Hernandez v. NGM Management Group LLC et al

Filing 28

OPINION re: 12 MOTION to Certify Class filed by Gabino Hernandez. For the foregoing reasons, Plaintiff's motion is granted. (Signed by Judge Robert W. Sweet on 9/18/2013) (cd)

UNITED
S DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------X
GABINO
DEZ,
on behalf of himself, FLSA Col
Plaintiffs
the Class,

ct

Plaintiff,
12 Civ. 7795 (RWS)
- against
OPIN
NGM MANAGEMENT GROUP LLC d/b/a/
BAREBURGER CHELSEA, et al.,
Defendants.

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-­

--------­

--X
t

,
USDCSONY
DOCUMENT
t
EI,ECTRONfCALLY nLED ;
I

A P PEA RAN C E S:

OOC if:
Attorneys for Plaintiff
LEE LITIGATION GROUP, P.L.L.C.

30 East 3 h Street, Second
oor

New York, New York 10016

By: C. K. Lee, Esq.

PALMERI &
80 Maiden
New York,
By:
John

GAVEN
Lane, Suite 505
NY 10038
J. Palmeri, Esq.

r..

DATE FILEt>: j

>

170 13

,

ft

Sweet, D.J.

aintiff Gabino Hernandez ("Hernandez" or
"Plaintiff") has moved
collect

r an order (i) granting conditional

action certification pursuant to the Fair Labor

Standa

Act

("FLSA"), 29 U.S.C. § 216(b}, and New York

Law ("

),

collect

action,

(ii) providing for court(iii)

Group LLC d/b/a Bareburger

ilitated notice of the

lling de

s NGM Management

lsea, Nikos Karaiskos, Mi

I

Pitsinos, and George Hadj

(collect

"Bareburger") to produce certa

information to Plaintiff, and

(iv) provi

notice at t

for posting

by Defendants.
motion is

ly, "Defendants" or

restaurant owned

For the reasons set forth below,

Plaintiff's

ed.

Prior Proceedings

The Plaintiff filed this lawsuit against Defendants on
October 18, 2012, seeking unpaid wa
aintiff has
h

to assert

FLSA claims on

If and all non-exempt emp

any tipped posit
loyees" or "t

s under the FLSA and NYLL.
If of

s employed by De

within the last six years
employees").
1

s in

("Covered

Plaintiff's compla

(the

"Complaint") has alleged t
Covered Employees the p

t Defendants failed to pay the
nimum wage under the FLSA and

r

NYLL.

On May 3, 2013,

aintiff

led the instant motion,

which seeks the following:

tional certification of the

action as a representative col

ctive action; court-facilitated

notice of this action to Cove

I

form (opt-in form); approval of the p
action and consent form; product

week,

s

FLSA notice of this

Excel format by

s of names, title, compensat

De

s including a consent

rate, hours worked per

riod of employment, last known mailing addresses and all
telephone numbers of Covered Empl

the Court's Order approving the motion;

es within 10 days of
posting of the

notice in a conspicuous location at the Barebu
rat

r restaurant

by Defendants.

The motion was marked fully

on

Y 8, 2013.

Background

De
trade name "

s operate a restaurant enterprise

r the

r," located at 153 8 th Avenue, New York.
2

Plaintiff was employed by Defendants as a delivery person from
on or

il 30, 2012 until on or about May 29, 2012.

(Declarat

of Gabino Hernandez

s

ing his employment,

all t

("He

.") 1 1).

z

At

was a tipped employee.

(Id. )

iff alleges that during his

loyment, he was paid

a regular

hourly rate of $4.50 per hour,

in violation of the

statut

nimum wage rate required for all tipped employees.

(Id.

11 2-3.)

Plaintiff additionally aIle

failed to

s that Defendants

proper tip credit because t

y:

provide proper notice under the FLSA and NYLLi
engage in non-t

duties exceeding 20

of his workday

ring food,

and (3) did not

proper wage statements in

(Id.

did not

(2) caused him to

including coo

Plaintiff of

and c

(1)

ni

amount of tip credit for each

restaurant

t

rming
yment period.

11 4-7.)

In addition, Hernandez maintains that
employment, he

rsonal

ri

his

s

observed that other ti

were also paid below the statutory wage, worked in excess of 40
properly compensated for overt

hours per week without
were not provided

r written wage notice or tip cre

notice, and were often
activities exceeding 20% of t

to engage in non-tipped
ir workday.

3

(Id.

1<JI 3-7.)

t

Hernandez asserts that
compensat ion for

Covered Employees are owed

(l) unpaid minimum wage,

damages, and (3) attorneys

es and e

(2) liqui

ed

ses.

Applicable Standard

s generally determine the appropriateness of
class certification at two st
for conditional
scovery.

s: first, on the in

ass certification, and second, after

2d 317, 321 (S.D.N.Y. 2007); see also
Inc., 477 F. Supp. 2d 628, 632

determination, notification of

det

in" to

(S.D.N.Y. 2007).

Follow

r those

Fasanelli, 516 F. Supp. 2d

s are
ass can

ssimilar "

s

ass members proceeds according

action.

whether the cla
If they are not, the

Wl

v. Orion Builders,

, the Court re-examines the

r dis

and the claims of

CU2CO

plan, providing the opportunity

to a court-orde

at 321.

516 F. Supp.

Fasanelli v. Heartland Brewery, Inc.,

notified to "

ial motion

similarly situated.
decertified at that time

-in" pla

prejudice. Id.

4

to

iffs dismissed

When determini
collect

whether a matter shall proce

action, courts should be

purposes of

FLSA.

as a

of the

, e.g., Braunst

n v.

1

Eastern

Photographic Laboratories, Inc., 600 F.2d 335, 336 (2d Cir.

1978) .

FLSA allows

themselves
U.S.C.

§

loyees to sue on behalf of
s who are "s

other

la

y situat

." 29

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

lawsuit and become party plaintiffs by fil

written consent

with the court. Krueger v. New York Telephone Co., 1993 WL
276058 at *2 (S.D.N.Y. July 21, 1993). Plaintif
burden by rna

"a modest

demonstrate

they and potent

1 showing sufficient to
1 plaintiffs

ctims of a common policy or plan that violat
Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261

such as when

are all "emp

enterprise and all

s of FLSA

the same t

ry at this
class alleged by Pl

iffs is s
ts.

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

olations."
appropriate

is whether the putative
la

Id.

class certification

ermination must

documents such as pl

gs and affi

contain unproven al

law,"

t

Therefore,

scovery sta

ngs and any af

ther were

s of the same restaurant

Fasanelli, 516 F. SUpp. 2d at 323.

p

can meet this

y situated bas

ng that "the initial
made on p
its, which necess

ions"); see also Lynch v. Unit
5

on the

ry
ly
Servcs.

Auto. Ass'n, 491 F.Supp.2d 357, 367 68

"burden

strating that

(S.D.N.Y.2007)

ia1 plaintiffs are

'similarly situated' is very low at the notice st
v. Linens

IN

(the

.") i

Anglada

n g s, Inc., 2007 WL 1552 511 , at * 4 ( S . D. N . Y .

April 26, 2007).

Plaintiff's Motion For Conditional Certification Of Collective
Action Is Granted

Plaintiff contends that the allegations in t

z' declarat

eadings and
modest factual show
class.

Indeed, courts

conditional collect

are sufficient to make the

necessary to

tionally certify t

this Ci
certification

routinely

s

solely on the

personal observations of one plaintiff's affidavit.

(See Mem.

For instance, in Iriarte v. Redwood Deli and Ca

at 3-4.)

ng,

Inc., No. 07 Civ. 5062, 2008 WL 2622929, at *3 (E.D.N.Y. June

30, 2008), the court
certification on one p

w

ed condit

1 collective

iff's declarat

spread practices in combination with
s showing that they kept no

empl
Rest.

s.

Id.

In

of observations of
scovery responses
on any of their

v. George & Grank's Japanese Noodle

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

June 1, 2012), the court likewise granted
6

ional collective

certification based on a single affidavit of an employee
alleging only based on personal observations that she and other
employees in tipped positions, who per

rmed work "similar" to

hers, were paid less than the statutory minimum and not
compensated

r overtime.

Id.; see also Bowens v. Atlantic

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

(E.D.N.Y.2008)

(allowing

e any corroborating factual evidence aside

from employee's affidavits as to the practices of t
defendants).

S

larly in Sanchez v. Gansevoort Mgmt. Grp.,

Inc., No. 12-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 certification bas

on an

affidavit swearing that the employee "observed" other similarly
situated employees treated with the same ille
fendants.

es by

esias-Mendoza v. La Belle

Id. at *1; see also

Farm, Inc., 239 F.R.D. 363, 368

1 poli

(S.D.N.Y. 2007)

("Plaintiffs

have easily made the modest showing that is required of them at
this preliminary stage: they were subject
hour practices at the

to certain wage and

fendants' workplace and to the best of
s were shared by members of

their observations, their exper
the proposed class.").

7

Here,

Plaintiff has submitted a de

aration confirming

that he and other non-exempt employees who were employed by
fendants in tipped positions and who

rformed work similar to

his, were paid less than the statutory minimum wage, did not
receive tip credit notice or proper written wage notice and were
requi

to engage in non-tipped activities exceeding 20% of the

workday.

(Hernandez Decl.

~~

3-8.).

Acco

ngly,

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
col

ive certification based on single plaintiff's affidavit

"confirming that she and other non-exempt employees employed by
defendants in tipped positions, who

rformed work simi

r to

hers, were, inter alia, paid less than the statutory minimum
wage and not paid overtime

In addition,

y.").

intiff at this stage has sufficiently

alleged that all tipped employees were subjected to Defendants'
common practices and poli
Decl.

~~

3 7.)

s that violated the FLSA.

(Hernandez

stion affect any employee at

The policies in

Bareburger whose salary depends on t

s, and Plaintiff alleges

that these employees did work that was the "same or similar" as
8

s employment.

(Id.)

These aIle

tions are sufficient to

sat is

the "very low" burden upon PIa

C

Employees are "similarly situat

2d at 368; see also Mendez v.
Civ.

iff to show that

"

Lynch,

491 F. Supp.

zza on Stone, LLC et al, No. 11

16, 2012 WL 3133547, at *2 (S.D.N.Y. March 29, 2012)

(grant

conditional certification

all non-exempt

s, including waiters, runners, bussers, and cooks, when

s

aintiff was a delivery

rson) i Khamsiri,

1981507 at *1 (allowing certification
ba
situat

o

es are similarly

)i Summa v. Hofstra University, 715 F. Supp. 2d 378, 383

(E.D.N.Y. 2010)

(holding that variations

s

not at the preliminary stage

functions
where

r all tipped employees

aintiff affidavit that tipped

on

ainti

ions and job
certification

showed only that "pIa inti

potential

same or similar positions, were subject to

plaintif
the same poli

es and were not paid the

ral

nimum wage and

did not receive overtime compensation for hours wor

's Hospital Health Center, 595 F. Supp. 2d

Colozzi v. St. Jos

(N.D.N. Y. 2009)

hundreds of job

(holding that putative class members'

itions do not "necessarily

plaintiff's motion s
similarly si

in excess

week" in violation of the FLSA);

of 40 hours in any

200, 207

2012 WL

ne

under section 216(b) parties may be
spite not occupying the same pos
9

ions or

performi

same job functions and in the same locations,

provided t

they are subject to a cowmon unlawful policy or

practice. If)

•

Notice To All "Similarly Situated" Employees Is Appropriate

iff further requests that the Court aut

a

expedited notice of this action to
Covered Empl

es, and not delay t

ize

sent to all potential
sending of this notice

until the completion of discovery.

Court has

The

zed that the benef

collective action accrue to plaintiffs only if they "rece
ly notice concerning

accurate and t

s of
[eJ

pendency of the

collective action, so that they can make informed decisions
about whether to

rticipate.

If

Hoffman-La Roche Inc.

v.

Sperling, 493 U.S. 165, 170 (1989). "[I]t lies within the

scretion of a

st

notice process] ea

ct court to begin

s involvement [in t

y, at the point of the initial notice." Id.

at 171; see also Raniere v. Citigroup Inc.,
327
Ci
t

(S.D.N.Y.

2011)

827 F. Supp. 2d 294,

(internal citations omitted)

has recognized a district court's author
notice be given to

("The Second
y to order

ial members of a plaintiff class
10

actions under
'col

ive act

FLSA.").

s section (generally-referred to as
s'), pursuant to the opt-

"By monitoring preparation and

notice, a court can ensure

provisions of the
stribution of the

it is timely, accurate,

informative."

Raniere, 827 F. Supp. 2d at 327

La Roche Inc.,

493 U.S. at 170).

(citing Hoffman-

Here, "court-authorized notice is appropriate, to
prevent erosion of claims due to the running statute of
limitations, as well as to promote j

cial economy."

Khamsir i,

2012 WL 1981507, at *1; see also Lynch, 491 F.Supp.2d at 371.
Court

refore approves Plaintiff's notice and consent

forms as submitted.

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

of Huntington Vill.,

Inc., No. 09-cv-486, 2012 WL 1843785, at *3

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

Discovery of Names and Contact Information of Potential Opt-In
Plaintiffs is Proper Under § 216(b)

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

ternate addresses

oyment, last known mailing

(if any), and all known telephone

numbers of all Covered Employees employed by Defendants at any
11

po

in the past three years.

request.

As has

en not

Defendants do not oppose this

by a number of courts in this

rcuit, "[c]ourts often grant this kind of request in
connection with a conditional certification of an FLSA
collective action." Sexton v. Franklin First Financial; Ltd.,
No. 08-Cv-04950 (JFB) (ARL), 2009 WL 1706535, at *13 (E.D.N.Y.
June 16, 2009)
Cv-4737
2010)

see also Vaughan v. Mortgage Source LLC, No. 08­

i

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

("Courts wi thin 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

Oct. 2, 2007)

(GEL), 2007 WL 2873929, at *2

(same); Anglada, 2007 WL 15

511, at *7; Hens v.

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

Sept. 26, 2006)
in this case.

(S.D.N.Y.

(W.D.N.Y.

(same). Such a request is likewise approp

ate

Accordingly, Defendants shall produce to

Plaintiff a computer-readable list of the names, addresses,
compensation rates, telephone numbers, and dates of employment
for all tipped non-exempt employees employed by Defendants from
12

June 18, 2010 to present.
with

s information shall

produced

from the entry of this Order.

15

Posting of Notice and Consent Forms is Proper under

§

216(b)

Finally, Plaintiff seeks Court-ordered access to
Defendants'

restaurant to post the notice and consent forms.

Defendants do not oppose this request. "Such posting at the
place of employment of potential optapproved by Courts." Khamsi

plaintiffs is regularly

, 2012 WL 1981507, at *1

ting

Ack v. Manhattan Beer Distributors, Inc., No. 11-Cv-5582 (CBA),
2012 WL 1710985, at *6 (E.D.N.Y. May 15, 2012)) i Jacob v. Duane
Reade, Inc., No. 11 cv-6160, 2012 WL 260230, at *10 (S.D.N.Y.
Jan. 27, 2012)
there

(c

lect

cases)). Plaintiff's request is,

, granted.

13

Conclusion

For the foregoing reasons, Plaintiff's motion is
granted.

It is so ordered.

New York, NY
September

Jg;

2013

U.S.D.J.

14