CHAVEZ. T & B MANAGEMENT, LLC, ET AL.
Filing
69
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 9/14/2018. For the reasons set forth herein, the motion for conditional certification (Doc. 58 ) is GRANTED IN PART AND DENIED IN PART.(Engle, Anita)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
VANESSA CHAVEZ, AMY BERLAK,
BROOKE GRAHAM, and MELISSA
VARNER, on behalf of
themselves and all others
similarly situated,
Plaintiffs,
v.
T&B MANAGEMENT, LLC, and T&B
CONCEPTS OF HICKORY, LLC, each
d/b/a HICKORY TAVERN,
Defendants.
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1:16cv1019
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
This is a proposed collective action under the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”).
Before the court
is the second motion by Plaintiffs Vanessa Chavez, Amy Berlak,
Brooke
Graham,
and
Melissa
Varner
seeking
conditional
certification of an FLSA collective and approval of their proposed
notice.
(Doc. 58.)
For the reasons set forth below, the motion
for conditional certification will be granted in part and denied
in part.
I.
BACKGROUND
Defendants T & B Management, LLC and T & B Concepts of
Hickory, LLC, each individually and collectively d/b/a Hickory
Tavern (collectively, “Hickory Tavern”), operate approximately
twenty-three casual dining restaurants under the name “Hickory
Tavern” throughout North Carolina, South Carolina, Alabama, and
Tennessee.
(Doc. 49 ¶ 16.)
Plaintiffs are former Hickory Tavern
employees who allege that the restaurant chain has engaged in a
“systemic scheme of wage abuses against their tipped server and
bartender employees at each restaurant it owned, operated and/or
managed” by requiring Plaintiffs, and those similarly situated,
“to
spend
a
substantial
amount
of
time
performing
general
preparation and maintenance duties 1 during discrete time periods
of their shifts when they did not serve customers.”
(Id. ¶ 1.)
Plaintiffs bring this action collectively on behalf of themselves
and those similarly situated, defined as “[a]ll hourly tipped
employees of Hickory Tavern who work, or worked, as servers [or
bartenders] 2 at any of Defendants’ Hickory Tavern restaurants from
1
These maintenance duties include: attending pre-shift meetings, cutting
and preparing garnishes, cutting lemons, brewing tea, portioning sugar
for tea, preparing condiment cups, rolling silverware into napkins,
making coffee, stocking cups, stocking server stations, filling ice bins,
stocking straws, lining and distributing trash cans, preparing
sanitizing bottles for cleaning, setting up patios, setting up ashtrays,
wiping down tables and chairs, filling condiment pourers, setting up
mats, emptying and dumping trash cans, breaking down server stations,
breaking down soda machines, washing mats, vacuuming and cleaning vacuum
cleaners, sweeping floors, stocking condiment shelves, cleaning coolers,
cleaning shelves, cleaning coffee makers and pots, cleaning counters and
stainless surfaces, taking inventory, cleaning wood surfaces with
Murphy’s Oil, and cleaning parking lots. (Doc. 49 ¶¶ 53, 55.)
2 All named Plaintiffs bring this action on behalf of servers.
(Doc. 49
¶ 21.) In addition, Plaintiffs Amy Berlak and Melissa Varner bring this
action on behalf of all bartenders who were employed by Hickory Tavern
during the relevant time. (Id. at 6.)
2
August 1, 2013 3 through the present, and who Defendants did not
pay minimum wage when they spent a substantial amount of time
performing general preparation and maintenance work before and
after their shifts serving customers.”
(Id. ¶ 21.)
Plaintiffs were paid $2.13 per hour while they worked as
servers and/or bartenders, in addition to the tips they earned.
(Id. ¶ 30.)
Pursuant to the FLSA, Hickory Tavern can take a “tip
credit” for tips earned by its servers and bartenders to meet the
federal
minimum
wage
requirement,
as
long
as
the
tips,
in
combination with the employees’ hourly wage, meet or exceed the
federal minimum wage.
(Id. ¶ 30.)
However, based on the dual
jobs regulation, Hickory Tavern cannot take a tip credit for hours
worked by tipped employees when they spend a substantial amount of
time on non-tip generating work, such as preparatory and cleaning
tasks. 4
Plaintiffs claim they were performing dual jobs — one as
3
Though Plaintiffs’ second amended complaint provides August 1, 2013,
as the start date for the opt-in class (Doc. 49 ¶ 21), the start date
for the proposed class is June 23, 2014, as described in Plaintiffs’
second motion for conditional certification. (Doc. 58 at 2.)
4
The Department of Labor issued an opinion letter on December 20, 1985,
discussed in the court’s previous order (Doc. 48), which states that
“[s]ection 531.56(e) deals with tipped employees who are performing dual
jobs. As explained in this section, when an individual is involved in
a tipped occupation and a nontipped occupation, the tip credit is
available only for the hours spent in the tipped occupation.
For
example, when a maintenance person in a hotel also serves as a waiter
or waitress, the tip credit is available only for the hours worked as a
waiter or waitress.” (Doc. 59-6 at 3.) Furthermore, the opinion letter
notes that “where the facts indicate that specific employees are
routinely assigned to maintenance-type work or that tipped employees
spend a substantial amount of time in performing general preparation
3
a server and/or bartender and another as a preparation and cleaning
employee — but that they were only being paid at the rate of $2.13
per hour for their tipped and non-tipped work.
at 3.)
(Id. ¶ 3; Doc. 59
Plaintiffs seek payment of the full minimum wage of $7.25
per hour, rather than $2.13 per hour, for their time spent in
preparatory and cleaning work apart from their time engaged in tip
generating work.
(Doc. 49 ¶ 4.)
Plaintiffs also seek liquidated
damages, attorney’s fees, and expenses. (Id.)
On August 1, 2016, Plaintiffs filed their complaint against
Hickory Tavern.
amended
complaint
(Doc. 1.)
(Doc.
6)
Subsequently, Plaintiffs filed an
and
a
motion
for
conditional
certification as a collective class (Doc. 38), while Hickory Tavern
filed a motion to strike (Doc. 22) and a motion to dismiss (Doc.
28).
On April 17, 2017, the court held a hearing on the pending
motions.
On May 24, 2017, the court construed the relevant Department
of Labor regulations to permit a “dual occupation” claim, and
granted Hickory Tavern’s motion to dismiss without prejudice to
allow Plaintiffs to file a second amended complaint to raise such
a claim for recovery of minimum wages for employees whose duties
are either non-tippable and unrelated to the tippable occupation,
or are non-tippable, related to the tippable occupation, and take
work or maintenance, we would not approve a tip credit for hours spent
in such activities.” (Id. at 4.)
4
place before or after tippable duties for “a substantial amount of
time.”
(Doc. 48 at 23.)
The court also denied both the motion to
strike and the motion for conditional certification as moot.
at 30.)
(Id.
Shortly afterwards, on June 23, 2017, Plaintiffs filed a
second amended complaint, alleging that Hickory Tavern’s payment
practices violated the dual jobs regulation of the FLSA.
49.)
(Doc.
On July 24, 2017, Hickory Tavern filed another motion to
dismiss (Doc. 51), which was denied by the court on December 21,
2017 (Doc. 55).
On February 14, 2018, Plaintiffs filed the pending motion to
conditionally “certify an opt-in class of all former and current
tipped
server
and
bartender
employees
at
all
restaurants from June 23, 2014 to the present.”
Hickory
Tavern
(Doc. 58 ¶ 1.)
The motion has been fully briefed and is ready for consideration.
(Docs. 59, 64, 65.)
On September 12, 2018, the court held a
hearing on the pending motion.
II.
ANALYSIS
A.
Motion for Conditional Certification
For any violation of the FLSA, an employee may bring a
collective
action
on
similarly situated.”
behalf
of
herself
29 U.S.C. § 216(b).
or
“other
employees
To become part of the
litigation, each “similarly situated” employee must file his or
her written consent with the court.
Id.
Employees are “similarly
situated” when they “raise a similar legal issue as to coverage,
5
exemption, or nonpayment o[f] minimum wages or overtime arising
from at least a manageably similar factual setting with respect to
their job requirements and pay provisions.”
Solais v. Vesuvio's
II Pizza & Grill, Inc., 1:15CV227, 2016 WL 1057038, at *5 (M.D.N.C.
Mar. 14, 2016) (quoting McLaurin v. Prestage Foods, Inc., 271
F.R.D. 465, 469 (E.D.N.C. 2010)) (alteration in original).
FLSA class certification typically takes place in two stages. 5
Long v. CPI Sec. Sys., Inc., 292 F.R.D. 296, 298–99 (W.D.N.C.
2013); Hollis v. Alston Pers. Care Servs., LLC, No. 1:16CV1447,
2017 WL 3327591, at *2 (M.D.N.C. Aug. 3, 2017) (citing Solais,
2016
WL
1057038,
certification,
employees’
at
during
claims
*5).
which
are
The
the
first
court
“similarly
stage
is
determines
situated”
conditional
whether
such
that
the
the
distribution of court-approved notice to possible class members is
merited.
Long, 292 F.R.D. at 298; Clark v. Williamson, No.
1:16cv1413, 2018 WL 1626305, at *2 (M.D.N.C. March 30, 2018)
(citing Hollis, 2017 WL 3327591, at *2).
At the conditional
certification stage, “[c]ollective action plaintiffs are not bound
by Rule 23's requirements of numerosity, commonality, typicality
5
“The term ‘similarly situated’ is not defined in the FLSA and the
Fourth Circuit has not articulated how the ‘similarly situated’
requirement of § 216(b) should be applied.” Long v. CPI Sec. Sys., Inc.,
292 F.R.D. 296, 298 (W.D.N.C. 2013) (citing Gregory v. Belfor USA Grp.,
Inc., No. 2:12CV11, 2012 WL 3062696, at *2 (E.D. Va. July 26, 2012)).
However, “the majority of courts in the Fourth Circuit adhere to the
two-stage analysis contemplated by § 216(b).” Id. (listing decisions
in the Fourth Circuit where the two-stage analysis was used).
6
and adequacy; they need only demonstrate that they are ‘similarly
situated’ to proceed as a class.”
Clark, 2018 WL 1626305, at *2
(quoting Robinson v. Empire Equity Grp., Inc., No. WDQ-09-1603,
2009 WL 4018560, at *1 n.8 (D. Md. Nov. 18, 2009)); Solais, 2016
WL 1057038, at *5 n.6.
If conditional certification is granted,
the putative class members are provided with notice of the lawsuit
and the opportunity to opt in, and discovery is conducted.
292 F.R.D. at 299.
Long,
If the defendant then files a motion for
decertification, the court moves to the second stage, in which the
court
applies
a
“heightened
“similarly situated” inquiry.
fact
specific
standard”
to
the
Id. (citing Choimbol v. Fairfield
Resorts, Inc., 475 F. Supp. 2d 557, 563 (E.D. Va. 2006)).
The conditional certification standard is “fairly lenient,”
because “the court, and the parties, have minimal evidence at this
point in the proceedings.”
Adams v. Citicorp Credit Servs., Inc.,
93 F. Supp. 3d 441, 453 (M.D.N.C. 2015) (citation omitted).
While
the conditional certification standard is lenient, it is not a
“rubber stamp approach,” and “[m]ere allegations will not suffice;
some factual evidence is necessary.” Id. (citations omitted).
To
meet this burden, the plaintiff “need only make a relatively modest
factual showing that a common policy, scheme or plan [that violated
the law] exists.”
Id. (quoting Mitchel v. Crosby Corp., No. DKC
10–2349, 2012 WL 4005535, at *2–3 (D. Md. Sept. 10, 2012)).
To
meet the low burden for conditional certification, the evidence
7
must amount to “more than vague allegations with meager factual
support,”
but
“need
not
[]
enable
the
court
to
determine
conclusively whether a class of similarly situated plaintiffs
exists.”
disputes,
Id.
At this stage, “the Court does not resolve factual
decide
substantive
credibility determinations.”
issues
on
the
merits,
or
make
Solais, 2016 WL 1057038, at *6
(quoting Adams, 93 F. Supp. 3d at 454).
Plaintiffs argue that they have met the relatively modest bar
required for conditional certification by alleging that “Hickory
Tavern
maintained
a
common
policy
of
having
its
servers
and
bartenders spend a substantial amount of time performing pre-shift
and post-shift preparatory and cleaning duties at discreet [sic]
time periods before and after they served customers.”
18.) 6
(Doc. 59 at
They reiterate that the practices described in the second
amended complaint violate the dual jobs regulation and claim that
all members of the putative class are similarly situated.
(Id.)
Plaintiffs have also filed four declarations, one from each named
Plaintiff, in support of their claims that state that they know
other servers and bartenders who worked or are working at Hickory
Tavern who want to join this lawsuit.
(Id. at 18; Doc. 59–2 ¶ 23;
Doc. 59–3 ¶ 26; Doc. 59–4 ¶ 22; Doc. 59–5 ¶ 29.)
6
Plaintiffs’
Plaintiffs also emphasize that Hickory Tavern referred to the opening
and closing duties at all of its restaurants as “similar” in its answer
to the second amended complaint. (Doc. 56 ¶¶ 42–43; Doc. 59 at 9.)
8
declarations also include evidence of training conducted at one
Hickory
Tavern
location
by
employees
from
other
locations,
training materials provided to servers that were distributed at
other Hickory Tavern locations, and explanations given to servers
during training that the preparatory and cleaning tasks were part
of server duties at other Hickory Tavern locations.
(Doc. 59–2
¶¶ 4–6; Doc. 59–4 ¶¶ 3–6; Doc. 59–5 ¶¶ 3–6.)
Hickory Tavern argues that Plaintiffs have not shown that the
proposed class is similarly situated because their motion “rests
precariously
on
just
four
now
outdated
declarations
alleging
personal experiences at four different Hickory Tavern locations,”
which Hickory Tavern claims have been rebutted by the declarations
of five Hickory Tavern managers and one regional manager that it
filed.
(Doc. 64 at 2.)
The declarations filed by Hickory Tavern
note that each Hickory Tavern restaurant has a different general
manager who oversees operations and that each general manager has
significant control over the store under his or her restaurant.
(Doc. 64-1 ¶ 7; Doc. 64-2 ¶ 5; Doc. 64–3 ¶ 4; Doc. 64-4 ¶ 6; Doc.
64–5
¶ 5;
Doc.
64–6
¶ 4.)
As
such,
Defendants
claim
that
Plaintiffs have not identified a common plan or policy which
violates the FLSA and that “Plaintiffs have brought personally
distinct and individually fact-intensive claims of the sort that
are simply untenable, unworkable, and inappropriate to adjudicate
collectively under Section 216(b).”
9
(Doc. 64 at 2.)
Conditional
certification
appropriate here.
of
the
proposed
class
is
While the declarations filed by Hickory Tavern
indicate that its managers have some control over their stores, 7
each
of
these
practices. 8
declarations
described
substantially
similar
Given the similarity between the practices described
by the Plaintiffs’ and Defendants’ declarations, the court finds
that Plaintiffs have adequately demonstrated that the members of
the proposed class are similarly situated and have adequately
demonstrated that there was a common plan at Hickory Tavern which
violated the FLSA.
Hollis, 2017 WL 3327591, at *3 (noting that a
7
Defendants also note that Hickory Tavern instituted a new policy in
May 2106 which pays bartenders and servers minimum wage while opening
and closing tasks are being completed. (Doc. 64 at 5, 13.) This policy
was instituted at all Hickory Tavern locations, suggesting that general
managers are sometimes subject to formal company-wide payment policies
for servers and bartenders and that a uniform change to the minimum wage
practice at all Hickory Tavern locations was deemed necessary in May
2016.
8
For example, each declaration includes a list of opening and closing
tasks that servers and/or bartenders must complete before or after these
shifts serving customers, including: brewing tea, brewing coffee,
cutting lemons, stocking glasses, filling ice wells, making sure patios
are clean and set up, stocking trash cans, making sure tongs and ice
scoops are at the server stations, wiping down tables and chairs, rolling
silverware, restocking and cleaning various sauce and condiment
containers, restocking sugar caddies, dumping trash cans, breaking down
server stations, cleaning surface areas and floors, cleaning mats,
vacuuming, restocking towels and paper towels, cleaning woodwork and
wiping it with Murphy’s oil, stocking the bar area, cleaning the bar
area
(Doc. 64-2 at 8–15; Doc. 64-3 at 7–11; Doc. 64-4 at 8–12; Doc.
64-5 at 7–13; Doc. 64-6 at 7–14.)
The declarations also support
Plaintiffs’ claims that Hickory Tavern servers and bartenders sometimes
had to attend off-duty meetings for which they were not paid minimum
wage and that they often had to attend pre-shift meetings. (Doc. 64–2
¶¶ 14–15; Doc. 64-3 ¶ 14–15; Doc. 64-4 ¶ 19; Doc. 64-5 ¶ 15; Doc. 64-6
¶ 15.)
10
plaintiff need only make a modest factual showing that a common
policy that violated the law existed in order for conditional
certification to be appropriate); De Luna-Guerrero v. The North
Carolinas Growers Assoc., Inc., 338 F. Supp. 2d 649, 654 (E.D.N.C.
2004) (noting that, while the Fourth Circuit has not defined
“similarly situated,” in the context of conditional certification
it means “similarly situated with respect to the legal and, to a
lesser extent, the factual issues to be determined,” and that
“persons who are similarly situated to the plaintiffs must raise
a similar legal issue as to [the FLSA violation] arising from at
least a manageably similar factual setting with respect to their
job requirements and pay provisions, but their situations need not
be identical”); Knox v. Jones Grp., 208 F. Supp. 3d 954, 964–65
(S.D.
Ind.
2016)
(granting
conditional
certification
where
Plaintiffs’ declarations contained allegations of uniform training
and performing the same non-tipped work at other restaurants). 9
While
Hickory
Tavern
argues
that
Plaintiffs
misrepresent
the
amount of time they spent on their opening and closing duties,
“the
Court
credibility
does
not
resolve
determinations”
at
factual
this
9
disputes . . . or
stage.
Solais,
make
2016
WL
This conclusion is supported by the fact that a number of potential
plaintiffs have already attempted to opt in. (Docs. 7–19, 27.) Each
attempt to opt in has been made by former employees of Hickory Tavern
who worked in one of the four Hickory Tavern restaurants where the named
Plaintiffs worked, even though each store ostensibly had a different
manager. (Doc. 64 at 5 n.2.)
11
1057038, at *6 (quoting Adams, 93 F. Supp. 3d at 454).
As such,
the court grants Plaintiffs’ motion for conditional certification
and concludes that step one notice is appropriate.
Therefore,
the
court
conditionally
certifies
the
FLSA
collective proposed by Plaintiffs and defines the class to include:
all former and current tipped server and bartender employees at
all Hickory Tavern restaurants from June 23, 2014.
Because the
cut-off date is disputed, it will be addressed below.
B.
Notice to Potential Class Members
Hickory Tavern argues that the court should not facilitate
notice to the class on the grounds that Plaintiffs have not
demonstrated sufficient evidence for conditional certification to
be granted.
(Doc. 64 at 18.)
Plaintiffs argue that the court
should facilitate notice to the putative class members, as they
have no way of identifying and contacting all the current and
former servers and bartenders at Hickory Tavern restaurants. (Doc.
59 at 19–20.)
They claim that Hickory Tavern likely has access to
the contact information for its current and former employees, so
it is appropriate for the court to exercise its discretion to
facilitate notice to the putative class.
(Id. at 20.)
“The FLSA ‘manifests a preference that when collective action
certification is granted, a court-controlled notice be provided to
potential putative plaintiffs, rather than permitting unregulated
solicitation efforts to secure joinder by those individuals.’”
12
Adams, 93 F. Supp. 3d at 456 (quoting Colozzi v. St. Joseph's Hosp.
Health
Ctr.,
595
F.
Supp.
2d
200,
210
(N.D.N.Y.
2009)).
Accordingly, the court has a “managerial responsibility to oversee
the joinder of additional parties to assure that the task is
accomplished
in
Hoffmann–La
an
Roche
efficient
Inc.
v.
and
proper
Sperling,
way.”
493
U.S.
Id.
(quoting
165,
170–71
(addressing parallel provision of Age Discrimination in Employment
Act)).
Time is of the essence for putative class members to join
the litigation because the statute of limitations continues to run
until opt-in plaintiffs file their written consent.
See 29 U.S.C.
§§ 255, 256.
Given the limited information available to Plaintiffs, the
ease of access to the requested information by Hickory Tavern, and
the time constraints for potential class members to opt-in to the
litigation,
the
court
finds
appropriate in this instance.
Subject
to
the
limitations
that
court-supervised
notice
is
See Adams, 93 F. Supp. 3d at 456.
outlined
below,
the
court
finds
Plaintiffs’ requested relief appropriate.
Plaintiffs request that the court order Hickory Tavern to
provide
them
with
the
“names,
last
known
addresses,
email
addresses, and cellular telephone numbers of all putative class
members.”
(Doc. 58 at 2.)
They argue that the email addresses
and phone numbers are appropriate because “[a]s we have become a
mobile society, a person’s ‘email address and cell phone number
13
serv[es]
as
the
communication.’”
most
consistent
and
reliable
method
of
(Doc. 65 at 11 (citing Irvine v. Destination
Wild Dunes Mgmt., Inc., 132 F. Supp. 3d 707, 711 (D.S.C. 2015).)
Plaintiffs further request that the court: (1) approve their
proposed
Notice
of
Conditional
Certification
(Doc.
59–7)
and
consent to join forms (Doc. 59-8); (2) order Hickory Tavern to
publish the Notice of Conditional Certification at a conspicuous
location at each Hickory Tavern restaurant; (3) allow notice by
text message to be sent to the last known cell phone number for
each member of the proposed class; (4) allow each class member
ninety days to return their opt in forms for filing; and (5) allow
reminder notices to be sent forty-five days after the initial
notice is sent.
(Doc. 59 at 20–21.)
Hickory Tavern argues that, in the event that the court does
conditionally certify the proposed class, notice be limited to
only the servers and bartenders who worked at the four restaurants
where the Plaintiffs worked.
(Doc. 64 at 18.)
Hickory Tavern
also argues that the notice should be limited to servers and
bartenders who worked at Hickory Tavern before May 2016, as Hickory
Tavern changed its policy in May 2016 to pay minimum wage to all
servers and bartenders who worked before opening or after closing
and this policy change would eliminate Plaintiffs’ dual job claim.
(Id. at 19; Doc. 64–1 ¶ 12.)
In addition, Hickory Tavern argues
that it should only have to provide Plaintiffs with the names and
14
addresses of the proposed class members, as disclosure of telephone
numbers and email addresses raise privacy concerns and would allow
Plaintiffs to contact class members in a way that would not allow
Hickory Tavern to know what notification is actually being given
to proposed class members.
Tavern
objects
to
(Doc. 64 at 19–20.)
Plaintiffs’
request
that
Lastly, Hickory
notice
of
the
conditional certification be posted at a conspicuous location in
each of its restaurants because it would imply “that Hickory Tavern
supports the collective action against it which it does not.” (Id.
at 20.)
Hickory Tavern does not raise any specific objection to
the content of the proposed notice, does not challenge the ninety
day opt-in period, and does not respond to Plaintiffs’ request to
send a reminder notice forty-five days after the initial notice is
sent.
Courts
have
discretion
to
permit
limited
facilitate notice in FLSA collective actions.
discovery
to
Lee v. ABC Carpet
& Home, 236 F.R.D. 193, 201–02 (S.D.N.Y. 2006) (collecting cases).
While courts have routinely approved requests for home addresses
and email addresses, courts have been more reluctant to authorize
the disclosure of other private information, such as telephone
numbers.
See, e.g., Hart v. Barbeque Integrated, Inc., No. 2:17-
CV-227-PMD,
2017
WL
4812591,
at
*7
(D.S.C.
Oct.
25,
2017)
(“Although email addresses are more routinely disclosed, district
courts in this circuit have required a showing of a ‘special need’
15
before requiring the disclosure of telephone numbers.”).
In
addition, when exercising their discretion to facilitate notice of
a collective action under the FLSA, district courts routinely
approve initial notice to potential plaintiffs by regular mail,
email, and posting at the defendant’s workplace.
See, e.g., Evans
v. Caregivers, Inc., No. 3:17-CV-0402, 2017 WL 2212977, at *7 (M.D.
Tenn. May 19, 2017) (approving notice to potential class members
by
regular
mail,
email,
and
posting
in
defendant’s
office
locations); Arnold v. Acappella, LLC, No. CV BPG-15-3001, 2016 WL
5454541, at *4–5 (D. Md. Sept. 29, 2016) (approving notice by
regular
mail,
email,
and
posting
notices
in
the
defendants’
restaurants).
The court will direct Hickory Tavern to produce to Plaintiffs
the names, last known home addresses, and email addresses of the
putative class members who worked at a Hickory Tavern restaurant
before the payment policy change in May of 2016.
See Irvine, 132
F. Supp. 3d at 711–12 (directing defendant to produce names, dates
of employment, cell phone numbers, current home phone number,
current email address, and current mailing address of all potential
plaintiffs in FLSA collective action.)
However, the court will
deny Plaintiffs’ request for the production of the telephone
numbers for all collective members as, absent a further showing of
need, email should be adequate to facilitate notice to the putative
class members and the court is concerned about the privacy of the
16
putative class.
Hart, 2017 WL 4812591, at *7.
The court will
limit the notice to those who were employed by Hickory Tavern
before May of 2016 because Plaintiffs have no record evidence that
the policy change was not implemented, and Plaintiffs’ counsel
acknowledged at the hearing that the policy change would eliminate
Plaintiffs’ dual jobs claim thereafter.
Further, Plaintiffs’
request to send a reminder notice forty-five days after sending
the initial notice will be approved.
Knox, 208 F. Supp. 3d at
964–65 (approving the sending of reminder notices and noting that
“[d]eadline reminders are commonplace”).
The court will also
direct Hickory Tavern to post the proposed notice in a prominent
location viewable by all tipped server and bartender employees in
each of its restaurants.
Lastly, although no objection has been
raised as to the form of the proposed notice, the court has
reviewed the proposed notice with care and finds that it is fair
and appropriate.
The proposed notice (Doc. 59-7) is approved as
submitted in all respects except for the class definition; the
class definition shall be changed to “All current and former tipped
server and bartender at any Hickory Tavern Restaurant from June
23, 2014, to May 2016,” because of the May 2016 change to Hickory
Tavern’s minimum wage payment policy.
III. CONCLUSION
Based on these findings,
IT IS THEREFORE ORDERED as follows:
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1.
Plaintiffs’ motion for conditional certification (Doc.
58) is GRANTED in part as to the FLSA collective, defined as:
All former and current tipped server and bartender
employees at all Hickory Tavern restaurants from June
23, 2014, to May 2016.
2.
Plaintiffs’ proposed notice (Doc. 59-7) is APPROVED,
except that the FLSA collective definition shall be changed to
“All former and current tipped server and bartender employees at
all Hickory Tavern restaurants from June 23, 2014, to May 2016,”
and the opt-in period shall extend to ninety days from the date
the notice is mailed to putative class members.
3.
Plaintiffs’ counsel is authorized to send the approved
notice by first-class U.S. mail to the last known address of each
putative plaintiff, who was employed by Hickory Tavern before the
policy change in May of 2016, within fourteen (14) days of the
entry of this order;
4.
Plaintiffs’ counsel is authorized to send an electronic
copy of the approved notice to the personal email address (for
former employees) or work email address (for current employees) of
each putative plaintiff, who was employed by Hickory Tavern before
the policy change in May of 2016, within fourteen (14) days of the
entry of this order;
5.
Plaintiffs’
counsel
is
authorized
to
re-mail
notices/postcards that are returned as undeliverable for those
individuals for whom counsel can find better addresses;
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6.
Plaintiffs’ counsel is permitted to send by first-class
U.S. mail a reminder postcard to potential opt-in plaintiffs who
have not returned their Consent Form, forty-five (45) days before
the expiration of the opt-in period;
7.
Defendants
shall
post
the
approved
notice
in
a
conspicuous place in each of its Hickory Tavern restaurants within
fourteen (14) days of the entry of this order; and
8.
Defendant
shall
provide
Plaintiffs’
counsel,
in
electronically readable/importable form, the names, addresses, and
email addresses of all collective members, who were employed by
Hickory Tavern before the policy change in May of 2016, within
seven (7) days of the entry of this order.
This information shall
only be disseminated among Plaintiffs’ counsel, and Plaintiffs’
counsel may use this information only in connection with this
litigation as permitted in this memorandum opinion and order.
/s/
Thomas D. Schroeder
United States District Judge
September 14, 2018
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