9. She primarily worked as a cashier, but occasionally
worked in the kitchen as well. Solange Decl. ¶ 1. In her declaration, Solange attested to having
worked at stores located at 39th Street and Broadway, 54th Street and Park Avenue, 53rd Street
and 3rd Avenue, and 41st Street and Lexington Avenue. Id. In her deposition, she also testified
to having worked “occasionally” at three other locations.3 Solange Dep. 76.
In her declaration, Solange attested that she was not compensated for all hours worked,
nor paid the appropriate overtime premium. Solange Decl. ¶ 2. She stated that her regular
schedule was Monday to Friday for 8.5 hours per day, with a 30-minute lunch break, but that she
would work through lunch when her store was busy. Id. ¶ 3. She further attested that she was
required to arrive early to her shift, and worked past her scheduled end time “[t]wo or three times
per week” by 30 minutes to one hour, but was required to clock in and out using only her
scheduled hours and was thus not compensated for this time. Id. ¶¶ 4–5. She attested that, on
occasion, she would clock out using her actual end time, but that a store manager named Bill
The stores were located at Rockefeller Center, “somewhere around 35th Street,” and “near
42nd and 5th.” Solange Dep. 76.
would cross out the extra time, explaining that “store managers had to watch their payroll and so
that is why they could only pay for scheduled work hours, not actual hours worked.” Id. ¶ 5.
She also attested that she observed that all cashiers were required to share tips with non-cashier
employees, “even when such employees never served customers.” Id. ¶ 8.
On August 9, 2012, Trinidad filed the original Complaint. Dkt. 1. On November 30,
2012, Pret filed an answer. Dkt. 8. On December 27, 2012, Trinidad filed the First Amended
Class and Collective Action Complaint. Dkt. 15. On January 15, 2013, he filed a motion for
collective certification and court facilitation of notice, Dkt. 17, and a memorandum of law in
support of that motion, Dkt. 18 (“Pl. Cert. Br.”). On March 9 and 11, 2013, just before Pret’s
opposition brief was due, the other four plaintiffs filed consent to sue forms and declarations in
support of class certification. Dkt. 27–34. On March 11, 2013, Pret filed a brief in opposition to
the original motion for collective certification and for court facilitation of notice, which did not
address the recently-filed declarations. Dkt. 35 (“Def. Cert. Br.”).
On March 11, 2013, Pret also submitted a letter requesting that the Court strike the four
new declarations as untimely. The Court denied that request, but granted leave to depose the
additional plaintiffs and provide supplemental briefing to address the new affidavits. Dkt. 42. In
early April 2013, those depositions were taken.
On April 12, 2013, Pret filed a supplemental opposition to the motion for collective
certification, Dkt. 43 (“Def. Supp. Cert. Br.”), and again moved to strike the declarations of
Janckell Fermin, Jason Fermin, Solange Troncoso, and Prospero Trinidad, Dkt. 46 (“Def. MTS
Br.”). Pret’s second motion to strike the affidavits cited inconsistencies between plaintiffs’
affidavits and their deposition testimony. On April 22, 2013, plaintiffs filed an opposition to the
motion to strike, Dkt. 50 (“Pl. MTS Br.”), and a reply memorandum in support of the motion for
collective certification, Dkt. 51 (“Pl. Cert. Reply Br.”). On June 5, 2013, the Court heard
argument. On June 7, 2013, plaintiffs and Pret submitted letter briefing in response to questions
posed at argument. Dkt. 57–59.
Applicable Legal Standard
The FLSA provides that an action may be maintained against an employer “by any one or
more employees for and on behalf of himself or themselves and other employees similarly
situated.” 28 U.S.C. § 216(b). “Although they are not required to do so by FLSA, district courts
‘have discretion, in appropriate cases, to implement [§ 216(b)] . . . by facilitating notice to
potential plaintiffs’ of the pendency of the action and of their opportunity to opt-in as represented
plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffman-La Roche,
Inc. v. Sperling, 493 U.S. 165, 169 (1989)).4 “In determining whether to exercise this discretion
. . . the district courts of this Circuit appear to have coalesced around a two-step method,” which
the Second Circuit has endorsed as “sensible.” Id. at 555; see, e.g., Damassia v. Duane Reade,
Inc., No. 04 Civ. 8819 (GEL), 2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5, 2006) (Lynch, J.);
Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.).
“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, 624 F.3d at 555. “The court may send this
notice after plaintiffs 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 Hoffman,
Hoffman-La Roche involved the parallel provision of the Age Discrimination in Employment
Act, which incorporated the enforcement provisions of FLSA, including § 216(b). “Hoffman-La
Roche’s interpretation of § 216(b) . . . binds us in FLSA cases as well.” Myers, 624 F.3d at 554
982 F. Supp. at 261). Although “[t]he ‘modest factual showing’ cannot be satisfied simply by
‘unsupported assertions,’ . . . 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.
(quoting Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991)); accord
Damassia, 2006 WL 2853871, at *3 (“[A] plaintiff’s burden at this preliminary stage is
‘minimal.’” (collecting cases)); Hoffman, 982 F. Supp. at 261 (“The burden on plaintiffs is not a
stringent one.”). “A court need not evaluate the underlying merits of a plaintiff’s claims to
determine whether the plaintiff has made the minimal showing necessary for court-authorized
notice.” Damassia, 2006 WL 2853971, at *3; accord Gjurovich v. Emmanuel’s Marketplace,
Inc., 282 F. Supp. 2d 101, 105 (S.D.N.Y. 2003); Hoffman, 982 F. Supp. at 262.
“At the second stage, the district court will, on a fuller record, determine whether a socalled ‘collective action’ may go forward by determining whether the plaintiffs who have opted
in are in fact ‘similarly situated’ to the named plaintiffs. 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.” Myers, 624 F.3d at 555.
Motion to Strike
Pret initially sought to strike the additional four plaintiffs’ declarations as untimely. The
Court denied that motion but granted leave to depose the additional plaintiffs and thereafter
provide supplemental briefing. Dkt. 42. On April 2 and 4, 2013, Pret conducted depositions.
Shortly thereafter, Pret again moved to strike the additional declarations because the
“declarations were not consistent with [Plaintiffs’] actual experiences at Pret. In fact, the four
opt-in declarants contradicted their declarations in numerous ways.” Def. MTS Br. 1. In
response, plaintiffs argue that the deposition testimony does not contradict the prior declarations,
and, to the extent there are inconsistencies within a plaintiff’s testimony, those inconsistencies
should go only to the weight of the testimony and not its admissibility. Pl. MTS Br. 5.
An affidavit is admissible where “a reasonable trier of fact could believe the witness had
personal knowledge,” Searles v. First Fortis Life Ins. Co., 98 F. Supp. 2d 456, 461 (S.D.N.Y.
2000), even if the testimony is “arguably vague,” Colabufo v. Cont’l Cas. Co., No. 04 Civ. 1863
(TCP), 2006 WL 1210919, at *6 (E.D.N.Y. Apr. 27, 2006). The mere fact that testimony is
inconsistent is insufficient to justify striking an entire document. See Lohrenz v. Donnelly, 223
F. Supp. 2d 25, 37 (D.D.C. 2002) (“Mere inconsistency and contradiction is insufficient to
support a motion to strike a document from the record, particularly where, as here, the document
that defendants seek to strike is a sworn Declaration signed under penalty of perjury.”), aff’d,
350 F.3d 1272 (D.C. Cir. 2003). Where there are alleged discrepancies between affidavits and
depositions, minor inconsistencies will go to the credibility of the declarant—and therefore to the
weight to be given his or her testimony—rather than the admissibility of the testimony. Lujan v.
Cabana Mgmt., Inc., 284 F.R.D. 50, 67 (E.D.N.Y. 2012) (“[M]inor inconsistencies go to the
credibility of the declarants and do not alone warrant striking their declarations.”); see also
Colabufo, 2006 WL 1210919, at *6 (“[T]he lack of certain specific details or arguably vague or
conclusory statements will not render Plaintiffs’ affidavits inadmissible, but instead affects the
weight and credibility of the testimony.”); Damassia, 250 F.R.D. at 160 (assigning “little
weight” to written declarations that contradicted deposition testimony); Mueller v. Towers, 3:10CV-1093 (WWE), 2010 WL 4365771, at *2 (D. Conn. Oct. 25, 2010) (“‘A motion to strike is
not an appropriate vehicle through which to contest the credibility of a witness or to draw further
attention to the fact that one piece of evidence is contradicted by another.’” (quoting Lohrenz,
223 F. Supp. 2d at 33)). And, at the conditional certification stage, courts are not to make
credibility determinations. See Lynch v. United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 368
The Court does not find sufficiently major discrepancies between plaintiffs’ declarations
and their deposition testimony to warrant striking any of their declarations. Pret cites numerous
examples of inconsistent testimony, see Def. MTS Br. 1–3; however, when read in context, these
inconsistencies are, in the main, less consequential than Pret suggests. For example, Pret cites a
statement in Jason Fermin’s declaration that he “observed that other Team members also did not
receive their proper wages and overtime.” Def. MTS Br. 1 (citing Jason Decl. ¶ 2). His
deposition testimony, as quoted by Pret, stated: “Why would I know my co-worker’s pay stuff?
That’s kind of like personal information . . . I’m not going to keep track of [how many hours
other employees worked].” Def. MTS Br. 1 (citing Jason Dep. 138–39). However, Jason went
on to state:
Well, I obviously saw my brother’s checks . . . and then my friend Julio Almonte
. . . . Well, I don’t think I saw all his checks, but I remember like a few times. . . .
But for some of them, people like Julio that I have seen, Allison which is actually
my Godsister, I have seen. Karines is actually my cousin, I have seen. People in
my family I have obviously seen. But I’m not going to be like—I have seen
John’s too, because we would compare checks too, [J]ohn the closing admin in
Jason Dep. 138–39. The other inconsistencies alleged by Pret are similarly minor and, for the
most part, evidently attributable to imprecision or otherwise explainable.5 These inconsistencies
For example, Pret contrasts the following statements in its brief:
Solange Decl. ¶ 3: “I was always scheduled for an 8.5 hour shift.”
Solange Dep. 70: “Q: So he would often schedule you for less than eight hours?
or imprecisions can easily be explained by the context in which they were made—a deposition of
a kitchen worker about events that occurred years in the past, where witnesses may have made
general recollections of practices but not have as confident a command of specifics. The Court
declines to strike these declarations at this preliminary stage. However, to the extent there are
inconsistencies between a plaintiff’s declarations and depositions, Pret will be at liberty to argue,
where relevant at later stages of this case, that plaintiff’s attestation to unlawful business
practices ought not be credited.
1. Overtime Claims
a. Plaintiffs’ Overtime Allegations
Plaintiffs’ primary allegations concern unpaid overtime. The FLSA requires that an
employee who works more than 40 hours in a given workweek be compensated for the hours
worked in excess of 40 “at a rate not less than one and one-half times the regular rate at which he
Def. MTS Br. 2. However, Solange explained in subsequent deposition testimony: “My
schedules are eight hours and a half . . . . Because you—I don’t know. Monday through
Friday was eight and a half hours, which was from six to 2:30, but sometimes they would
change the hours, like they would make some adjustments.” Id. 177–78.
Another example comes from Prospero’s testimony. Pret contrasts these two statements:
Prospero Decl. ¶ 5: “During my employment with Defendants, I worked past my
scheduled working time every day.”
Prospero Dep. 196: At 50th and 7th, he only worked past his scheduled shift time
“three or four times a week.”
Def. MTS Br. 3. However, Prospero elaborated further in his deposition testimony that
he worked past his scheduled shift every day while working at 32nd and Park, and about
three or four times per week at 50th and 7th. Prospero Dep. 196.
is employed.” 29 U.S.C. § 207(a)(1). Each plaintiff alleges that he or she was deprived of
overtime pay, but each does so with varying degrees of specificity.6
To state a claim under the FLSA, a complaint must state more than vague legal
conclusions. As the Second Circuit recently explained, “to state a plausible FLSA overtime
claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some
uncompensated time in excess of the 40 hours.” Lundy v. Catholic Health Sys. of Long Island
Inc., 711 F.3d 106, 114 (2d Cir. 2013) (citing 29 U.S.C. § 207(a)(1)); accord Nakahata v. New
York-Presbyterian Healthcare Sys., No. 11-0734, slip op. at 19 (2d Cir. July 11, 2013) (“To
plead a plausible FLSA overtime claim, plaintiffs must provide sufficient detail about the length
and frequency of their unpaid work to support a reasonable inference that they worked more than
forty hours in a given week.”). Although the Lundy standard “does not require an approximate
number of overtime hours, . . . determining whether a claim is plausible is a ‘context-specific
task that requires the reviewing court to draw on its judicial experience and common sense,’ and
. . . ‘under a case-specific approach, some courts may find that an approximation of overtime
hours worked may help draw a plaintiff’s claim closer to plausibility.” Nakahata, slip op. at 18
n.10 (quoting Lundy, 711 F.3d at 114 & n.7).
In holding that the plaintiffs in Lundy had failed to plead facts sufficient to support a
plausible claim of a violation of the FLSA, the Second Circuit noted that they had failed to allege
“a single workweek” in which they worked uncompensated time in excess of 40 hours. Lundy,
Plaintiffs also allege that they were not paid for off-the-clock work under 40 hours per week.
Compl. ¶¶ 1, 25, 40. However, this is not a cognizable claim under the FLSA unless there are
also allegations that the unpaid hours below 40 diluted the hourly rate below the minimum wage.
See Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 115 (2d Cir. 2013) (“An
employee who has not worked overtime has no claim under FLSA for hours worked below the
40-hour overtime threshold, unless the average hourly wage falls below the federal minimum
wage.”). Plaintiffs have not alleged they were paid under the minimum wage. They therefore
have no cause of action under the FLSA for their off-the-clock work under 40 hours.
711 F.3d at 114. Rather, the plaintiffs had alleged that they “typically” worked a given number
of hours or “occasionally” worked an extra shift or “approximately twice per month” worked a
certain number of shifts. Those allegations, the Second Circuit stated, “invited speculation [that]
does not amount to a plausible claim under FLSA.” Id. at 115; accord Nakahata, slip. op. at 18–
19 (“Plaintiffs have merely alleged that they were not paid for overtime hours worked. These
allegations—that Plaintiffs were not compensated for work performed during meal breaks,
before and after shifts, or during required trainings—raise the possibility that Plaintiffs were
undercompensated in violation of the FLSA and NYLL; however, absent any allegation that
Plaintiffs were scheduled to work forty hours in a given week, these allegations do not state a
plausible claim for such relief.”).
Although a district court need not evaluate the merits of a plaintiff’s claim to determine
whether similarly situated plaintiffs exist for purposes of conditional certification and courtauthorized notice, see, e.g., Damassia, 2006 WL 2853971, at *3; Gjurovich, 282 F. Supp. 2d at
105; Hoffman, 982 F. Supp. at 262, and “[t]he court is not to resolve factual disputes, decide
substantive issues going to the merits, or make credibility determinations” at this stage, see, e.g.,
Hamadou v. Hess Corp., No. 12 Civ. 0250 (CM), 2013 WL 164009, at *9 (S.D.N.Y. Jan. 16,
2013) (citations omitted), the Court must at this stage evaluate the sufficiency of plaintiffs’
pleadings. See Gjurovich, 282 F. Supp. 2d at 105 (“Once the Plaintiff makes a colorable claim
for relief, the only inquiry necessary is whether the potential plaintiffs to be notified are similarly
situated to the named plaintiff.” (emphasis added)). The court’s discretionary power to facilitate
the sending of notice to potential class members is premised on its use as a tool for efficient case
management, Hoffman-LaRoche, 493 U.S. at 169, 174; Myers v. Hertz Corp., 624 F.3d 537, 555
n.10 (2d Cir. 2010), and it does not promote efficient case management to facilitate notice to
potential class members where the representative plaintiffs have failed to state plausible FLSA
violations. Much as the Court would not certify a FLSA collective action based on claims of
unlawful conduct that would violate only state law, it makes little sense to certify a collective
action based on manifestly deficient pleadings, i.e., ones insufficient to make out a violation of
the FLSA. Based on the Court’s review of plaintiffs’ pleadings, as supplemented by their
declaration, it finds that Manuel Trinidad, Janckell Fermin, and Prospero Trinidad have
sufficiently pled a FLSA overtime claim, while Jason Fermin and Solange Troncoso have not.
Jason’s allegations do not amount to a cognizable FLSA overtime claim. He was hired to
work part-time and testified that he never worked more than 40 hours per week. Jason Dep. 38–
Solange’s allegations do not pass the threshold pleading standard specified by Lundy.
Solange’s declaration and deposition lack specifics. In her declaration, she states that she would
work past her scheduled shift ending time by 30 minutes to one hour “[t]wo or three times per
week,” but does not elaborate. Solange Decl. ¶¶ 4–5. Her deposition testimony does not provide
any more detail about her overtime allegation. She merely states she was regularly scheduled
from 8:30 a.m. to 3 p.m., but that this changed frequently, and she was later scheduled from 6
a.m. to 2:30 p.m. Solange Dep. 31, 175. She also acknowledges that there were “plenty of
times” when she was not scheduled for a full eight-hour shift and that her schedule would often
change. Id. at 176–78. Based on her testimony, it is unclear whether—and in what capacity—
she worked overtime. Her allegations thus “supply nothing but low-octane fuel for speculation,
not the plausible claim that is required” under the FLSA. Lundy, 711 F.3d at 115. Accordingly,
the Court will not exercise its discretion to facilitate notice based on Jason and Solange’s
By contrast, Manuel Trinidad’s testimony does meet the Lundy pleading threshold.
Manuel alleges that from March 2010 to May 2010, he worked nine hours per day, five days a
week, for 45 hours per week. Am. Compl. ¶ 24; Trinidad Dep. 55, 110. In his deposition, he
further elaborated that he worked up to one hour before and two hours after his shift each day.
Trinidad Dep. 296–97.
Prospero Trinidad also alleges a FLSA overtime claim. He claims he worked more than
40 hours in more than half of his six-month period at Pret and that he worked past his scheduled
shift—12 p.m. to 8 p.m.— every day at the 32nd Street and Park Avenue location. Prospero
Dep. 62, 182, 196. He also testified that he worked past his scheduled shift “three or four times”
per week at the 50th Street and 7th Avenue location. Id. at 196.
Finally, Janckell Fermin testified that he “frequently” worked through lunch and worked
past his scheduled end time by 30 minutes to two hours during his scheduled 40-hour work
week. Janckell Decl. ¶¶ 3–5; Janckell Dep. 106–07. He further testified that he told his manager
that he stayed late “every night.” Janckell Dep. 77–78. He later testified that he worked
overtime “like every day.” Id. 154–55.
Accordingly, the Court will grant conditional certification based on the overtime claims
asserted by Manuel Trinidad, Prospero Trinidad, and Janckell Fermin.
Because Pret has not moved to dismiss these claims, the Court will allow Jason and Solange’s
overtime claims to proceed in this case, but will not use those claims as a basis for collective
b. Whether Plaintiffs are “Similarly Situated” to All Pret Employees in
New York City
Plaintiffs seek conditional certification for all 33 Pret stores in New York City. Pl. Cert.
Br. 1. However, across their declarations, the three plaintiffs who have alleged plausible
overtime claims only testified to working at 10 stores.8 The Court takes the list of stores noted in
each of the three plaintiffs’ declarations as the starting point for its determination as to which
Pret stores must provide notice of an overtime claim, and then considers whether there is a basis
either to (1) extrapolate from these stores to other Pret stores, based on whether there are
sufficient allegations of a common policy of violating overtimes rules that extends to other
stores, or (2) eliminate stores from this list, based on unacceptably tenuous allegations. In
considering this question, plaintiffs’ deposition testimony, in addition to their declarations,
provides a valuable source of data.
To decide where to provide notice, the Court must determine which stores had employees
that were “similarly situated” with regard to the allegedly unlawful overtime policies. See
Realite v. Ark Rests. Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998) (“The threshold issue in
deciding whether to authorize class notice in an FLSA action is whether plaintiffs have
demonstrated that potential class members are ‘similarly situated.’” (quoting 29 U.S.C.
§ 216(b)). “Neither the FLSA nor its implementing regulations defines ‘similarly situated.’”
Hamadou, 2013 WL 164009, at *8. “However, courts in this Circuit require that plaintiffs only
make a modest factual showing that plaintiffs and other putative collective action members were
Manuel Trinidad, Prospero Trinidad, and Janckell Fermin have testified in their Declarations to
working, collectively, at the following 10 stores: 1200 Avenue of the Americas, 287 Madison
Avenue, 30 Rockefeller Center, 880 Third Avenue, 630 Lexington Avenue, 50th Street and 7th
Avenue, 32nd Street and Park Avenue, 42nd Street and 6th Avenue, 48th Street and Madison
Avenue, and 16th Street and Broadway. See Parts (I)(A)(1)–(2), (4), supra. To the extent these
plaintiffs testified in depositions to working at additional locations, the Court will not use this
testimony to supplement the declarations that plaintiffs offered in support of their motion.
victims of a common policy or plan that violated the law.” Hamadou, 2013 WL 164009, at *8
(citation and alterations omitted); see also Realite, 7 F. Supp. 2d at 306 (collecting cases). This
determination is not limited to a review of the allegations in the Complaint: Documents properly
considered include plaintiffs’ “own pleadings, affidavits, declarations, or the affidavits and
declarations of other potential class members.” Hamadou, 2013 WL 164009, at *8 (citation
Although “courts have regularly found named plaintiffs to be similarly situated to
employees at locations where they did not work . . . the plaintiffs [must] demonstrate that they
were all subject to the same allegedly unlawful policy or practice.” Id. at *9; see also Rosario v.
Valentine Ave. Disc. Store, Co., Inc., 828 F. Supp. 2d 508, 516–17 (E.D.N.Y. 2011) (collecting
cases). When determining which stores to conditionally certify, “courts consider whether the
plaintiffs have made an adequate factual showing to support an inference that such a uniform
policy or practice exists, and whether the locations share common ownership or management.”
Hamadou, 2013 WL 164009, at *9 (emphasis added).
Although all Pret stores in New York City are owned by the same parent company,
plaintiffs have not demonstrated across all locations a uniform policy of failure to pay overtime
compensation. In his deposition, Manuel admits that his manager, Christina, was the only
manager who told him to come in early at any Pret store at which he worked. Manuel Dep. 140–
41. Furthermore, he testified that not all employees came in before their shifts, and that he never
knew (even indirectly) of another manager—aside from Christina—who told employees they
could not record all the hours they actually worked. Id. at 225, 228–29. He also understood that
when his manager Christina failed to pay him overtime, she was doing so in violation of Pret
policy. Id. at 249.
Janckell and Prospero’s testimony similarly suggests that, even at the stores where
plaintiffs worked, the alleged overtime violations were not systematic or uniform. Janckell
received overtime on some occasions after recording the hours he actually worked, rather than
those for which he was scheduled. Janckell Dep. 137–38, 142. Prospero concedes that “[t]here
were some weeks where my checks were good,” even if it was not all the time. Prospero Dep.
50. Prospero also stated that he did not use the sign-in sheet at stores at which he was only
visiting. Instead, he signed in and out from the store at which he was based. Id. at 116–17. He
too conceded that he received overtime pay, albeit not for the full number of hours for which he
worked. Id. at 127. Taken together, the plaintiffs’ testimony seems to describe inconsistent
practices across the Pret stores at which plaintiffs worked. Plaintiffs have not come close to
alleging facts “to support an inference [of] a uniform policy” of FLSA-violative overtime
practices across all Pret stores in New York City. Hamadou, 2013 WL 164009, at *9.
Nor have plaintiffs alleged facts supporting an inference of a common policy spanning
the full subset of Pret stores at which these plaintiffs attested to working in their declarations. Of
the three stores Manuel Trinidad lists in his declaration, he was initially assigned to the store at
47th Street and 6th Avenue,9 Trinidad Dep. 35, and gave no indication that his home store
changed from that store during his three months at Pret. In the Complaint, Trinidad alleges
overtime violations from the beginning of his employment in March 2010 until May 2010, Am.
Compl. ¶ 24; these allegations thus encompass his work at the 47th Street and 6th Avenue
location. Additionally, he testifies to working “two to three times” at the location on 41st Street
and Madison Avenue,10 including two full shifts. Trinidad Dep. 200, 202–03. Trinidad admits
This is the same store as 1200 Avenue of the Americas, listed in Trinidad’s declaration.
This is the same store as 287 Madison Avenue, listed in Trinidad’s declaration.
never “officially” being sent to work at the 30 Rockefeller location, even though he would “help
out . . . [a] whole lot.” Id. at 198, 201. He further stated that he “never worked” in the 30
Rockefeller location, and “would just go there to pick up food items . . . or just to say hi.” Id. at
139. Later in his deposition, Trinidad concedes that he “didn’t personally observe” the sign-in
procedures at any of the additional stores at which he worked, since he never signed in at those
other stores. Id. at 316–17. Therefore, Trinidad’s hours were recorded only at his home store,
1200 Avenue of the Americas (i.e., 47th Street and 6th Avenue). It is thus appropriate, based on
Trinidad’s submissions, to extend conditional certification, based on overtime violations, to
employees of the store at 1200 Avenue of the Americas, but not those at 287 Madison Avenue or
30 Rockefeller Center.
Janckell testified to working at two stores: 880 Third Avenue and 630 Lexington
Avenue. Jason Decl. ¶ 1. He moved to the latter store in February 2010. Id. It was only in
February 2010, however, that he began working full-time. Janckell Dep. 134. Janckell, in his
deposition, testifies that he stayed late “every night,” id. at 77–78, and that he worked overtime
“like every day,” id. at 154–55, time for which he was not paid. Because Janckell’s deposition
provides no evidence of his having worked more than 40 hours before February 2010, when he
was scheduled full-time and was also working overtime “like every day,” the Court approves
conditional certification only for workers at the 630 Lexington Avenue location.
In his declaration, Prospero Trinidad attested to working at five different locations in his
time at Pret: 50th Street and 7th Avenue, 32nd Street and Park Avenue, 42nd Street and 6th
Avenue, 48th Street and Madison Avenue, and 16th Street and Broadway. Prospero Decl. ¶ 1.
He testified that he only had two “main” stores, however: 50th Street and 7th Avenue, and 32nd
Street and Park Avenue. Prospero Dep. 27. Prospero claims he worked more than 40 hours in
more than half of his six-month period at Pret and that he worked past his scheduled shift—12
p.m. to 8 p.m.— every day at the 32nd Street and Park Avenue location. Id. at 62, 182, 196. He
also testified that he worked past his scheduled shift “three or four times” per week at the 50th
Street and 7th Avenue location. Id. at 196. Similarly, in the approximately three full shifts he
worked at the location on 16th Street and Broadway, he claims to have worked 30–45 minutes
past his shift end each time and was not compensated accordingly. Id. at 142. At 48th Street and
Madison Avenue, where he worked approximately three times, he claims to have worked 45
minutes to one hour past his scheduled eight-hour shift. Id. at 115. Like Manuel Trinidad, he
states that he did not use the sign-in sheet at the locations at which he was not based—and the
store manager would verbally report Prospero’s hours to the manager at his home store. Id. at
116–17. But because Prospero later explains that he had personal conversations with each
manager at all stores at which he worked about the policy of only being paid for the hours for
which he was scheduled, see id. at 118–21, the Court does find his allegations sufficient to
indicate a policy of failing to pay overtime at the stores at 16th Street and Broadway, and 48th
Street and Madison Avenue. This statement by Prospero is in contrast to Manuel Trinidad’s
testimony that his manager Christina was the only person he knew who told employees that they
could not record all the hours they actually worked. Trinidad Dep. 225, 228–29. Prospero does
not, however, provide specifics as to the “two days” he worked at the 42nd Street and 6th
Avenue location. Id. at 176–78. The Court therefore finds collective certification appropriate at
four of the five stores at which Prospero worked.
Accordingly, the Court authorizes notice to employees at the following six stores: 1200
Avenue of the Americas, 630 Lexington Avenue, 50th Street and 7th Avenue, 32nd Street and
Park Avenue, 48th Street and Madison Avenue, and 16th Street and Broadway.
Plaintiffs also allege that Pret violated the FLSA by “causing them . . . to share tips with
non-tipped employees.” Compl. ¶ 42. Plaintiffs each assert that Pret cashier employees were
required to share their tips with other non-cashier employees who did not serve customers.
Trinidad Decl. ¶ 5; Janckell Decl. ¶ 8; Jason Decl. ¶ 9; Prospero Decl. ¶ 8; Solange Decl. ¶ 8.
The FLSA requires covered employers to pay employees a minimum wage. See 29
U.S.C. § 206(a). The FLSA’s definition of “wage” provides that, under certain circumstances,
employers of “tipped employees” may apply part of such employees’ tips towards that minimum
wage. See id. § 203(m). The practice of crediting some of an employee’s tips towards the
required minimum wage is commonly referred to as taking a “tip credit.” The FLSA sets the
following conditions for an employer to take a tip credit:
In determining the wage an employer is required to pay a tipped employee, the
amount paid such employee by the employee’s employer shall be an amount equal
(1) the cash wage paid such employee which for purposes of such determination
shall be not less than the cash wage required to be paid such an employee on
August 20, 1996; and
(2) an additional amount on account of the tips received by such employee which
amount is equal to the difference between the wage specified in paragraph (1) and
the wage in effect under section 206(a)(1) of this title.
The additional amount on account of tips may not exceed the value of the tips
actually received by an employee. The preceding 2 sentences shall not apply with
respect to any tipped employee unless such employee has been informed by the
employer of the provisions of this subsection, and all tips received by such
employee have been retained by the employee, except that this subsection shall
not be construed to prohibit the pooling of tips among employees who customarily
and regularly receive tips.
29 U.S.C. § 203(m) (emphasis added).
Important here, however, under a consistent body of case law, those FLSA conditions
apply only when the employer pays the employee below minimum wage and relies on a tip credit
to supplement that wage. See Chan v. Triple 8 Palace, Inc., No. 03 Civ. 6048 (GEL), 2006 WL
851749, at *15 (S.D.N.Y. Mar. 30, 2006) (“[T]o the extent plaintiffs rely on federal law, they can
prevail only if defendants have relied on the tip credit.”); accord Cumbie v. Woody Woo, Inc.,
596 F.3d 577, 581 (9th Cir. 2010); Garcia v. La Revise Assocs. LLC, No. 08 Civ. 9356
(LTS)(THK), 2011 WL 135009, at *8 (S.D.N.Y. Jan. 13, 2011). Under this line of authority, an
employer’s failure to abide by the requirements the FLSA sets for tip-pooling violates the FLSA
only if, without the tip credit, the employee’s compensation would fall short of the minimum
wage. Here, however, each plaintiff attested to making well above the minimum wage without
the tip credit. See Trinidad Decl. ¶ 2; Janckell Decl. ¶ 2; Jason Decl. ¶ 2; Prospero Decl. ¶ 2;
Solange Decl. ¶ 2. And at argument, plaintiffs’ counsel conceded that Pret does not rely on a tip
credit to calculate employees’ wages.
In an attempt to salvage their tip-credit claim, plaintiffs argue that the employer’s reliance
on a tip credit to achieve the minimum wage is not, in fact, necessary for there to be a violation
of the tip-pooling provisions of the FLSA. They rely on a recent Department of Labor (“DOL”)
regulation, which provides:
Tips are the property of the employee whether or not the employer has taken a tip
credit under section 3(m) of the FLSA. The employer is prohibited from using an
employee’s tips, whether or not it has taken a tip credit, for any reason other than
that which is statutorily permitted in section 3(m): As a credit against its
minimum wage obligations to the employee, or in furtherance of a valid tip pool.
29 C.F.R. § 531.52. Plaintiffs are correct that, under this regulation, the practice in which tips
are shared with employees who do not “customarily and regularly” receive tips is unlawful, even
if the employee’s non-tip wages meet or exceed the minimum wages.11
Tracking the statutory language quoted above, DOL’s regulations provide that a valid tip pool
“can only include those employees who customarily and regularly receive tips,” 29 C.F.R.
§ 531.54, and that, with the exception of tips contributed to such a valid tip pool, “the tip credit
provisions of section 3(m) also require employers to permit employees to retain all tips received
by the employee,” id. § 531.59.
The issue presented for the Court is whether DOL’s regulations accord with the statutory
language. In adopting these regulations, DOL expressed its disagreement with the Ninth
Circuit’s decision in Woody Woo, 596 F.3d at 581, holding that an employer’s failure to abide by
the statute’s tip-credit requirements violated the statute only where, without the tip credit, the
employee’s compensation would fall below the minimum wage. See 76 Fed. Reg. 18,832,
18,841–42 (Apr. 5, 2011). In Woody Woo, the Ninth Circuit began with the background
principle articulated by the Supreme Court that: “In businesses where tipping is customary, the
tips, in the absence of an explicit contrary understanding, belong to the recipient. Where,
however, [such] an arrangement is made . . . , in the absence of statutory interference, no reason
is perceived for its invalidity.” Woody Woo, 596 F.3d at 579 (quoting Williams v. Jacksonville
Terminal Co., 315 U.S. 386, 397 (1942) (emphasis supplied by Woody Woo)). It therefore asked
whether the FLSA imposed such a “statutory interference.” The Ninth Circuit held that the text
of the FLSA unambiguously did not: Section 203(m) “imposes conditions on taking a tip credit
and does not state freestanding requirements pertaining to all tipped employees. A statute that
provides that a person must do X in order to achieve Y does not mandate that a person must do
X, period.” Id. at 581 (emphasis in original).
DOL disagreed, finding the Ninth Circuit’s reading of the FLSA “unsupportable.” 76
Fed. Reg. at 18, 842. DOL stated that “[t]he fact that section 3(m) does not expressly address the
use of an employee’s tips when a tip credit is not taken leaves a ‘gap’ in the statutory scheme,”
which DOL may reasonably fill. Id. at 18, 841. DOL accordingly filled this perceived gap with
the aforementioned regulations, which appear to create a freestanding cause of action for tipped
employees who are forced to share their tips with non-tipped employees, regardless of whether
they are otherwise paid the minimum wage.
The parties vigorously debate whether DOL’s regulations permissibly apply the FLSA so
as to give plaintiffs a cause of action based on Pret’s alleged tip-pooling practices. See Pl. Cert.
Reply 7–8; Dkt. 57 (plaintiffs’ post-argument letter brief); Def. Cert. Br. 17 n.7; Dkt. 59
(defendants’ post-argument letter brief). Pret, in particular, argues that these regulations are
invalid at either step of the governing Chevron analysis. See generally Chevron, USA Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).12 Although the Court need not
resolve this issue definitively on this motion for conditional certification, the Court finds Pret’s
argument more persuasive: The DOL regulations are contrary to the plain language of § 203(m).
The holding of Woody Woo was based on the plain language of § 203(m), and DOL’s
intervening regulations are based on a repudiation of the reasoning in Woody Woo. Cf. Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s
prior judicial construction of a statute trumps an agency construction otherwise entitled to
Chevron deference only if the prior court decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for agency discretion.”).
In this Court’s judgment, however, the analysis in Woody Woo is persuasive: By its
terms, Section 203(m) imposes conditions on tip-pooling arrangements as a means of vindicating
the FLSA’s minimum wage requirement. It is not plausibly read to impose a nationwide
freestanding code of conduct regarding the handling of tip money where the statute’s minimumwage command is otherwise met. See Woody Woo, 596 F.3d at 581; Chan, 2006 WL 851749, at
*15; Chung v. New Silver Palace Rest., Inc., 246 F. Supp. 2d 220, 230 (S.D.N.Y. 2002)
(“Congress gave employers of tipped employees a simple choice: either allow employees to keep
Pret separately argues that, even if the regulations are valid, Pret has not violated them,
because its employees are trained to work interchangeably between the front of the store and the
kitchen, and therefore all or most of them are persons who “customarily and regularly” receive
tips. See Def. Cert. Br. 18–21; Def. Supp. Cert. Br. 4–5.
all the tips that they receive, or forgo the tip credit and pay them the full hourly minimum
wage.”); accord Oregon Rest. & Lodging v. Solis, 3:12-CV-01261-MO, 2013 WL 2468298, at
*6–9 (D. Or. June 7, 2013) (holding relevant DOL regulations to be invalid because § 203(m) is
clear and unambiguous). Had Congress intended to federalize tipping practices—i.e., to mandate
generally that tips are the property of the employee absent a valid tip pool—it could and
presumably would have expressed this intention without keying the tip-pooling requirements to
the tip credit. Reading § 203(m) to implicitly impose such a mandate would render the FLSA’s
references to tip credits superfluous. See Woody Woo, 596 F.3d at 581 (citing United States v.
Menasche, 348 U.S. 528, 538–39 (1955)).
Put differently, contrary to DOL’s regulation, § 203(m)’s silence regarding employers’
use of tips when no tip credit is taken is not a “gap” in the statute left to be filled, so much as an
area of workplace conduct unaddressed by a statute concerned with a different problem entirely:
assuring the payment of minimum compensation to employees. See Williams, 315 U.S. at 397;
see also Oregon Rest. & Lodging, 2013 WL 2468298, at *7–9 (finding no explicit or implicit gap
to be filled in § 203(m)); cf. Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000) (unless the
FLSA prohibits an employer from adopting a policy, that policy does not violate the FLSA).13
Because the Court is highly skeptical that DOL’s regulations permissibly construe the
statute, and because it is undisputed that Pret paid its employees the minimum wage without
taking into account the tip credit, the Court, in its discretion, declines to conditionally certify a
class based on plaintiffs’ tip-pooling claims. For the time being, the Court will not strike the tippooling claims of those plaintiffs who have opted in to the case and who articulate such a theory.
The Court also notes that the primary purpose of the FLSA is “to protect all covered workers
from substandard wages and oppressive working hours.” Barrentine v. Arkansas-Best Freight
Sys., Inc., 450 U.S. 728, 739 (1981). Where, as here, an employee undisputedly is paid
minimum wage, the FLSA’s primary purpose is fulfilled.
However, plaintiffs are on notice that, for these claims to survive what the Court anticipates will
be a motion for summary judgment, they must show, more persuasively than they have to date,
that DOL’s regulations are a valid construction of the statute.
Form of Notice
Plaintiffs also seek approval of a proposed form of notice, which they propose be sent to
all non-exempt employees employed by Pret at the stores approved by the Court within the six
years prior to the filing of the Complaint. Pl. Cert. Br. Ex. A (proposed form of notice).
Plaintiffs further request that Pret provide, in Excel format, the name, title, compensation rate,
hours worked per week, period of employment, last known mailing address, and all known
telephone numbers of all prospective class members. Id. at 2. Plaintiffs also request that the
notice be posted in “a conspicuous location” at each Pret store in New York City. Id. at 2.
Pret objects to the scope, content, and manner of delivery of the notice. Def. Cert. Br. 23.
It argues that a three-year window is more appropriate and that the proposed notice incorrectly
invites employees outside New York City to opt-in to the class, even though plaintiffs only seek
to certify a class of employees situated in New York City. Id. at 24. Pret further argues that
notice should be provided through first class mail and not in-store posting. Id. To the extent that
notification by mail is appropriate, Pret argues it should not have to provide telephone numbers
of potential class members. Id. at 25.
“The FLSA generally provides for a two-year statute of limitations on actions to enforce
its provisions, but allows a three-year limitations period for ‘a cause of action arising out of a
willful violation.’” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999), holding
modified by Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61 (2d Cir. 2003) (citing 29 U.S.C. §
255(a) (1994)). Courts in this Circuit have approved both three- and six-year notice periods,
depending on the facts. Compare Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 410–11
(S.D.N.Y. 2012) (six years) (collecting cases); Schwerdtfeger v. Demarchelier Mgmt., Inc., No.
10 Civ. 7557 (JGK), 2011 WL 2207517, at *6 (S.D.N.Y. June 6, 2011) (six years); Klimchak v.
Cardrona, Inc., No. 09 Civ. 04311 (SJF), 2011 WL 1120463, at *7 (E.D.N.Y. Mar. 24, 2011)
(six years); and Pineda v. Jim-Mar Consultants, Inc., 741 F. Supp. 2d 403, 404 (E.D.N.Y. 2010)
(six years), with Hamadou, 2013 WL 164009, at *15 (three years); Lujan, 2011 WL 317984, at
*9 (three years); and McBeth v. Gabrielli Truck Sales, Ltd., 768 F. Supp. 2d 396, 400 (E.D.N.Y.
2011) (three years) (collecting cases).
The courts that have approved six-year notice periods have cited the economy of
providing notice to plaintiffs with FLSA claims who may also have NYLL claims subject to a
six-year statute of limitations. See, e.g., Winfield, 843 F. Supp. 2d at 410–11; Schwerdtfeger,
2011 WL 2207517, at *6; Klimchak, 2011 WL 1120463, at *7. By contrast, the courts that have
approved three-year notification windows have cited the confusion caused by notifying plaintiffs
who potentially have two disparate claims with different statutes of limitations, along with the
inefficiency of providing notice to plaintiffs whose claims may well be time-barred. See e.g.,
Hamadou, 2013 WL 164009, at *15; Lujan, 2011 WL 317984, at *9; McBeth, 768 F. Supp. 2d at
Here, the latter rationale is more persuasive. The motion before the Court is only for
collective certification of a FLSA opt-in class, and not class certification under Fed. R. Civ. P. 23
for claims under the NYLL. See Lujan, 2011 WL 317984, at *9. The Court’s discretion to
facilitate notice of FLSA claims is premised on its case management authority; that authority is
“distinguishable in form and function from the solicitation of claims.” Hoffman-LaRoche, 493
U.S. at 174. Authorizing notice for a time period twice the length of the maximum FLSA
limitations period would not serve the efficiency goal articulated in Hoffman. Thus, the Court
orders that notification be sent to all non-exempt employees of the six Pret locations listed,
whom Pret employed in the three-year period before the filing of the Complaint.14
The Court also permits the posting of notice in a non-public area of the six Pret locations
listed above, such as in a break room or near the clock-in station. Courts in this Circuit
frequently approve posting in the workplace. See, e.g., Garcia v. Pancho Villa’s of Huntington
Vill., Inc., 678 F. Supp. 2d 89, 96 (E.D.N.Y. 2010) (collecting cases); Malloy v. Richard
Fleischman & Assocs. Inc., No. 09 Civ. 322 (CM), 2009 WL 1585979, at *4 (S.D.N.Y. June 3,
2009); Rubery v. Buth-Na-Bodhaige, Inc., 569 F. Supp. 2d 334, 338 (W.D.N.Y. 2008) (“[I]t will
not be overly burdensome to require defendant to post a hard copy of the class notice on each of
its employee common area bulletin boards.”); Sherrill v. Sutherland Global Servs., Inc., 487 F.
Supp. 2d 344, 351 (W.D.N.Y. 2007) (“[Defendant] is hereby required to post continuous notice
of this action and opt-in forms in a conspicuous location in each of its call centers . . . . This
method, along with the mailing of notices, strikes the appropriate balance between ensuring
adequate notification, while also minimizing any disturbance to Sutherland’s workplace.”)
Pret stated at argument that posting in the Pret stores will be unnecessarily disruptive and
will start a conversation among employees. That argument is unpersuasive. A purpose of notice
is to start a conversation among employees, so as to ensure that they are notified about potential
violations of the FLSA and meaningfully able to vindicate their statutory rights. The Court also
finds plaintiffs’ request for prospective class member information reasonable, save that it is
Because equitable tolling issues often arise as to individual opt-in plaintiffs, “courts frequently
permit notice to be keyed to the three-year period prior to the filing of the complaint, ‘with the
understanding that challenges to the timeliness of individual plaintiffs’ actions will be
entertained at a later date.’” Hamadou, 2013 WL 164009, at *15 (quoting Winfield, 843 F. Supp.
2d at 410 (other citations omitted)). Should equitable tolling issues arise in this case after
conditional certification as to particular plaintiffs, the Court will timely address those issues.
unnecessary for Pret to provide the telephone numbers of prospective class members. First-class
mail and in-store posting is sufficient to provide notice to potential opt-in class members. See
Rubery, 569 F. Supp. 2d at 338 (ordering only mailed and posted notice where “plaintiff has
made no showing that would justify going beyond the belt-and-suspenders approach of utilizing
both mailed and posted notices, and requiring defendant to further notify its employees via
company e-mail and newsletter publications”); Sherrill, 487 F. Supp. 2d at 351 (finding a
proposal to e-mail, physically post, mail, and publish notice in an employee newsletter to be
“broader than necessary”). Pret should provide all other requested information within 10 days of
For the foregoing reasons, the Court grants collective certification for a class consisting
of all non-exempt employees who have worked at Pret during the three years prior to the filing of
the Amended Complaint at the following six stores in New York City: 1200 Avenue of the
Americas, 630 Lexington Avenue, 50th Street and 7th Avenue, 32nd Street and Park Avenue,
48th Street and Madison Avenue, and 16th Street and Broadway. Plaintiffs are directed to
submit a revised form of Notice consistent with this Order within two weeks. Within 10 days of
the Court's approval of that Notice, it shall be posted in a non-public space at these locations.
Pret shall provide plaintiffs with the specified information about prospective class members
within 10 days of this Order.
Pret's motion to strike is denied. The Clerk of Court is directed
to terminate the motions pending at docket numbers 17 and 45.
United States District Judge
Dated: July 11, 2013
New York, New York