Pal et al v. Sandal Wood Bar N Grill Inc. et al

Filing 38

OPINION re: 14 MOTION to Certify Class Pursuant to 29 U.S.C. 216(b).. filed by Kristina Romenskaya, Indra Thapaliya, Samsuddin Salmani, Alamgir Chowdhury, Surendra Pathak, Arina Romenskaya, Swiss Shrestha, Rakesh Shrestha, MD Ob oidur Rahman, Kamal Koirala, Som Narayan Chowdhury, Ratna Regmi, Atvinder Pal, Jaya Sharma. For the reasons given, plaintiffs' motion for conditional collective action certification is granted. Plaintiffs' proposed notice to potential class members is approved in part, but is modified to limit notice to those employed after January 16, 2011. Defendants are ordered to provide plaintiffs with the employee contact information requested, except that defendants are not required to prov ide social security numbers and dates of birth. Moreover, defendants are not required to post notice of the lawsuit in their restaurant. Finally, defendants' request to modify the notice to include a provision informing potential plaintiffs of the burdens of litigation is denied. This opinion resolves the item listed as document number 14 in this case. SO ORDERED. (See Opinion.) (Signed by Judge Thomas P. Griesa on 1/15/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------ --------- ---------------------- ----X

PAL, et al.,
Plaintiffs,
-against-

14-cv-00301 (TPG)

SANDAL WOOD BARN GRILL INC., et

OPINION

al.,
Defendants.

------ ------------------- - ---------------X
This is a wage-and-hour action brought by busboys, food runners,
and "captains" at Mint Restaurant & Lounge. Plaintiffs allege that, inter

alia, defendants misappropriated tips from the restaurant's tip pool in
violation of the Fair Labor Standards Act and New York Labor Law.
Plaintiffs request that the court: (1) conditionally certify this action as a
collective action pursuant to 29 U.S.C. § 216{b) of the FLSA, {2) authorize
the issuance of their proposed notice to potential class members; and (3)
order defendants to provide contact information for all persons employed
since January 13, 2008 and post notice of this action in defendants'
restaurant.
The court grants plaintiffs' motion, but will require changes to the
proposed notice and decline to order disclosure of certain types of
employee contact information.

A. Whether to Approve Plaintiffs' Motion for Conditional Collective
Action Certification.
The FLSA allows employees to proceed collectively against an
employer alleged to have violated its provisions. See 29 U.S.C. § 216(b).
Courts in this circuit use a two-step approach in deciding a motion to
certify collective action. Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir.
2010). First, the court must make "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." Id. at
554-55. The plaintiffs burden at this preliminary stage is low, requiring
only a "modest factual showing'' that they were victims of a common policy
violating the law. Id. at 555. The court need not evaluate the underlying
merits of the plaintiffs' claims. Indergit v. Rite Aid Corp., No. 08-CV-9361
(PGG), 201 WL 2465488, at *4 (S.D.N.Y. June 16, 2010). Once potential
plaintiffs have opted in to the action, the court will then move to the second
stage and, upon reviewing the fuller record, determine whether it is
appropriate to proceed collectively. Myers, 624 F.3d at 555.
Plaintiffs have satisfied their modest burden in showing that they
and other potential claimants were victims of a common illegal policy.
Through their pleadings and sworn declarations, they have shown that
service employees at defendants' restaurant were victims of a common
policy denying them certain wages and withholding a portion of their tips
in violation of state and federal law. See, e.g., Regmi Decl. at 15 ("I know

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that the other tipped employees . . . . were also paid less than the full
minimum wage, were also consistently not paid for all hours they worked,
and were also consistently not paid any overtime wages when they worked
more than 40 hours in a week.").
Defendants argue that they did not violate any federal or state labor
laws, but did in fact pay full wages and never misappropriated plaintiffs'
tips. This argument is inapposite to the instant motion because it goes to
the underlying merit of plaintiffs' claims. It does nothing to challenge the
suitability of this action for collective treatment. Moreover, while
defendants do make arguments against allowing plaintiffs to proceed
collectively, these arguments are wholly unpersuasive. For example,
defendants argue that "many of the named Plaintiffs had different job
duties and responsibilities, including managerial responsibilities, making
them entirely inappropriate representatives of the collective." Def. Mem. L.
Opp. at 11. They suggest that plaintiffs have ignored the fact that food
servers are different from food runners, and that bussers are different from
bartenders. Id. This argument misconstrues the plaintiffs' burden.
Plaintiffs are not required to show that they held identical or even closely
similar duties to other potential class members. Rather, plaintiffs need
only make a modest showing that they and other employees were subject
to a common illegal policy. Myers, 624 F.3d at 555. They have made that
showing here.

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Plaintiffs' motion for conditional collective action certification is
granted. They have made a sufficient showing at this stage that they and
putative class members were victims of the same illegal employment
policies.

B. The Proposed Notice to Potential Class Members.
After conditionally certifying a group of FLSA plaintiffs, the court has
discretion to implement§ 216(b) by facilitating notice to potential plaintiffs
of the pendency of the action and their opportunity to join the litigation as
represented class members. Id. at 554. Plaintiffs have submitted a
proposed notice with provisions that: (1) direct questions concerning the
lawsuit to plaintiffs' counsel; (2) provide that plaintiffs' counsel will
manage the notice process; and (3) apply to all tipped employees at Mint
Restaurant & Lounge employed after January 13, 2008. See Dkt. 16-1.
Plaintiffs also request the court: (4) order defendants to produce collective
members' dates of birth, telephone numbers, email addresses and social
security numbers. Defendants oppose each of these proposals, and
suggest adding a provision to the notice informing putative collective
members that they may be required to participate in pre-trial discovery.
Defs.' Mem. Opp. at 14.
The court approves the portion of plaintiffs' proposed notice
directing questions to plaintiffs' counsel and allowing plaintiffs' counsel to
manage the notice process. Defendants argue that this would discourage
putative class members from seeking outside counsel. However, the

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proposed notice contains a paragraph labeled "Should I get my own
lawyer?" that clearly indicates to potential plaintiffs that they may hire
outside counsel. See Dkt. 16-1

~

14. Thus, allowing plaintiffs' counsel to

manage the notice process creates little risk that opt-in plaintiffs will be
discouraged from seeking outside counsel. See, e.g., Delaney v. Geisha
NYC, LLC, 261 F.R.D. 55, 60 (S.D.N.Y. 2009).
The court limits notice to persons employed at Mint after January
16, 2011. Plaintiffs have proposed sending notice to employees as far back
as 2008. However, the statute of limitations for willful violations of the
FLSA is three years. 29 U.S.C. § 255(a). While the statutes of limitations
on plaintiffs' state law claims are longer, see, e.g., N.Y. Lab. Law§ 198(3),
the court will lack supplemental jurisdiction over those older claims given
the absence of federal claims. LeGrand v. Educ. Mgmt. Corp., No. 03-CV9798(HB)(HBP), 2004 WL 1962076, at *3 n.2 (S.D.N.Y. Sept. 2, 2004). The
only basis for jurisdiction over those older claims would be diversity of
citizenship. See id. However, plaintiffs have not alleged that there is
diversity of the parties. See Compl.

~~

4-20. Thus, the court limits notice

to persons employed at Mint after January 16, 2011.
Plaintiffs go too far in asking the court to order defendants to provide
employee social security numbers and dates of birth. In managing the
notice process, courts routinely order employers to provide contact
information

for

potential

plaintiffs.

See,

e.g.,

Chhab

v.

Darden

Restaurants, Inc., No. 11-CV-8345(NRB), 2013 WL 5308004, at *17

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(S.D.N.Y. Sept. 20, 2013). However, this court has been reluctant to order
disclosure of social security numbers where other means of identification
are available, given the sensitivity of such information. See Weng Long Liu
v. Rong Shing, Inc., No. 12-CV-7136 (TPG), 2014 WL 1244676, at *3
(S.D.N.Y. Mar. 26, 2014) (Griesa, J.). Disclosure of potential plaintiffs'
social security numbers and dates of birth raises privacy concerns, and is
unnecessary absent a showing that other forms of identification will be
insufficient. See Li v. Qiu Jian Lin, No. 10-CV-8454{RLE), 2011 WL
2848417, at *2 {S.D.N.Y. July 18, 2011). Thus, plaintiffs' request for an
order directing defendants to disclose employee contact information is
granted only in part. Defendants will only be required to disclose
addresses, phone numbers, email addresses, dates and locations of
employment, positions held, and rates of pay.
Plaintiffs' request that notice of the action be posted in defendants'
restaurant is denied. This court has occasionally approved such requests,
Cheng Chung Liang v. J.C. Broadway Rest., Inc., No. 12 CIV. 1054, 2013
WL 2284882, at *2 (S.D.N.Y. May 23, 2013) (Griesa, J.), but has denied
them where defendants show that other means will be sufficient to notify
potential plaintiffs of the lawsuit. Chhab, 2013 WL 5308004, at *17
(Griesa, J.). Since defendants will be required to provide plaintiffs with
contact information for past and current employees, posting of notice at
the restaurant is unnecessary at this stage. Plaintiffs' request is denied

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without prejudice to renewal should other forms of notification prove
ineffective.
Finally, defendants request that the proposed notice be modified to
inform potential plaintiffs of the burdens involved in litigation. Courts
often reject such provisions because they create a risk, however slight, of
discouraging potential class members from participating in the litigation.
Schwerdtfeger v. Demarchelier Mgmt., Inc., No. 10-CIV-7557(JGK), 2011
WL 2207517, at *6 (S.D.N.Y. June 6, 2011). This court sees no need to
modify the proposed notice as defendants suggest. Defendants' proposal
to include a provision in the notice warning plaintiffs of the burdens
involved in litigating the case is denied.
Conclusion
For the reasons gtven, plaintiffs' motion for conditional collective
action certification is granted. Plaintiffs' proposed notice to potential class
members is approved in part, but is modified to limit notice to those
employed after January 16, 2011. Defendants are ordered to provide
plaintiffs with the employee contact information requested, except that
defendants are not required to provide social security numbers and dates
of birth. Moreover, defendants are not required to post notice of the lawsuit
in their restaurant. Finally, defendants' request to modify the notice to
include a provision informing potential plaintiffs of the burdens of
litigation is denied.

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This opinion resolves the item listed as document number 14 in this
case.

SO ORDERED
Dated: New York, New York
January 15, 2015

~~
Thomas P. Gries a
U.S. District Judge

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