Hernandez v. Bare Burger Dio Inc. et al

Filing 23

OPINION re: 17 MOTION to Certify Class filed by Gabino Hernandez. For the foregoing reasons, Plaintiff's Motion for Conditional Collective Action Certification, for approval of its notice and consent forms, to compel production of contact information, and to post the notice and consent forms at Defendants' restaurant is granted. (Signed by Judge Robert W. Sweet on 6/18/2013) (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----- --- -------------------------x
GABINO HERNANDEZ,

On behalf of himself, FLSA Collective

Plainti
and the Class,

Pla

iff,
12 Civ. 7794

- against
OPINION
BARE BURGER DIO INC., BAREBURGER INC.,
BAREBURGER GROUP LLC, GEORGE RODAS,
GREGORY DELLIS, and EFTYCHIOS
PELEKANOS,
Defendants.

----- ---- --- -------------------X
A P PEA RAN C E S:

Attorne

aintiff GABINO HERNANDEZ

LEE LITIGATION GROUP, P.L.L.C.

30 East 39th Street, Second Floor

New York, New York 10016

By: C. K. Lee, Esq.

Attorneys for Defendants BARE BURGER et al

GORDON & REES, LLP

90 Broad Street, 23rd Floor

New York, New York 10004

By:
Jeffrey Spiegel, Esq.

Michael Vollbrecht, Esq.
Ronald A. Giller, Esq.

(RWS)

Sweet, D.J.

Plaintiff Gabino Hernandez ("Mr. Hernandez" or"

intiff")

seeks Conditional Collective Certification pursuant to

Fair

Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), and New York
Labor Law ("NYLL"), as well as Court-facilitated notice of this
action to Covered Employees and compelled discovery against
Defendants Bare Burger Dio Inc., Bareburger Inc., Bareburger
Group LLC, George Rodas, Gregory Dellis, and Eftychios Pelekanos
(collectively, "Defendants" or "Bareburger"). For the reasons
set forth

low,

aintiff's Motion for Conditional Collective

Action Certification, for approval of its notice and consent
forms, to compel production of contact information, and to post
the notice and consent forms at Defendants' restaurant is
granted.
I. PRIOR PROCEEDINGS

The Plaintiff filed this lawsuit against Defendants on
October 18, 2012 seeking unpaid wages under the FLSA and NYLL.
Plaintiff brought the FLSA claims on behalf of himself and all
non-exempt employees employed by Defendants in any tipped
pos

ion within the last three years ("Covered Employees" or

"tipped employees").

The Complaint alleges that Defendants (1)

iled to pay Covered Employees the proper minimum wage under
1

the FLSA and NYLLi

(2)

failed to pay Covered Employees the

proper overtime premium under the FLSA and NYLL and (3)

iled

to pay Covered Employees spread of hours premium under NYLL.
On May 2, 2013, Plaintiff filed a motion seeking
following: Conditional certification of this action as a
representative collective action; Court facilitated notice of
this action to Covered Employees including a consent form (opt­
in form); approval of t

proposed FLSA notice of this action

and consent formi production

Excel format by Defendants of

names, title, compensation rate, hours worked per week, period
of employment, last known mailing addresses and all known
telephone numbers of Covered Employees within 10 days of the
Court's Order approving the motion; and posting of the notice in
a conspicuous location at the Bareburger restaurant operated by
Defendants.

This motion was marked heard and fully submitted on

May 29, 2013.
II .

BACKGROUND

Defendants operate a restaurant enterprise under t

trade

name "Bareburger,H located at 535 LaGuardia Place, New York, New
York, 10012.
Plaintiff was employed by Defendants as a delivery person
from in or about October 2011 until in or about May 2012.
2

(Declaration of Gabino Hernandez ("Hernandez Decl."); <[[ 1.)

At

all times during his employment, he was a tipped employee.
(Id.)

Plaintiff alleges that during his employment, he was paid

a regularly hourly rate of $4.00 per hour from October 2011 to
January 2012, and $5.00 per hour from January 2012 to May 2012,
in violation of the statutory minimum wage rate required for all
tipped employees.

(Id.

~~

2-3.)

Plaintiff also alleges that he

worked in excess of 40 hours per week and was not compensated
with the statutorily required overtime pay.
specifi

ly, Plaintiff alleges that Defendants

provide proper tip credit because they:
proper notice under the FLSA and NYLL;
calculate overtime rate;

<J[

5.}

More

led to

(I) did not provide
(2) fail

to properly

(3) caused him to engage in non-tipped

duties exceeding 20% of his workday including cooking, preparing
food, and cleaning the restaurant and (4) did not provide proper
wage statements informing
for each payment period.

aintiff of the amount of tip credit
(Plaintiff's Memorandum ("Mem.") at

6. )

In addition, Mr. Hernandez maintains that during his
employment, he personal

observed that other tipped employees

were also paid below the statutory wage, worked
hours per week without being properly compensated

excess of 40
r overtime,

were not provided proper written wage notice or tip credit
3

notice, and were often required to engage in non-tipped
activit

4-7. )

s exceeding 20% of their workday.

(Hernandez Decl.

~~

Furthermore, Mr. Hernandez asserts that he regularly

exceeded ten hours per work day without any spread of hour
premium, and personally observed that no employee employed by
Defendants received any spread of hour payments even when
workday exceeded ten hours per day.

(Id.

~

ir

8.)

Plaintiff asserts that Covered Employees, including Mr.
Hernandez, are owed compensation for unpaid (1) minimum wage,
(2) overtime pay,

(3)

liquidated damages, and (4) attorneys

and expenses.
IV.

STANDARD OF REVIEW

Courts generally determine the appropriateness of class
certification at two stages: first, on the initial motion for
conditional class certification, and second, after discovery.
Fasanelli v. Heartland Brewery, Inc.,

516 F. Supp. 2d 317, 321

(S.D.N.Y. 2007); see also Cuzco v. Orion Builders, Inc., 477 F.
Supp. 2d 628, 632 (S.D.N.Y. 2007).
dete

Following this

nation, notification of class members proceeds according

to a court-ordered plan, providing the opportunity for those
notified to "opt-in" to the action.
at 321.

Fasanelli,

516 F. Supp. 2d

After discovery, the Court re-examines the record to
4

determine whether the claimants are indeed similarly situated.

Id. If they are not, the class can be decertified at that time
and the claims of dissimilar "opt-in" plaintiffs dismissed
without prejudice. Id.
When determining whether a matter shall proceed as a
collective action, courts should be mindful of the remedial
purposes of the FLSA. See, e.g., Braunstein v. Eastern
Photographic Laboratories, Inc., 600 F.2d 335, 336 (2d Cir.
The FLSA allows employees to sue on behalf of

1978).

themselves and other employees who are "similarly situated." 29
U.S.C.

§

216(b). Similarly situated employees may opt in to the

lawsuit and become party plaintiffs by filing written consent
with the court. Krueger v. New York Telephone Co., 1993 WL
276058 at *2 (S.D.N.Y. July 21, 1993). Plaintiffs can meet this
burden by making "a modest factual showing sufficient to
demonstrate that they and potential plaintiffs together were
victims of a common policy or plan that violated the law,"
Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261

(S.D.N.Y.1997),

such as when they are all "employees of the same restaurant
enterprise and allege the same types of FLSA violations.1f
Fasanelli, 516 F. Supp. 2d at 323.

Therefore, the appropriate

inquiry at this pre-discovery stage is whether the putative
class alleged by Plaintiffs is similarly situated based on the
5

pleadings and any affidavits.
class certi

Id (holding that "the in it

1

nation must be made on preliminary

cation dete

documents such as pleadings and affidavits, which necessarily
contain unproven allegations") i see also Lynch v. United Servcs.
Auto. Ass'n, 491 F.Supp.2d 357, 367-68

(S.D.N.Y.2007)

demonstrating that potential plaintif

"burden
'simil

(the

are

y situated' is very low at the notice stage./f); Anglada

v. Linens

'N Things, Inc., 2007 WL 1552511, at *4

(S.D.N.Y.

April 26, 2007).
V. PLAINITFF'S MOTION FOR CONDITOINAL COLLECTIVE CERTIFICATION
IS GRANTED

Plaintiff contends that the allegations in the pleadings
and declaration of Mr. Hernandez are suf

cient to make t

modest factual showing necessary to conditionally certify t
class.

Indeed, courts in this circuit have routinely granted

conditional collective certification based solely on the
personal observations of one plaintiff's affidavit.
at 3-4.)

For instance, in

(See Mem.

arte v. Redwood Deli and Catering,

Inc., No. 07 Civ. 5062, 2008 WL 2622929, at *3

(E.D.N.Y. June

30, 2008), the court granted conditional collective
certification on one pI

ntiff's declaration of observations of

widespread practices in combination with discovery responses by
defendants showing that they kept no records on any of their
employees.

Id.

In Khamsiri v. George & Grank's Japanese Noodle
6

Rest. Inc., No. 12 Civ. 0265, 2012 WL 1981507, at *1 (S.D.N.Y.

June 1, 2012), the court likewise granted conditional col
certification based on a single af

ive

davit of an emp

alleging only based on personal observations that she and other
employees in tipped positions, who performed work "similar" to
hers, were paid

ss than the statutory minimum and not

compensated for overtime.

Id.;

see also Bowens v. Atlan

Maintenance Corp., 546 F.Supp.2d 55, 82

certification de

(E.D.N.Y.2008)

c

(allowing

te any corroborating factual evidence aside

from employee's affidavits as to the practices of the
defendants).

Similarly in Sanchez v. Gansevoort Mgmt. Grp.,

Inc., No. l2-Civ-265

(PAE), 2013 WL 208909 (S.D.N.Y. Jan. 10,

2013), the court found that plaintiffs had satisfied the "light
burden" at the first stage of certi

cation based on an

affidavit swearing that the employee "observed" other s
s

larly

uated employees treated with the same illegal policies by

defendants.

esias-Mendoza v. La Belle

Id. at *1; see also

Farm, Inc., 239 F. R. D. 363, 368 ( S . D. N . Y. 2007)

(\\ PIa i n t iff s

have easily made the modest showing that is requi

of them at

this preliminary stage: they were subjected to certain wage and
hour practices at t

defendants' workplace and to the best of

their observations, their experiences were shared by members of
the proposed class.").
7

Here, Plaintiff has submitted a declaration by Mr.
Hernandez confirming that he and other non-exempt employees
employed by defendants in tipped positions, who performed work
similar to his, were, inter alia, paid less than the statutory
minimum wage, not paid overtime pay, did not receive tip credit
notice or proper written wage notice, did not receive any spread
of hour premium and were required to engage in non-tipped
activities exceeding 20% of the workday.
8.).

(Hernandez Decl.

~~

3

Accordingly, Plaintiff has met his burden, and conditional

collective action certification for all non-exempt employees
employed by Defendants in any tipped position within the last
three years is authorized.

See, e.g., Khamsiri, 2012 WL 1981507

at *1 (approving conditional collective certification based on
single plaintiff's affidavit "confirming that she and other non­
exempt employees employed by defendants in tipped positions, who
rformed work similar to hers, were, inter alia, paid less than
the statutory minimum wage and not paid overtime pay.") .
In addition, Plaintiff at this stage sufficiently alleges
that all tipped employees were subjected to Defendants' common
policies violating the FLSA.

(Hernandez Dec1.

~~

Ii

4.)

The

policies in question affect any employee at Bareburger whose
salary depends on tips, and Plaintiff alleges that these
employees did work that was the "same or similar" as his
8

employment.

(Id.)

This is sufficient at this stage to satisfy

the "very low" burden that Covered Employees are "similar
situated."

Lynch, 491 F. Supp. 2d at 368; see also Mendez v.

Pizza on Stone, LLC et ai, No. 11 Civ. 6316, 2012 WL 3133547, at
*2 (S.D.N.Y. March 29, 2012)

(granting conditional certification

for all non-exempt employees, including waiters, runners,
bussers, and cooks, when the single plaintiff was a del

ry

person); Khamsiri, 2012 WL 1981507 at *1 (allowing certification
for all tipped employees based on plaintiff affidavit that
tipped employees are similarly situated); Summa v. Hofstra

University, 715 F. Supp. 2d 378, 383 (E.D.N.Y. 2010)

(holding

that variations in positions and job functions do not at the
preliminary stage prevent certification where plaintiff showed
only that "plaintiff and the potential plaintiffs held the same
or similar positions, were subject to the same pol

ies and were

not paid the federal minimum wage and did not receive overtime
compensation

r hours worked in excess of 40 hours in any given

week" in violation

the FLSA): Colozzi v. St. Joseph's

Hospital Health Center, 595 F. Supp. 2d 200, 207 (N.D.N.Y. 2009)
(holding that putative class members' hundreds of job positions
do not "necessa

ly undermine plaintiff's motion since under

section 216(b) parties may be similarly situated, despite not
occupying the same positions or performing the same job
9

functions and in the same locations, provided that they are
subject to a common unlawful policy or practice.,,).l

VI.

NOTICE TO "SIMILARLY SITUATED" EMPLOYEES IS APPROPRIATE
Plaintiff further requests that the Court authorize

expedited notice of
Covered

s action to be sent to all potential

oyees, and not delay t

sending of this notice

until the completion of discovery.
The Supreme Court has recognized that
collect

action accrue to pIa

benefits of

iffs only if they "rece

[e]

accurate and timely notice concerning the pendency of the
collective action, so that they can make
about whether to
Spe r 1

g, 4 93 U. S.

icipate." Hoffman-La

rmed decisions

Inc. v.

1 65 , 1 7 0 ( 1 98 9). "[ I ] t 1 i e s wit h i n t

discretion of a district court to begin its involvement [in the
notice process] early, at the point of the

tial notice." Id.

1 Defendants cite only one case in
of their position that Plaintiff
has not adequately
that the Covered Employees are simil
situated
or that Defendants exhibited a common policy of FLSA violations.
(Mem. Opp.
at 4.)
However, in Barfield v. N.Y. City Health & Hasps. Corp. cited by
Defendants, the
ff herself chose to sign with multiple referral
so that she could work more than 40 hours in a given week, and did
not anywhere show that the hospital was aware of this, had any
icy
to evade FLSA requirements, or that there was any agreement between
the referral
and the
to ensure this violation. No. 05-Civ­
6319 (JRS) , 2005 WL 3098730, at *1 (S.D.N.Y. Nov. 18, 2005). This case is
here, where Plaintiff
y
FLSA violations
from his employer and
ly observed these
used
other employees.
(Hernandez Decl. 'lI'lI Ii 4.)

10

at 171; see alsoRaniere v. Citigroup Inc., 827 F. Supp. 2d 294,
327 (S.D.N.Y. 2011)

(internal citations omitted)

("The Second

rcuit has recognized a district court's authority to order
that notice be given to potential members of a plaintiff class
in actions under this section (generally-referred to as
'collective actions'), pursuant to the opt-in provisions of the
FLSA. ") .

monitoring preparation and distribution of the

"

notice, a court can ensure that it is timely, accurate, and
informative."

Raniere, 827 F. Supp. 2d at 327

La Roche Inc.,

(citing Hoffman

493 U.S. at 170).

Here, "court-authorized notice is appropriate, to prevent
erosion of

aims due to the running statute of limitations, as

well as to promote judicial economy."

Khamsiri, 2012 WL

1981507, at *1; see also Lynch, 491 F.Supp.2d at 371.
t

The Court

fore approves Plaintiff's notice and consent forms as

submitted.

See id.; see also Garcia v. Pancho's Villa of

Huntington Vill., Inc., No. 0

486, 2012 WL 1843785, at *3

(E.D.N.Y. May 21, 2012).

A. Discovery or Names and Contact Inrormation or
qpt-In P~aintirrs is Proper Under § 216(b)

Potentia~

Plaintiff additionally requests that the Court direct
Defendants to produce the: "names, title, compensation rate,
hours worked per week, period

employment, last known mailing
11

addresses, alternate addresses (if any), and all known telephone
numbers of all Covered Empl

es" employed by Defendants at any

point in the past three years.
oppose this request. As

(Mem. at 13.) Defendants do not

been noted by a number of courts in

this circuit, "[c]ourts often grant this kind of request in
connection with a conditional certification of an FLSA
collect

action." Sexton v. Franklin First

cial, Ltd.,

No. 08-Cv-04950 (JFB) (ARL) , 2009 WL 1706535, at *13 (E.D.N.Y.
June 16, 2009); see also Vaughan v. Mortga
Cv-4737
2010)

Source

, No. 08­

(LDW) (AKT) , 2010 WL 1528521, at *9 (E.D.N.Y. April 4,

("Courts within the Second Circuit typically grant this

type of request when granting a motion for conditional
certification of an FLSA collective action"); see also
Siewmungal v. Nelson Mgmt. Grp. Ltd., No. 11-Cv-5018, 2012 WL

715973, at *5 (E.D.N.Y. Mar. 3, 2012)

(discovery of contact

information is appropriate at the notice stage of FLSA actions);
Lynch, 491 F.Supp.2d at 371 (same); Chowdhury v. Duane Reed
Inc., No. 06-Civ-2295 (GEL), 2007 WL 2873929, at *2 (S.D.N.Y.

Oct. 2, 2007)

(same); Anglada, 2007 WL 1552511, at *7; Hens v.

ClientLogic Operating Corp., 2006 WL 2795620, at *5

Sept. 26, 2006)
this case.

(W.D.N.Y.

(same). Such a request is likewise appropriate
Accordingly, Defendants shall produce to

Plaintiff a computer-readable list of the names, addresses,
12

compensation rates, telephone numbers, and dates of employment
all tipped non-exempt employees employed by Defendants from
June 18, 2010 to present.

This in

rmation shall be produced

within 15 days from the entry of this Order.

B. Posting o£ Notice and Consent For.ms is Proper under §
216(b)
ainti

Finally,

seeks Court ordered access to

Defendants' restaurant to post the notice and consent forms.
Defendants do not oppose this request. "Such posting at
place

employment of potenti

approved by Courts.

II

opt

plaintiffs is regularly

Khamsiri, 2012 WL 1981507, at *1 (citing

Ack v. Manhattan Beer Distributors, Inc., No. 11-Cv-5582 (CBA),

2012 WL 1710985, at *6 (E.D.N.Y. May 15, 2012)); Jacob v. Duane
Reade, Inc., No. 11-cv-6160, 2012 WL 260230, at *10 (S.D.N.Y.

Jan. 27, 2012)

(collecting cases)). Plainti

refore, grant

13

's request is,

VII. CONCLUSION

For the

regoing reasons,

a

Conditional Collective Action Certi
notice and consent forms, to

iff's Motion for
cation, for approval of its

1 production of contact

information, and to post the notice and consent forms at
Defendants' restaurant is grant
It is so ordered.
New York, NY
June
J
2013

y.

14