Guevara v. Goodnight Group LLC et al

Filing 84

MEMORANDUM AND ORDER granting in part and denying in part 60 Motion to Certify Class. For the foregoing reasons, plaintiffs' motion for conditional collective certification (Dkt.No. 60) is GRANTED as to all former and current non-exempt tipped employees who worked at Fine & Rare restaurant on or after July 11, 2017, and otherwise DENIED. No later than two weeks from the date of this Memorandum and Order: (As further set forth herein.) SO ORDERED. (Signed by Magistrate Judge Barbara C. Moses on 1/10/2022) (va)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEPHANIE RUIZ GUEVARA and
SANDRA HERAS, on behalf of themselves,
FLSA Collective Plaintiffs and the Class,
Plaintiffs,

1/10/2022
20-CV-5330 (BCM)
MEMORANDUM AND ORDER

-againstFINE & RARE OPERATIONS LLC d/b/a
FINE & RARE, FLATIRON ROOM
OPERATIONS LLC d/b/a THE FLATIRON
ROOM, GOODNIGHT GROUP LLC, and
THOMAS TARDIE,
Defendants.
BARBARA MOSES, United States Magistrate Judge.
Plaintiffs Stephanie Ruiz Guevara and Sandra Heras were employed by Fine & Rare
Operations LLC (F&R LLC) and worked at Fine & Rare restaurant (Fine & Rare), located at 9
East 37th Street in Manhattan. Guevara was a busser for approximately three months, from
November 2019 to February 2020. See First Amended Complaint (FAC) (Dkt. No. 42) ¶ 30(a).
Heras alleges that she was a server and food runner from June 2017 to August 2019. FAC ¶ 31(a).
Fine & Rare is promoted as part of the Goodnight Group "family of venues," which also includes
a second restaurant, The Flatiron Room (Flatiron Room), located at 37 West 26th Street in
Manhattan. 1 Alleging that both restaurants are owned and controlled by Thomas Tardie and are
operated as a "single integrated enterprise," FAC ¶¶ 10, 13, plaintiffs brought this action on behalf
of themselves and others similarly situated against F&R LLC, Flatiron Room Operations LLC
d/b/a The Flatiron Room (FIR LLC), Goodnight Group LLC (collectively the Corporate

1

See Goodnight Group, https://goodnightgroup.nyc/ (last visited Jan. 10, 2022); Fine & Rare,
https://fineandrare.nyc/
(last
visited
Jan.
10,
2022);
The
Flatiron
Room,
https://www.theflatironroom.com/ (last visited Jan. 10, 2022).

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Defendants), and Tardie, alleging that defendants violated the minimum wage, overtime, tippooling, meal credit, spread-of-hours, wage notice, and wage statements provisions of the Fair
Labor Standards Act (FLSA), the New York Labor Law (NYLL), and their implementing
regulations. See FAC ¶¶ 43-63.
Now before the Court is plaintiffs' motion (Mot.) (Dkt. No. 60) for an order: (1) granting
conditional certification of plaintiffs' FLSA claim as a collective action, pursuant to 29 U.S.C.
§ 216(b), on behalf of "themselves and all current and former non-exempt employees (including
but not limited to delivery persons, waiters, bartenders, barbacks, runners, bussers, cooks, food
preparers, dishwashers, porters or hosts), employed by Defendants for the six (6) year period prior
to the filing of the Complaint"; (2) directing defendants to provide the names and contact
information of all potential collective members to plaintiffs' counsel; (3) approving plaintiffs'
proposed Notice of Pendency of Lawsuit Regarding Wages (Notice) (Dkt. No. 61-1), authorizing
plaintiffs to mail it to potential collective members (in English and Spanish), and directing
defendants to post it in both restaurants; and (4) tolling the statute of limitations "until such time
that Plaintiff is able to send notice to protentional opt-in plaintiffs." Mot. Ex. 1 (Dkt. No. 60-1), at
1-2; see also Pl. Mem. (Dkt. No. 61) at 1, 14-23.
For the reasons set forth below, plaintiffs' motion will be granted in part.
I.

BACKGROUND
A.

Plaintiffs' Claims

Except where otherwise indicated, the facts set forth herein are taken from the declarations
submitted by each plaintiff, and by their counsel, in support of the collective certification motion.
Plaintiff Guevara was employed by F&R LLC as a busser at Fine & Rare from November 2019
through February 2020. Guevara Decl. (Dkt. No. 63) ¶¶ 1, 4. Plaintiff Heras attests that she was

2

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employed by F&R LLC as a server and food runner at Fine & Rare from June 2017 through August
2019. Heras Decl. (Dkt. No. 64) ¶¶ 1, 4. 2 Neither plaintiff ever worked at Flatiron Room.
Both plaintiffs complain that their employer improperly deducted an hourly tip credit and
a per-shift meal credit from their wages in violation of relevant provisions of the FLSA and related
regulations. Specifically, both attest that they were paid the "tip credit minimum wage," Guevara
Decl. ¶ 6; Heras Decl. ¶ 6, but were required to engage in non-tipped "side-work," such as
preparing food, making coffee, polishing silverware, restocking the bathrooms, and taking out the
garbage, for twenty percent or more of their workday. Guevara Decl. ¶ 8; Heras Decl. ¶ 9. The
FLSA, 29 U.S.C. § 203(m)(2)(A), "permit[s] an employer to pay a tipped worker a cash wage that
is lower than the statutory minimum wage, provided that the cash wage and the employee's tips,
taken together, are at least equivalent to the minimum wage." Inclan v. N.Y. Hosp. Grp., Inc., 95
F. Supp. 3d 490, 497 (S.D.N.Y. 2015). "[W]hen 'an employee performs both tipped and untipped
work, the question of whether an employer is entitled to apply a tip credit for minimum wage
purposes turns on whether the employee spends more than twenty percent of his or her work week
performing non-tipped work. If so, the employer is not entitled to apply a tip credit, and must pay
that employee the full minimum wage.'" Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481, 500
(S.D.N.Y. 2017) (quoting Islam v. BYO Co. (USA), 2017 WL 2693717, at *4 (S.D.N.Y. June 20,
2017)), aff'd, 752 F. App'x 33 (2d Cir. 2018).
Both plaintiffs further attest that they were subjected to an "illegal tip pooling system" in
which the managers, who were paid on a salary basis, also participated. Guevara Decl. ¶ 10; Heras

2

This appears to be inaccurate. Plaintiff Heras's pay records, as well as an email she wrote to Fine
& Rare General Manager Dasha Naymon on August 24, 2018, reflect that she voluntarily left her
employment in August 2018. (Dkt. Nos. 82-1, 82-2.) Nonetheless, because the motion before me
seeks only conditional certification of an FLSA collective, I accept, for present purposes, that
Heras worked at Fine & Rare through August 2019. See Part II(A), infra.
3

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Decl. ¶ 11. In addition, plaintiff Heras asserts that she was never given "proper written or oral
notice that a tip credit was being taken from my wages." Heras Decl. ¶ 8. 3 Guevara makes no
comparable claim regarding lack of notice of the tip credit. 4 Under the FLSA, the tip credit "shall
not apply with respect to any tipped employee unless "all tips received by such employee have
been retained by the employee," and the employee "has been informed by the employer of the
provisions of this subsection." 29 U.S.C. § 203(m)(2)(A). While tip pooling among tipped
employees is permissible, the employer may not "allow[ ] managers or supervisors to keep any
portion of employees' tips, regardless of whether or not the employer takes a tip credit." Id.; see
also 29 C.F.R. § 531.54 (tip pool must be "limited to employees who customarily and regularly
receive tips" and may not include "managers and supervisors"). The FLSA's tip credit notice
provision "does not require that the notice be given in writing," Hernandez v. Jrpac Inc., 2016 WL
3248493, at *23 (S.D.N.Y. June 9, 2016), but does require the employer to "show that it has
informed employees that tips are being credited against their wages." Inclan, 95 F. Supp. 3d at
497 (quoting Reich v. Chez Robert, Inc., 28 F.3d 401, 403 (3d Cir. 1994)).
Plaintiffs Guevara and Hera also attest that they had a meal credit automatically deducted
from their wages each shift, without regard to whether the deduction exceeded the meal's
"reasonable cost" or whether the meal "satisfied New York State's nutritional requirements
containing all four (4) food groups." Guevara Decl. ¶ 11; Heras Decl. ¶ 12. Plaintiffs do not claim
3

This appears to be inaccurate. Plaintiffs have submitted a written wage notice dated May 5, 2017,
countersigned signed by Heras, informing her that a tip credit of $3.50 per hour and a meal credit
of $2.85 per meal were to be deducted from her cash wages. (Dkt. No. 80-1.) Additionally,
defendants have submitted samples of Heras's paychecks, including one from 2017 and one from
2018. (Dkt. No. 82-1.) Her 2017 paycheck shows that her regular hourly rate was $11, less a $3.50
tip credit, for a cash wage of $7.50 per hour. Her 2018 paycheck shows that her regular hourly rate
was $13, less a $4.35 tip credit, for a cash wage of $8.65 per hour.
4

Plaintiffs have submitted samples of Guevara's paychecks from 2019 and 2020. (Dkt. 61-8.) They
show that that her cash wage was $10 per hour, after a $5 tip credit.
4

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that the meal cost less than the deduction. However, Heras attests that the food was "almost always
unhealthy fried food," served without vegetables or fruits, and that plaintiffs were only given water
to drink. Heras Decl. ¶ 13. Guevara states that the food "would taste terrible, and was usually
unhealthy," Guevara Decl. ¶ 12, but does not elaborate. Under the FLSA, 29 U.S.C. § 203(m)(1),
an employer may deduct the "reasonable cost" of "board" (meals) that it customarily furnishes to
its employees from their cash wages, but the meal credit may only be taken "if it complies with
federal and state law." Luo v. Panarium Kissena Inc., 2020 WL 9456895, at *4 (E.D.N.Y. Sept.
16, 2020) (citing 29 C.F.R. § 531.31), report and recommendation adopted sub nom. Jing Fang
Luo v. Panarium Kissenna, Inc., 2021 WL 1259621 (E.D.N.Y. Apr. 6, 2021). Under federal law,
the deduction may not exceed the meal's "actual cost." 29 C.F.R. § 531.3(a). Under New York law,
the meal must include "adequate portions of a variety of wholesome nutritious foods," including
fruits or vegetables; grains or potatoes; eggs, meat, fish, poultry, dairy or legumes; and tea, coffee,
milk, or juice. 12 N.Y.C.R.R. § 146-3.7.
In addition to the FLSA violations summarized above, plaintiffs claim that their employer
violated various notice requirements imposed by state law. Both attest that they were not given
any written wage notice at the beginning of their employment, as required by the Wage Theft
Prevention Act, NYLL § 195(1). Guevara Decl. ¶ 13; Heras Decl. ¶ 16. 5 Further, although both
concede that they received written wage statements with their weekly paychecks, as required by
NYLL § 195(3), Guevara asserts that her wage statements were inaccurate because of the invalid
tip credit and improper meal deduction. Guevara Decl. ¶ 14. Heras asserts that her wage statements

5

As noted above, this appears to be inaccurate, at least as to plaintiff Heras. During a conference
on January 6, 2022, plaintiffs argued that although Heras received a wage notice at the
commencement of her employment, the notice was out of compliance with New York law because
it improperly calculated the then-applicable tip-credited regular and overtime minimum wage.
5

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were inaccurate because they "failed to state the correct number of hours that I worked each week."
Heras Decl. ¶ 17. However, she does not explain how or in what way the hours stated were
incorrect. 6 Heras adds that she "regularly" worked shifts exceeding ten hours but was not provided
with the extra "spread-of-hours" pay (one extra hour, at minimum wage) required by 12
N.Y.C.R.R.§ 146-1.6. Heras Decl. ¶ 15.
B.

Procedural Background

Plaintiff Guevara filed this action on July 10, 2020 (Dkt. No. 1), and amended her pleading,
adding Heras as a second plaintiff, on June 8, 2021. On August 10, 2021, plaintiffs filed their
motion for conditional collective certification, accompanied by their memorandum of law, their
own declarations, and the declaration of their attorney C.K. Lee (Lee Decl.) (Dkt. No. 62),
authenticating various exhibits. On September 14, 2021, defendants filed an opposition
memorandum (Def. Mem.) (Dkt. No. 68) supported by the declaration of Dasha Naymon (Naymon
Decl.) (Dkt. No. 67-1). Naymon is now the Director of Operations at Goodnight Group LLC and
FIR LLC as well as the General Manager of F&R LLC. Naymon Decl. ¶¶ 1, 5. On September 29,
2021, plaintiffs filed a reply memorandum. (Pl. Reply) (Dkt. No. 69.)
On January 5 and 6, 2022, in advance of a status conference scheduled for January 6, 2022,
plaintiffs and defendants submitted letters attaching documents regarding plaintiff Heras's wages
and hours. (Dkt. Nos. 80, 82.) At the January 6 conference, the parties agreed that the Court could
consider those letters, and attached documents, in connection with the pending collective
certification motion.

6

In the FAC, plaintiffs allege that defendants "had a policy and practice of time-shaving," resulting
in a "failure to pay Plaintiffs and FLSA Collective Plaintiffs for all of their hours worked,"
including overtime hours. FAC ¶¶ 47-48. However, there is not a word about time-shaving in either
plaintiff's declaration.
6

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II.

DISCUSSION
A.

Legal Standards

The FLSA provides that "any one or more employees" may bring an action against an
employer "for and on behalf of himself or themselves and other employees similarly situated." 29
U.S.C. § 216(b). To become parties to such an action, employees other than the named plaintiff(s)
must "opt in" by filing written consents in the court in which the action is brought. Id. "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 Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)).
Courts in this Circuit apply a "sensible" two-step method for determining whether to
exercise this discretion. See Myers, 624 F.3d at 554-55. In the first step – commonly if somewhat
imprecisely known as "conditional certification" – the named plaintiffs must 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. at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261
(S.D.N.Y. 1997)), at which point the trial court may send (or direct plaintiffs' counsel to send) a
notice to potential opt-in plaintiffs. Id. At the second stage, which typically occurs after discovery
is completed, the court determines whether the plaintiffs who opted in are in fact "similarly
situated" to the named plaintiffs. Id. If not, the court may "de-certif[y]" the collective and dismiss
the opt-in plaintiffs' claims without prejudice. Id.
During the initial conditional certification stage, the requirement of a "modest factual
showing" cannot be satisfied solely by the "unsupported assertions" in the plaintiffs' pleading.
Myers, 624 F.3d at 555, or by allegations made on "information and belief." McGlone v. Cont.
Callers, Inc., 867 F. Supp. 2d 438, 444 (S.D.N.Y. 2012). Evidence is required. Id.; see also Cuaya
7

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v. VI Dev. Grp., LLC, 2020 WL 5494371, at *3 (S.D.N.Y. Sept. 10, 2020) ("a plaintiff must offer
'actual evidence of a factual nexus' between his situation and those of other allegedly similarly
situated employees" (quoting Qing Gu v. T.C. Chikurin, Inc., 2014 WL 1515877, at *3 (E.D.N.Y.
Apr. 17, 2014)); Brickey v. Dolgencorp., Inc., 272 F.R.D. 344, 348 (W.D.N.Y. 2011) (denying
conditional collective certification where plaintiffs "offered no admissible evidence" to support
contention made in complaint); Prizmic v. Armour, Inc., 2006 WL 1662614, at *2 (E.D.N.Y. June
12, 2006) ("[m]ere allegations in the complaint are not sufficient; some factual showing by
affidavit or otherwise must be made") (quoting Camper v. Home Quality Mgmt. Inc., 200 F.R.D.
516, 519 (D. Md. 2000)).
However, because the purpose of this first stage is "merely to determine whether 'similarly
situated' plaintiffs do in fact exist," plaintiffs have a low burden of proof. Prizmic, 2006 WL
1662614, at *2 (emphasis in the original); accord Damassia v. Duane Reade, Inc., 2006 WL
2853971, at *3 (S.D.N.Y. Oct. 5, 2006) (quoting Wraga v. Marble Lite, Inc., 2006 WL 2443554,
at *1-2 (E.D.N.Y. Aug. 22, 2006)) ("[A] plaintiff’s burden at this preliminary stage is 'minimal.'").
A showing that plaintiffs themselves "were subjected to certain wage and hour practices at the
defendants' workplace and to the best of their knowledge, and on the basis of their observations,
their experience was shared by members of the proposed [collective]" is a sufficient basis from
which to infer the "common policy" required for conditional certification. Cortes, 2015 WL
7076009, at *3 (citing Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y.
2007)). Documents properly considered in this inquiry "include plaintiffs' 'own pleadings,
affidavits, declarations, or the affidavits and declarations of other potential class members.'"
Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545, 557-58 (S.D.N.Y. 2013) (quoting
Hamadou, 915 F. Supp. 2d at 661).

8

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Consistent with the "minimal" burden of proof assigned to plaintiffs at the conditional
certification stage, the court "should not weigh the merits of the underlying claims," Hamadou v.
Hess Corp., 915 F. Supp. 2d 651, 662 (S.D.N.Y. 2013) (citing Lynch v. United Servs. Auto Ass’n,
491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)), and should not "resolve factual disputes, decide
substantial issues going to the ultimate merits, or make credibility determinations." Jackson v.
Bloomberg, L.P., 298 F.R.D. 152, 158 (S.D.N.Y. 2014) (internal quotation marks omitted).
Accordingly, where there is a conflict between the parties as to the facts underlying plaintiffs' wage
and hour claims, the court should treat plaintiffs' attestations as true. See Cortes v. New Creators,
Inc., 2015 WL 7076009, at *1 n.1 (S.D.N.Y. Nov. 12, 2015).
In cases involving employees at multiple business locations, "courts consider whether the
plaintiffs have made an adequate factual showing to support an inference that . . . a uniform policy
or practice exists, and whether the locations share common ownership or management." Trinidad,
962 F. Supp. 2d at 558 (quoting Hamadou, 915 F. Supp. 2d at 662); see also Rosario v. Valentine
Ave. Disc. Store, Co., Inc., 828 F. Supp. 2d 508, 516–17 (E.D.N.Y.2011) (collecting cases). Both
showings are required; that is, even where it is clear that multiple business locations share common
ownership and management, plaintiffs must adduce enough evidence to support an inference of a
common wage policy across all locations before a multi-location collective may be certified. See,
e.g., Trinidad, 962 F. Supp. 2d at 558-60 (declining to authorize notice to all Pret a Manger
restaurant locations in New York City, or even to the full list of locations at which the named
plaintiffs had worked, because "plaintiffs have not demonstrated across all locations a uniform
policy of failure to pay overtime compensation"); Laroque v. Domino’s Pizza, LLC, 557 F. Supp.
2d 346, 356 (E.D.N.Y. 2008) (conditionally certifying a group of employees at one pizza store,
but declining to include employees at five other stores in the same chain where plaintiffs made

9

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only "generalized allegations of wrongdoing" regarding one of the stores, supported by hearsay
statements of questionable reliability); cf. Morris v. Lettire Const., Corp., 896 F. Supp. 2d 265,
270–71 (S.D.N.Y. 2012) (plaintiffs' assertions that they received "purely 'straight time' pay in the
same distinctive manner . . . no matter where they worked or who supervised them" supported "a
reasonable inference that plaintiffs' experiences reflected a company-wide policy").
B.

Plaintiffs' Factual Showing

As noted above, both plaintiffs attest that they worked at Fine & Rare; that they were paid
a tip-credited minimum wage but were required to engage in non-tipped activities for more than
twenty percent of their workday; that they were subject to an illegal tip pool that improperly
included salaried managers; and that they were also subject to a meal credit deduction but were
served meals that did not satisfy the New York state's nutritional requirements. Guevara Decl.
¶¶ 6-14; Heras Decl. ¶¶ 6-7, 9-14, 16-17. Heras also claims that she was not given any notice that
a tip credit would be taken from her wages. Heras Decl. ¶ 8. In addition to recounting their own
experiences, both plaintiffs state in broad terms (and identical language): "Based on my work
experience and personal observations and conversations with co-workers, I know that all
employees of Defendants were subject to the same wage and hour policies." Guevara Decl. ¶ 5;
Heras Decl. ¶ 5. The rather skimpy details that follow, however, do not permit the Court to infer a
"common policy" extending beyond the tipped employees at Fine & Rare.
Guevara states that she has knowledge of policies applicable to other employees based on
her conversations with two co-workers: Eloy Candia, a busser, and "Jesus," a runner. Guevara
Decl. ¶ 5. She reports that Eloy and Jesus worked at Fine & Rare and at Flatiron Room, but she
does not explain how she knows that, when they worked at Flatiron Room, what positions they
held there, or how they were paid at Flatiron Room. She attests that when working at Fine & Rare,
both Eloy and Jesus complained to her, on unspecified dates, that "it was unfair that we were
10

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required to do so much side-work despite only being paid at the tipped credit minimum wage."
Guevara Decl. ¶ 7. Eloy also complained about the food at Fine & Rare, but said "we might as
well" eat it since "Defendants would be deducting it from our wages regardless of whether we ate
it or not." Id. ¶ 12. As to the other unlawful practices she alleges, Guevara speaks entirely in
unsupported generalities. For example, she asserts: "Based on my personal observations and
conversations, no other employee . . . ever received a written wage and hour notice at the time of
hiring." Id. ¶ 12. But she does not name a single employee who did not receive (or who told her
that he or she did not receive) a wage notice when hired. 7
Heras attests that she discussed her employer's wage policies and related issues with seven
co-workers: "Diana," a busser/runner/hostess; "Angel," a bartender; "Masha," a waitress; "Ishan,"
a waiter; "Jose," a bartender; "Chris," a waiter; and "El Colombiano," a dishwasher. Heras Decl.
¶ 5. Diana, Angel, and Jose worked at both restaurants (although Heras does not state how she
knows this, when they worked at Flatiron Room, or in what positions); the others worked only at
Fine & Rare. Id. Heras "discussed Defendants' illegal policy of not paying the proper minimum
wage during our employment with other employees, particularly with Diana [LNU] and Masha
[LNU] while we would be performing non-tipped side work. We would discuss how unfair it was
that we were constantly paid at the tip credit minimum wage and not the regular minimum wage
despite how much side work we were required to perform each shift." Id. ¶ 7. Heras discussed the
meal deduction with El Colombiano, who "would constantly complain to me about the terrible
quality of the family meals that were provided for us." Id. ¶ 14.

7

As noted above, it appears that Guevara's co-plaintiff Heras did receive a written wage notice
when hired. (Dkt. No. 80-1.)
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With respect to the remaining violations described in her declaration, however, Heras
provides no specifics for her repeated claim that other employees were similarly treated. See Heras
Decl. ¶ 8 ("no other tipped employees" received legally required tip-credit notices); id. ¶ 11 ("all
other tipped employees" were subject to an illegal tip pool); id. ¶ 12 ("all other employees" had
meal credits improperly deducted); id. ¶ 15 ("other employees" worked ten-hour shifts with no
spread-of-hours pay); id. ¶ 16 ("no other employee" received a written wage notice when hired);
id. ¶ 17 ("other employees" received inaccurate weekly wage statements). The basis for each and
every one of these statements, according to Heras, is her "personal observations and conversations
with my co-workers," but no pertinent observations, or conversations, are described.
In support of plaintiffs' allegations that defendants operate both restaurants as a single
integrated enterprise under the control of Tardie, plaintiffs submit – through their counsel –
printouts from the Corporate Defendants' websites demonstrating that Fine & Rare and Flatiron
Room are promoted as sister restaurants under the umbrella of the Goodnight Group. See Lee Decl.
¶¶ 4-7 & Exs. B-E. Each restaurant's website links to the other's, and each offers gift cards and
tickets that can be used at the other venue. Additionally, the "team" page of the Goodnight Group
LLC website identifies Tardie as the "owner and operator" of both restaurants. Lee Decl. ¶ 8 &
Ex. F. Naymon is identified, on the same page, as the Director of Operations at the Goodnight
Hospitality Group, with responsibility for both restaurants. Id. Through Goodnight Group LLC,
the restaurants also appear to share an Executive Chef, an Events Director and Events Manager,
and a Beverage Director (responsible for "Spirits Education"). Id.
C.

Defendants' Factual Showing

In her opposition declaration, Naymon describes the tip pool at Fine & Rare, which is
"separate from the tip pool for The Flatiron Room." Naymon Decl. ¶ 7. The employees who
participate in the Fine & Rare tip pool are "servers, bartenders, bussers, food runners and
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barbacks." Id. ¶ 10. Cooks, food preparers, dishwashers, porters, and hosts are not tipped, and
consequently "do not participate in the tip pool." Id. ¶¶ 16-20.
Naymon also describes the "family meal" offered at Fine & Rare. She attests that it is
optional, and that if an employee opts out, the meal deduction is removed from that employee's
paycheck. Naymon Decl. ¶ 23. She further attests that plaintiff Heras did opt out, at which point
"the deduction was removed." Id. ¶ 24. The family meal, according to Naymon, includes all
required food groups. Id. ¶ 25.
D.

Conditional Certification of FLSA Collective

With respect to the non-exempt, tipped employees at Fine & Rare, I conclude that plaintiffs'
declarations satisfy the "modest showing that is required of [plaintiffs] at this preliminary stage";
that is, that "they were subjected to certain wage and hour practices at the defendants' workplace
and to the best of their knowledge, and on the basis of their observations, their experience was
shared by members of the proposed [collective]." Hernandez v. Bare Burger Dio Inc., 2013 WL
3199292, at *3 (S.D.N.Y. June 25, 2013) (quoting Iglesias-Mendoza, 239 F.R.D. at 368).
"There is a 'consensus in this district that where a plaintiff bases an assertion of a common
policy on observations of coworkers or conversations with them, he must provide a minimum level
of detail regarding the contents of those conversations or observations.'" Racey v. Jay-Jay Cabaret,
Inc., 2016 WL 3020933, at *4 (S.D.N.Y. May 23, 2016) (quoting Reyes v. Nidaja, LLC, 2015 WL
4622587, at *3 (S.D.N.Y. Aug. 3, 2015)). However, plaintiffs are not required to provide "the
times and dates" of the conversations, so long as a court "'can fairly infer' that other [employees]
'labored under similar working conditions and thus suffered the same violations of the FLSA.'" Id.
(quoting Guzman v. Three Amigos SJL Inc., 117 F. Supp. 3d 516, 525 (S.D.N.Y. 2015)). In this
case, the Court may fairly so infer. As described above, plaintiffs have submitted sworn
declarations asserting that they – and at least some of their tipped co-workers at Fine & Rare –
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were paid at the tip-credited minimum wage but were required to spend twenty percent or more of
their working time on non-tipped activities; were subjected to an unlawful tip pool arrangement
that improperly included salaried managers; and had a meal credit deducted from their wages,
regardless of whether they ate the meal or not, for a meal that did not meet New York's nutritional
requirements. Guevara Decl. ¶¶ 5-13; Heras Decl. ¶¶ 5-14.
Plaintiffs' declarations include the names (or nicknames) of the coworkers with whom they
spoke, and the circumstances (if not the dates) of at least some of the conversations, during which
the co-workers voiced complaints similar to those of the named plaintiffs. Although the
declarations are vague in many respects, and conclusory in others (as discussed below), they are
adequate to meet plaintiffs' "minimal" burden, Damassia, 2006 WL 2853971, at *3, of showing
that the tipped employees at Fine & Rare were similarly situated with respect to the wage policies
complained of. See, e.g., Mei Rong Du v. Dingxiang Inc., 2020 WL 7404984, at *6 (S.D.N.Y. Dec.
17, 2020) (conditionally certifying collective based on sworn declaration of named plaintiff
reporting information learned from seven other employees, identified by name or nickname, about
the wages they were paid and the hours they worked); Cuaya 2020 WL 5494371, at *5
(conditionally certifying collective based on sworn declaration attesting that named plaintiff spoke
with at least ten other employees about their wages and hours). For example, Guevara attests that
while Eloy and Jesus were doing side-work with her, they "complain[ed] that the owners made
tipped employees at both restaurants to do so much side work" and that the defendants "paid us
terrible wages and were essentially living off of tips." Guevara Decl. ¶ 7. Similarly, Heras attests
that Diana and Masha were assigned substantial side-work and complained about it, particularly
Diana, who was upset because she was required to perform hostess duties but was paid only at the
tip-credited minimum wage rate. Heras Decl. ¶ 7.

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Although defendants take issue with plaintiffs' inability to provide their coworkers' full
names, see Def. Mem. at 10, it is "not necessarily a shortcoming" that plaintiffs only identify these
individuals by first name or by nickname. Mei Rong Du, 2020 WL 7404984, at *6; accord Cuaya,
2020 WL 5494371, at *5; Zamora v. L Plus L Prods. LLC, 2019 WL 5460559, at *5 (S.D.N.Y.
Oct. 15, 2019). Moreover, at this preliminary stage, "courts regularly rely on plaintiffs' affidavits
and hearsay statements in determining the propriety of sending notice." Cuaya, 2020 WL 5494371,
at *6 (quoting Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561, 563 (S.D.N.Y. 2012)). Here,
plaintiffs have adequately described conversations with other employees at Fine & Rare
concerning the tip-credited minimum wage, the amount of side work required, the meal deduction,
and the quality of the meal. Consequently, they have satisfied their minimal burden of showing
that other non-exempt tipped employees at Fine & Rare are "similarly situated" with regard to
these alleged FLSA violations. 8
1. Tipped Employees Only
However, to the extent the proposed collective extends to all non-exempt employees,
plaintiffs have not satisfied their burden. An FLSA collective "may cover individuals with multiple
job functions," but only if the plaintiffs have shown that all such individuals "'are subject to a
common unlawful policy or practice.'" Gomez v. Kitchenette 123 Inc., 2017 WL 4326071, at *5
(S.D.N.Y. Sept. 5, 2017) (quoting Zaldivar v. JMJ Caterers, Inc., 166 F. Supp. 3d 310, 323
(E.D.N.Y. 2016)). In this case, plaintiffs have not made and could not make any such showing as
to non-tipped employees, because the bulk of their federally cognizable complaints – as to the tip-

8

As noted above, Naymon attests that the tipped employees were servers, bartenders, bussers, food
runners, and barbacks. Naymon Decl. ¶¶ 10. At many restaurants, delivery persons are also tipped
employees, but according to Naymon neither Fine & Rare nor Flatiron Room employs any delivery
persons. Id. ¶ 21.
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credited minimum wage they were paid, the amount of side work they were required to do, the
alleged lack of notice concerning the tip credit, and the unlawful tip pooling arrangement – apply,
by definition, only to tipped employees.
Similarly, almost all of the co-workers described in plaintiffs' declarations were in tipped
positions. Plaintiffs do not even mention – much less provide evidence concerning – the wage
policies applicable at Fine & Rare to cooks, food preparers, or porters. 9 The collective must
therefore be limited to non-exempt tipped employees. See Mei Rong Du., 2020 WL 7404984, at
*7 (limiting collective to kitchen and pastry workers where plaintiff failed to provide "specific
conversations, names, or other details" as to compensation policies applicable to other employees);
Cuaya, 2020 WL 5494371, at *6 (S.D.N.Y. Sept. 10, 2020) (limiting collective to kitchen workers
where "the only statements Cuaya makes with respect to non-kitchen staff are conclusory
allegations that 'other employees were also required to work for hours for which they were not
paid' and that 'no employees . . . were ever paid a spread of hours premium"); Kitchenette 123,
2017 WL 4326071, at *5 (limiting collective to delivery persons where eight of the nine coworkers mentioned in plaintiff's affidavit were delivery persons, as was he, and he provided "no
concrete details as to any conversations with or observations of other individuals beyond those
enumerated."). 10

9

The one non-tipped employee identified in plaintiffs' declarations is El Colombiano, a
dishwasher, who – according to Heras – complained about the quality of the family meals. Heras
Decl. ¶ 14. However, El Colombiano did not state that he was subject to an involuntary meal
deduction and did not make any comment regarding the other FLSA issues described by plaintiffs.

10

In Kitchenette 123, as here, the named plaintiff attempted to make up for this deficiency by
attesting in broad terms that he observed "various employees being subject to wage and hour
violations," beyond the individuals actually named in his declaration, and stating "generally that
such observations were informed by 'conversations and experience,'" without specifying any such
conversations or experiences. 2017 WL 4326071, at *5. This was "insufficient to meet his modest
burden of showing that such employees may have been subject to the same wage and hour
violations to which he was purportedly subject." Id.; see also Jin Yun Zheng v. Good Fortune
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2. Fine & Rare Only
Nor can the Court conditionally certify a collective extending beyond Fine & Rare. Where,
as here, plaintiffs invoke the "single integrated enterprise" doctrine to seek conditional certification
of a collective including employees of different corporate entities at different locations, they must
make at least a "modest showing" that the individual restaurants, stores, or other businesses not
only "share common ownership" but "treat employees, equipment, and supplies interchangeably."
Lijun Geng v. Shu Han Ju Restaurant II Corp., 2019 WL 4493429, at *14 (S.D.N.Y. Sept. 9, 2019)
(collecting cases); accord Cuaya, 2020 WL 5494371, at *8. Additionally, plaintiffs must show
that each location "had employees that were 'similarly situated' with regard to the allegedly
unlawful . . . policies." Trinidad, 962 F. Supp. 2d at 557-60 (conditionally certifying a collective
extending to six Pret a Manger stores rather than all 33 stores in New York City or even all ten
stores at which one or more of the named plaintiffs worked); see also Mei Rong Du, 2020 WL
7404984, at *7 (S.D.N.Y. Dec. 17, 2020) (conditionally certifying a collective limited to kitchen
workers at one of three commonly-owned and managed restaurants, because plaintiff's declaration
said "nothing about the hours worked or wages paid at the restaurants other than Birds of a
Feather"); Kitchenette 123, 2017 WL 4326071, at *6-7 (conditionally certifying a collective as to
two Kitchenette locations but not as to a third, because plaintiff provided no evidence "that the
specific policies he identifies . . . existed generally at all of the Kitchenette locations"); Jing Fang
Supermarket Grp. (USA), Inc., 2013 WL 5132023, at *5 (E.D.N.Y. Sept. 12, 2013) (refusing to
certify collective in time-shaving case where, rather than identify specific employees subject to
the same unlawful policies, or otherwise explain how she knew that that her co-workers' time was
shaved, plaintiff "merely restate[d] her conclusory factual allegations in a variety of forms," such
as by attesting vaguely that, "[b]ased on [her] personal observation, other supermarket clerks were
subject to the same time shaving policy"). So too here. Although plaintiffs claim in broad terms
that "all employees" were "subject to the same wage and hour policies" and that defendants'
practices were "common knowledge," Guevara Decl. ¶ 5; Heras Decl. ¶ 5, their failure to put any
flesh on these bare bones is "fatal" to their effort to expand the collective beyond tipped employees.
Good Fortune Supermarket Grp., 2013 WL 5132023, at *5.
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Luo v. Panarium Kissena Inc., 2016 WL 11263668, at *9-10 (E.D.N.Y. Nov. 23, 2016),
(conditionally certifying a collective extending to just three Fay Da Bakery locations, because
plaintiffs "have simply not provided the Court with enough specifics to meet even the modest
burden that they face at this juncture" as to other locations, and collecting cases), report and
recommendation adopted, 2017 WL 1216571 (E.D.N.Y. Mar. 30, 2017).
Here, plaintiffs allege in conclusory (and identical) terms that that defendants "share and
exchange non-exempt employees, who are shifted among the Restaurants when one is shortstaffed" or to meet "other needs of Defendants," and that "[e]mployees were regularly required to
transport items from and to the Restaurants, in accordance with the directives of central
management," Guevara Decl. ¶ 3; Heras Decl. ¶ 3, but provide no actual evidence (direct or
hearsay) as to any of these claims. Neither Guevara nor Heras was ever "shifted among the
Restaurants" or "required to transport items from and to the Restaurants," and neither of them
identifies any coworker to whom that happened. Moreover, although plaintiffs state that Eloy,
Jesus, Diana, Angel and Jose worked at both Fine & Rare and Flatiron Room, they do not describe
any conversations with these employees about their wages while working at Flatiron Room. Nor
do they offer any other evidence about how the tipped staff was paid there, what side work they
did, whether a meal deduction was taken, or how good the family meal was.
The mere fact that some individuals working at Fine & Rare were previously employed at
a sister restaurant does not, standing alone, allow this Court to infer either that that those employees
were "shifted among the restaurants" at management's whim or that employees at both locations
were subject to the same allegedly unlawful wage and hour policies. See Mei Rong Du, 2020 WL
7404984 at *7 (plaintiff's claim that that three commonly-owned restaurants "share staff," backed
only by her attestation that two employees of Birds of a Feather previously worked at one of the

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other restaurants, was insufficient to extend collective beyond Birds of a Feather). Thus, although
plaintiffs have shown that Fine & Rare and Flatiron Room are jointly owned, jointly promoted,
and at least to some degree jointly managed, they "have simply not provided the Court with enough
specifics to meet even the modest burden that they face at this juncture" to show that the specific
wage and hour policies of which they complain were "uniform" across both restaurants. Jing Fang
Luo, 2016 WL 11263668, at *9-10. Consequently, the collective will be limited to non-exempt
tipped employees who worked at Fine & Rare.
E.

Production of Potential Opt-In Plaintiff Information

Plaintiffs request that the Court direct defendants to produce contact information (including
"names, titles, compensation rates, date of employment, last known mailing addresses, email
addresses, and all known telephone numbers") for the employees within the conditionally certified
collective. Pl. Mem. at 20. Plaintiffs seek this information in the form of an Excel spreadsheet, and
request information concerning qualifying individuals who were "employed by Defendant at any
point in the six (6) years prior to entry of" the Court's order. Id. Defendants resist furnishing email
addresses, telephone numbers, or compensation rates, arguing that this would be an "unjustified
intrusion into the privacy of non-parties," Def. Mem. at 16, and further contend that the contact
list should extend no further than the maximum FLSA statute of limitations, which is three years.
Id. at 13.
Courts in this Circuit "routinely grant . . . motions to compel production of the names and
addresses of potentially similarly situated employees who may wish to 'opt-in' to a collective
action" following conditional certification. Anglada v. Linens ’N Things, Inc., 2007 WL 1552511,
at *7 (S.D.N.Y. Apr. 26, 2007) (collecting cases), report and recommendation adopted (May 22,
2007); accord Cortes, 2015 WL 7076009, at *4. Moreover, it is by now fairly clear that telephone

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numbers and email addresses permit a more efficient means of providing notice than mailing
addresses alone, while minimally intruding on the employees' privacy. See, e.g., Diatta v. Iguana
New York Ltd., 2016 WL 2865132, at *6 (S.D.N.Y. May 10, 2016) ("Courts routinely order
discovery of names, addresses, and telephone numbers in FLSA actions."); Racey, 2016 WL
3020933, at *10 (ordering defendants to provide "a list of the names, addresses, telephone
numbers, email addresses, and dates of employment for potential class members"). Additionally,
courts commonly require the employer to disclose the potential collective members' hourly rates
(which, in any event, are likely identical, at any one time, across all non-exempt tipped employees).
E.g., Hernandez v. NGM Mgmt. Grp. LLC, 2013 WL 5303766, at *5 (S.D.N.Y. Sept. 20, 2013)
(ordering defendants to produce "a computer-readable list of the names, addresses, compensation
rates, telephone numbers, and dates of employment" for all potential opt-in plaintiffs).
Defendants are correct, however, as to the FLSA statute of limitations, which is three years
in cases of willful violations. 29 U.S.C. § 255(a); see also Notice at 2 (informing recipients that
the FLSA statute of limitations is "two or three years"). The statute of limitations under the NYLL
is six years, see NYLL § 198(3), but that does not affect plaintiffs' FLSA claims, and no NYLL
class has been certified in this case. Thus, "the three-year period more effectively serves the goal
of efficiency . . . and will avoid confusing individuals whose claims arise only under the NYLL."
Contrera v. Langer, 278 F. Supp. 3d 702, 722 (S.D.N.Y. 2017) (quoting Rojas v. Kalesmeno Corp.,
2017 WL 3085340, at *6 (S.D.N.Y. July 19, 2017). Consequently, defendants will be required to
provide a list (in Excel format if possible) limited to the names, addresses, telephone numbers,
dates of employment, and current (or most recent) job titles and compensation rates for all nonexempt tipped employees who worked at Fine & Rare on or after July 11, 2017 – three years prior
to the date on which this action was filed.

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F.

Content and Distribution of the Notice

"At the conditional certification stage, the district court monitors both the drafting and the
distribution of the Notice of Pendency to ensure timeliness and correctness, and courts have 'broad
discretion' over the details of the Notice." Garcia Ramos v. DNC Food Serv. Corp., 2020 WL
2832776, at *8 (S.D.N.Y. June 1, 2020) (quoting Gjurovich v. Emmanuel's Marketplace, Inc., 282
F. Supp. 2d 101, 106 (S.D.N.Y. 2003)). In this case, the proposed Notice will of course require
revision to conform to the scope of the collective certified by the Court. Beyond that, defendants
articulate a variety of objections to the content of the Notice and to plaintiffs' distribution plans for
the Notice. See Def. Mem. at 14-17.
In evaluating the content of an FLSA notice, a court should strive to ensure that potential
opt-in plaintiffs receive "accurate and timely notice concerning the pendency of the collective
action, so that [they] can make informed decisions about whether to participate." Whitehorn v.
Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445, 450 (S.D.N.Y. 2011) (quoting Fasanelli v.
Heartland Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007)). To that end, an FLSA
collective notice generally should contain:
a description of some or all of the following: (1) the purpose of the notice; (2) the
nature of the lawsuit filed and the relief being sought; (3) the proposed class
composition; (4) the legal effect of joining the lawsuit; (5) the fact that the court
has not taken any position regarding the merits of the lawsuit; (6) how to join the
lawsuit; (7) the purely voluntary nature of the decision and the legal effect of not
joining the lawsuit; (8) the prohibition against retaliation; and (9) the relevant
contact information for any inquiries.
Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561, 566 (S.D.N.Y. 2012). Courts in this District
have also held that the notice should include a warning that opt-in plaintiffs may be required to
provide information, appear for deposition, or testify in court. See id. at 567 (modifying proposed
notice to explain such a possibility).

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Here, the proposed Notice contains most of the required content, including a warning about
the litigation responsibilities that may come with opting in to the collective. See Notice at 2. It also
states in general terms that plaintiffs' counsel, Lee Litigation Group, PLLC (LLG), is handling the
lawsuit on a "contingency fee" basis, meaning that opt-in plaintiffs who agree to be represented by
LLG will not have to pay any attorneys' fee or expenses as the lawsuit proceeds. Id. The Notice
also states that LLG "may ask the Court to award its reasonable lodestar or up to one-third of the
monetary recovery, whichever is greater." While not inaccurate, this language fails adequately to
convey that, upon settlement (or after a judgment in favor of plaintiffs), the Court will evaluate
any request for attorneys' fees and costs and will approve such an award only after determining
that it is fair and reasonable. Plaintiffs are directed to add language to the Notice making this point
clear. Likewise, although plaintiffs need not detail the specific costs and expenses that may be
incurred in this litigation, the Notice should at least mention how costs will be handled in the event
of a judgment in favor of defendants.
The Notice appropriately directs opt-in plaintiffs to send their consent-to-join forms to
LLG rather than to the Clerk of Court, as defendants urge. See Def. Mem. at 14. Although some
courts "have found that sending consent forms to plaintiff's counsel implicitly discourages opt-in
plaintiffs from retaining their own counsel," Mariani v. OTG Mgmt., Inc., 2016 WL 11670735, at
*6 (E.D.N.Y. Nov. 21, 2016) (collecting cases), in this case, the potential for discouragement is
"de minimis," id. at *7, because the Notice clearly advises opt-in plaintiffs that they may retain
their own counsel. See Notice at 2 ("You are not required to have Lee Litigation Group, PLLC
represent you.").
Defendants request that the Notice include contact information for defense counsel, as well
as plaintiffs' counsel, which – they say – would provide "another source of information for notice

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recipients." Def. Mem. at 15. Plaintiffs object, arguing that adding contact information for
defendants' counsel "is likely to create confusion." Pl. Reply at 9-10. Courts in this District,
although not wholly unanimous on the point, "'have generally concluded' that the contact
information of defendants' counsel 'is appropriate for inclusion in a notice of collective action.'"
Benavides v. Serenity Spa NY Inc., 166 F. Supp. 3d 474, 486–87 (S.D.N.Y. 2016) (quoting
Bittencourt v. Ferrara Bakery & Cafe Inc., 310 F.R.D. 106, 118 (S.D.N.Y. 2015)); see also She
Jian Guo v. Tommy's Sushi Inc., 2014 WL 5314822, at *4 (S.D.N.Y. 2014) ("Inclusion of such
information is routine."). Plaintiffs shall therefore add the names and contact information of
defendants' attorneys to the Notice. The Notice should also advise opt-in plaintiffs that once they
are represented by counsel (whether LLG or other attorneys), they should not contact defendants'
lawyers personally, but should instead rely on their own counsel to do so. See Benavides, 166 F.
Supp. 3d at 487; Cohan v. Columbia Sussex Mgmt., 2013 WL 8367807, at *13 (E.D.N.Y. Sept.
19, 2013), aff'd, 2016 WL 1045532 (E.D.N.Y. Mar. 15, 2016).
Plaintiffs propose sending the Notice to members of the collective in Spanish as well as
English. Pl. Mem. at 1, 20-21. "Generally, courts permit notice to be 'translated into the mother
tongue of non-English speaking groups of potential plaintiffs.'" Valerio v. RNC Indus., LLC, 314
F.R.D. 61, 76 (E.D.N.Y. 2016) (quoting Colon v. Major Perry Street Corp., 2013 WL 3328223,
at *8 (S.D.N.Y. July 2, 2013)); accord Sanchez v. El Rancho Sports Bar Corp., 2014 WL 1998236,
at *5 (S.D.N.Y. May 13, 2014) (Spanish-language notice forms permitted). Here, plaintiffs
contend in their brief that many of their coworkers are Spanish speakers. Pl. Mem. at 21. Although
there is no evidentiary support for this proposition in plaintiffs' declarations, defendants have not
objected to the translation plan. Consequently, the Court adopts plaintiffs' proposal and will direct
their counsel to have the Notice translated into Spanish for dissemination.

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Plaintiffs request that the Court approve the "distribution" of the Notice, see Mot. Ex. 1,
¶ 2, but do not specify the means of distribution. "Courts in the Second Circuit have permitted
dissemination of notice by mail, email, and text message 'where, as here, the nature of the
employer's business facilitated high turnover rate among employees.'" Chui v. Am. Yuexianggui of
LI LLC, 2020 WL 3618892, at *10 (E.D.N.Y. July 2, 2020) (quoting Vasto v. Credico (USA) LLC,
2016 WL 2658172, at *16 (S.D.N.Y. May 5, 2016)); see also Qiang Lu v. Purple Sushi Inc., 447
F. Supp. 3d 89, 97 (S.D.N.Y. 2020). For avoidance of doubt, this Court will authorize plaintiffs'
counsel to disseminate the Notice by mail, email, and/or text message. However, to protect
potential collective members from undue annoyance, counsel shall not contact any individual more
than twice during the 60-day opt-in period via any one channel of communication.
Defendants will also be required to post the Notice, in English and Spanish, at Fine & Rare,
in a location easily accessible to tipped employees. Defendants resist doing so, arguing that posting
the Notice on premises will be "disruptive" to their operations and unnecessary, as they
"necessarily maintain accurate address information" for current employees. Def. Mem. at 16.
Many employers raise such objections in FLSA cases. Most courts, however, reject them, as I do
here, concluding that any "disruption" would be minimal, and outweighed by the advantages of
making the Notice easily available to all current employees. See, e.g., Chui, 2020 WL 3618892, at
*11 (collecting cases); Qiang Lu, 447 F. Supp. 3d at 97; Whitehorn, 767 F. Supp. 2d at 449;
Trinidad, 962 F. Supp. 2d at 564.
G.

Equitable Tolling

Ordinarily, the statute of limitations on an FLSA claim "continues to run with respect to
each potential plaintiff's collective action claim until that plaintiff files the written consent form
opting into the suit." Whitehorn, 767 F. Supp. 2d at 449; see also 29 U.S.C. § 256. In a collective
action, equitable tolling of the statute of limitations may be warranted to avoid "inequitable
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circumstances" where individual plaintiffs have acted with "reasonable diligence in pursuing their
claims," but where, due to the passage of time between the filing of the action and the
dissemination of a notice of pendency, "a substantial number of class members may now be timebarred" through no fault of counsel or the class representative. Jackson, 298 F.R.D. at 170.
Here, plaintiffs proactively request that the FLSA statute of limitations be continuously
tolled, for all collective members, "until such time that Plaintiffs are able to send notice to potential
opt-in plaintiffs." Pl. Mem. at 21. However, plaintiffs first filed their collective certification motion
more than one year after they initiated this action, and it has now been pending and fully briefed
for only three and a half months. Cf. Jackson, 298 F.R.D. at 170-71 (where plaintiffs filed their
certification motion "shortly after the filing of the complaint," but it was not decided for "more
than seven months" after briefing was completed, court tolled statute of limitations for a limited
period of time, "as of the date of filing" of the motion).
Because "the application of the equitable tolling standard is 'highly case-specific,'" the
"burden of demonstrating the appropriateness of equitable tolling . . . lies with the plaintiff."
Contrera v. Langer, 278 F. Supp. 3d 702, 726 (S.D.N.Y. 2017) (quoting Wilder v. U.S. Dep't of
Veterans Decairs, 175 F. Supp. 3d 82, 90 (S.D.N.Y. 2016)). At present, nothing about this case
presents the kind of "rare and exceptional circumstances" that would merit equitable tolling. See
Andon v. SDG Props., Inc., 2018 WL 3970910, at *3 (S.D.N.Y. Aug. 20, 2018) ("Equitable tolling
is appropriate only in rare and exceptional circumstances . . . where a plaintiff has been prevented
in some extraordinary way from exercising his rights.") (internal quotations omitted).
Consequently, the Court agrees with defendants, see Def. Mem. at 13-14, that plaintiffs have not
demonstrated any entitlement to a blanket tolling rule. The Court's decision on this point is without
prejudice to a later application for equitable tolling by one or more individual plaintiffs, should

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their own cases so warrant. See, e.g., Cuaya, 2020 WL 5494371, at *13-14 (denying equitable
tolling without prejudice because plaintiff "failed to allege that any potential opt-in plaintiff exists
'who intends to join the collective but who risks becoming time-barred or has been prevented in
some extraordinary way from exercising his rights'").
III.

CONCLUSION
For the foregoing reasons, plaintiffs' motion for conditional collective certification (Dkt.

No. 60) is GRANTED as to all former and current non-exempt tipped employees who worked at
Fine & Rare restaurant on or after July 11, 2017, and otherwise DENIED.
No later than two weeks from the date of this Memorandum and Order:
1.

Defendants shall produce a spreadsheet, in Excel format if possible, containing the
names, last known mailing addresses, email addresses, and telephone numbers,
dates of employment, current or most recent job title, and current or most recent
compensation rate, for all current and former non-exempt, tipped employees who
worked at Fine & Rare restaurant on or after July 11, 2017; and

2.

The parties shall, after meeting and conferring, prepare and submit to the Court, for
its approval, a revised form of Notice (including the related opt-in form), and a
proposed distribution order, incorporating the Court's rulings.

Dated: New York, New York
January 10, 2022

SO ORDERED.

________________________________
BARBARA MOSES
United States Magistrate Judge

26