{"id":838,"date":"2023-09-28T17:43:10","date_gmt":"2023-09-28T21:43:10","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=838"},"modified":"2023-09-28T17:43:10","modified_gmt":"2023-09-28T21:43:10","slug":"new-york-federal-court-rules-that-one-long-tenured-employees-testimony-is-sufficient-to-support-granting-of-conditional-certification-of-an-flsa-collective-action","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/09\/28\/new-york-federal-court-rules-that-one-long-tenured-employees-testimony-is-sufficient-to-support-granting-of-conditional-certification-of-an-flsa-collective-action\/","title":{"rendered":"New York Federal Court Rules That One Long-Tenured Employee\u2019s Testimony Is Sufficient To Support Granting Of Conditional Certification Of An FLSA Collective Action"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory S. Slotnick\u00a0 <\/i><\/u><\/b><\/p>\n

Duane Morris Takeaways<\/i>:\u00a0 <\/b>On September 25, 2023, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York District granted conditional certification<\/a> of a collective class under the Fair Labor Standards Act (\u201cFLSA\u201d) in Ademi v. Central Park Boathouse, LLC et al., No. 22 Civ. 8535 (S.D.N.Y. Sept. 25, 2023).\u00a0 In its order, the Court found that one single affidavit, submitted by a long-tenured named employee, provided allegations sufficient to grant his request to conditionally certify the collective action.\u00a0 Employers in the Second Circuit (i.e., New York, Connecticut, and Vermont) should note the extremely minimal burden workers are required to meet at the conditional certification stage of a wage & hour lawsuit, as granting certification based on a single declaration is at the low end of the spectrum as certifications rulings go.\u00a0 The case also serves as the latest reminder for businesses to ensure their wage & hour practices and compliance are up to date given the ever-changing landscape and evolving federal, state, and local rules and regulations concerning wage & hour issues.<\/i><\/p>\n

Case Background<\/b><\/p>\n

Plaintiff, a former long-tenured server who worked at the Central Park Boathouse (the \u201cBoathouse\u201d) from approximately January 2011 through October 16, 2022, filed a complaint on behalf of himself and all current and former front-of-the-house tipped employees (captains, assistants, bartenders, bussers, runners, and servers) employed at the Boathouse within the last six years.\u00a0 In the complaint, the worker sought to recover unpaid wages (including overtime) due to an invalid tip credit policy, unreimbursed costs for maintenance of uniforms, and unpaid wages due to improper meal credit deductions in violation of the FLSA and the New York Labor Law (\u201cNYLL\u201d), as well as failure to provide proper wage statements under the NYLL.\u00a0 Plaintiff also brought a claim for unlawful retaliation against him in violation of both laws, and all claims were filed against the Boathouse and its former owner and operator.\u00a0 Id.<\/i> at 1.<\/p>\n

Plaintiff claimed that he was regularly scheduled to work seven hours a day, five days per week, but also regularly worked two or three double-shifts per week, totaling approximately 49 to 56 hours worked per week.\u00a0 Id<\/i>. at 3.\u00a0 Plaintiff\u2019s declaration included a list of the first (but not last) names of six other servers also allegedly scheduled to work similar hours and shifts, and he claimed there were additional names of other workers as well.\u00a0 Id<\/i>.\u00a0 Plaintiff asserted that the Boathouse paid tipped front-of-the-house employees tip-credited wages without providing them notice that tip credits would be taken against their wages.\u00a0 Id<\/i>. at 4.\u00a0 The complaint claimed the Boathouse thus paid the tipped employees below the New York minimum and overtime rate based on the tip credit, and attached paystubs generated between 2016 and 2020 confirming such rates.\u00a0 Id<\/i>.\u00a0 Plaintiff claimed he personally observed and discussed the Boathouse paying below the required minimum amounts with named and unnamed co-workers.\u00a0 The Complaint also alleged the Boathouse maintained a tip credit policy despite requiring tipped workers spend more than 20% of their total weekly hours performing non-tipped work and required the workers to maintain their own uniforms without proper cost reimbursement to offset cleaning costs.\u00a0 Id<\/i>. at 4-5.\u00a0 Finally, Plaintiff alleged the restaurant improperly deducted meal credits from wages of all tipped front-of-house employees for meals that often made coworkers sick and often consisted of unsold chicken and seafood leftovers.\u00a0 Id<\/i>. at 5.<\/p>\n

On March 23, 2023, Plaintiff filed a motion for conditional certification of a collective action under the FLSA, seeking the Court also allow mailing out notice of the opportunity to join the case to all putative opt-in plaintiffs.\u00a0 Id<\/i>. at 2.<\/p>\n

The Order Granting Conditional Certification <\/b><\/p>\n

In its decision, the Court noted that in assessing whether a plaintiff is \u201csimilarly situated\u201d to employees the plaintiff seeks to represent, courts look to the pleadings, affidavits, and declarations, but often authorize notice at the conditional certification stage based \u201csolely on the personal observations of one plaintiff\u2019s affidavit.\u201d\u00a0 Id<\/i>. at 9.\u00a0 The Court confirmed that at the conditional certification stage (the first of a two-step process for certifying a collective action in the Second Circuit), courts do not resolve factual disputes or weigh the merits of the underlying claims when determining whether potential members of the collective action are similarly situated.\u00a0 Id<\/i>.\u00a0 A more rigorous factual review takes place during the second stage of the certification analysis after discovery, where a court may decertify a conditionally certified collective action and dismiss the claims of the opt-in plaintiffs (without prejudice).\u00a0 Id<\/i>. at 8.<\/b><\/p>\n

Judge McMahon specifically cited the fact that courts in the Second Circuit have \u201croutinely\u201d granted conditional certification of a FLSA collective action based on a single plaintiff\u2019s affidavit when the employee declares that other co-workers were subjected to similar employer practices.\u00a0 In applying the principle to this matter, the Court cited to the single affidavit submitted by the named Plaintiff that chronicled his eleven years of employment at the Boathouse during which he claimed the Boathouse failed to provide him and all other tipped front-of-house employees with notice it was taking a tip credit against their wages, including for all worked hours during which they performed non-tipped duties for more than 20% of the time.\u00a0 Id<\/i>. at 10-11.\u00a0 According to the employee, these common practices resulted in the Boathouse unlawfully compensating him and the other tipped workers below the New York tipped minimum wage and overtime rates.\u00a0 Plaintiff also claimed the Boathouse required him and all tipped front-of-house employees to maintain their work uniforms without proper reimbursement and further deducted a meal credit from their wages for meals that did not meet New York\u2019s minimal meal requirements.\u00a0 Id<\/i>.<\/p>\n

Critically, the employee declared that he had personal knowledge from his own observations and his conversations with named and unnamed co-workers during the course of his eleven years of employment of the Boathouse applying the same policies (and violations) to \u201call tipped front-of-house employees.\u201d\u00a0 Id<\/i>. at 11.\u00a0 Judge McMahon found that based on his declaration alone, Plaintiff satisfied his minimal burden of showing he is \u201csimilarly situated\u201d to the proposed class members.\u00a0 The Court found that Plaintiff set forth a factual basis for his claims of common policies violating the FLSA, i.e<\/i>., specifically, policies \u201cdepriving tipped front-of-house workers of wages, failing to reimburse workers for uniform maintenance, and deducting improper meal credits.\u201d\u00a0 Id<\/i>.<\/p>\n

The Court found unconvincing the Boathouse\u2019s arguments that the worker did receive proper notice of the restaurant\u2019s tip credit policy, failed to plead sufficient facts to support his allegations, and that his declaration contained false statements.\u00a0 The Court instead noted that at the first stage of conditional certification, it \u201cdoes not resolve any factual disputes\u201d and stated that case law is \u201cclear\u201d that a single plaintiff\u2019s affidavit may be enough to meet the evidentiary burden.\u00a0 Id<\/i>. at 11-12.\u00a0 However, the Court did agree with the Boathouse that because two of the job positions Plaintiff sought to include in his collective action (\u201ccaptains\u201d and \u201cassistants\u201d) did not actually exist at the restaurant while it was owned and operated by Defendants, those positions should not be included in the definition of the collective action.\u00a0 Id<\/i>.\u00a0 Otherwise, the Court found that the worker met his \u201clow burden\u201d to show that he was similarly-situated with the other proposed class members.<\/p>\n

Notably, the Court limited the proposed collective action to any persons employed at the Boathouse from October 6, 2019 through the date the Complaint was filed (October 26, 2022), but not including those currently employed on the date of the Decision and Order (September 25, 2023), unless that person was also employed on October 26, 2022.\u00a0 Id<\/i>. at 12-13.\u00a0 This was in light of a new concessionaire (and not the defendants sued in the case) reopening the Boathouse restaurant in June 2023 after it was closed between October 16, 2022 through that time.<\/p>\n

As a result of its granting conditional certification, the Court authorized notice to be sent out to a collective class consisting of all tipped front-of-house bartenders, bussers, runners, and servers employed at the Boathouse during the aforementioned three-year period.\u00a0 In order to effectuate the notice mailing process, the Court also ordered the Boathouse to provide plaintiff with names and addresses of all collective class members to allow them the opportunity to opt-in to the case.\u00a0 The Judge also denied plaintiff\u2019s request to post the notice at the Boathouse, as it is no operated under entirely new management, but granted plaintiff\u2019s request to equitably toll the statute of limitations from the date plaintiff filed his motion for conditional certification through the date notice is mailed out to the potential opt-in plaintiffs.<\/p>\n

Implications for Employers<\/b><\/p>\n

The order in this case is the latest example of the stark minimal burden employees must meet in order to conditionally certify a FLSA collective action within the Second Circuit.\u00a0 In this case, a single plaintiff\u2019s affidavit – which included alleged discussions with unnamed co-workers confirming they were subjected to common unlawful policies – was enough to convince a judge to conditionally certify a proposed collective class.\u00a0 In order to give themselves a chance at defeating a conditional certification motion similar to the one filed against the Boathouse in this case, employers and businesses in the Second Circuit are well- advised to regularly keep themselves up to speed and aware of the ever-evolving developments in the world of wage& hour law, state and local rules and regulations concerning pay practices, and abide by all necessary paperwork and record-keeping requirements in their respective jurisdictions.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory S. Slotnick\u00a0 Duane Morris Takeaways:\u00a0 On September 25, 2023, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York District granted conditional certification of a collective class under the Fair Labor Standards Act (\u201cFLSA\u201d) in Ademi v. Central Park Boathouse, … <\/p>\n

Continue reading “New York Federal Court Rules That One Long-Tenured Employee\u2019s Testimony Is Sufficient To Support Granting Of Conditional Certification Of An FLSA Collective Action”<\/span><\/a><\/p>\n","protected":false},"author":583,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[37],"tags":[],"ppma_author":[30],"class_list":["post-838","post","type-post","status-publish","format-standard","hentry","category-class-certification-motions"],"authors":[{"term_id":30,"user_id":583,"is_guest":0,"slug":"classactiondefense","display_name":"Class Action Defense","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2020\/10\/dmlogo.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/838","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/583"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=838"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/838\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=838"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=838"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=838"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=838"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}