Opinion
SA-10-CV-665-XR.
March 1, 2011
ORDER
On this day came on to be considered Plaintiff's motion for conditional certification (doc. no. 15).
Background
Plaintiff brings this FLSA suit on behalf of herself and other similarly situated employees pursuant to the "collective action" provisions of 29 U.S.C. § 216(b). Plaintiff is a server at Defendant's restaurant (Mi Tierra Café and Bakery). Plaintiff alleges that the Defendant improperly "pooled" servers' tips with bartenders at the restaurant who had little to no interaction with the public and thus do not qualify as an "employee who customarily and regularly receives tips." Plaintiff also alleges that her servers' paychecks were automatically deducted $3 for a meal per work shift, regardless of whether the employee consumed any meal. Plaintiff further alleges that thirty minutes were deducted each work shift (ostensibly for a meal break), but that employees worked during their meal break. Finally, Plaintiff alleges that servers were required to attend a pre-shift meeting, but were not compensated for this required attendance and that supervisors delayed employees from "clocking-in" when work was slow and there were few customers.
Plaintiff initially sought to include servers from Defendant's two other restaurants (Pico de Gallo and La Margarita) in this collective action, but she has subsequently amended her request to just Mi Tierra.
Defendant opposes the motion for conditional certification.
Analysis
The FLSA requires employers to pay employees a statutory minimum hourly wage. For each hour an employee works in excess of 40 hours in a given week, employers must pay an overtime wage that is at least one and one-half times the employee's regular rate. Under limited circumstances, however, an employer may pay a "tipped employee" an hourly wage that is less than the minimum wage. Specifically, the employer may pay an employee an hourly wage of no less than $2.13 if the amount of the tips the employee actually receives, added to the hourly wage the employer pays, is at least equal to the minimum wage in effect under section 206(a). This practice is known as taking a "tip credit." See 29 U.S.C. §§ 203(t), 206(a), 207(a). No tip credit, however, may be taken "with respect to any tipped employee unless . . . all tips received by such employee have been retained by the employee," except in cases in which tips are pooled "among employees who customarily and regularly receive tips." 29 U.S.C. §§ 203(m). 29 U.S.C. § 216 permits an employee to bring an action against an employer "[on] behalf of himself . . . and other employees similarly situated." Unlike a Rule 23 class action, in which plaintiffs "opt out" of the class, a § 216 plaintiff must "opt in" to become part of the class. Accordingly, the method adopted by this Court for determining whether to certify a collective action under § 216(b) — the Lusardi two-tiered approach — involves a preliminary decision regarding notice to putative class members. In the first stage, called the notice stage, the District Court must make an initial determination whether notice of the action should be sent to potential class members. This determination is based solely on the pleadings and affidavits and the standard is a lenient one typically resulting in conditional certification of a representative class to whom notice is sent and who receive an opportunity to "opt in." "The decision to create an opt-in class under § 216(b), like the decision on class certification under Rule 23, remains soundly within the discretion of the district court." See U.S.C. § 216(b); Lusardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J. 1987); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995).
Once conditional certification is granted, the case proceeds through discovery as a representative action. Mooney, 54 F.3d 1207, 1214. Upon completion of discovery, the defendant will typically file a motion for decertification. At this second stage of the analysis, the District Court should make a factual determination as to whether the putative class members are similarly situated. If so, then the representative action may proceed; if not, then the class should be decertified, the opt-in plaintiffs dismissed, and the class representatives should be allowed to proceed on their individual claims. See Johnson v. TGF Precision Haircutters, Inc., 319 F.Supp.2d 753, 754-55 (S.D. Tex. 2004).
Plaintiff's pleadings are sufficient to allege a violation of the FLSA. The Court therefore concludes that Plaintiff's allegations are sufficient to meet the lenient standard for conditional certification.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff's allegations are sufficient to allow an initial conditional certification of the case as a collective action. Therefore, the Court GRANTS Plaintiff's Motion for Conditional Certification and For Notice to Potential Class Members. To facilitate the progression of this case through a final determination of the collective action status, the Court ORDERS Defendant to provide Plaintiff with a list (in computer readable format) of the names and last known addresses (and the last four digits of their social security number) of all servers/waitstaff employed by Defendant from March 1, 2008 to the present within fourteen (14) days of the date of this Order. Upon receipt of said list by Plaintiff, Plaintiff shall send to potential class members the attached court approved notice of this action with a date-specific deadline for opting-in that is sixty (60) days from the date of the mailing of the notices.
It is so ORDERED.
SIGNED this 1st day of March, 2011.
IMPORTANT NOTICE OF LAWSUIT AGAINST MTC, INC.
All current and former employees of MTC, Inc. who have worked at Mi Tierra Café Bakery and who have received a direct hourly wage less than the applicable minimum wage at any time from March 1, 2008 to the present.
TO:1. Why am I getting this notice?
Virginia Barrera, a server employed by MTC, Inc. has filed a lawsuit in federal court claiming that MTC, Inc. owes its servers or waitstaff additional wages under federal law. MTC, Inc. records show that you work or have worked at Mi Tierra Café Bakeryas a server at some time since March 1, 2008 and have been paid a direct hourly wage of less than the minimum wage. So, you are eligible to participate in the lawsuit.2. What is the lawsuit about?
The claim in the lawsuit is that MTC, Inc. took a portion of your tips and gave them to other employees who do not receive tips in violation of federal law. As a result, you may be entitled to an additional pay for each hour that you have worked for MTC, Inc. during the last two or three years. The lawsuit also includes claims that you are required to work off-the clock and that deductions from your check for things like meals are against the law. MTC, Inc. disputes that you are owed any money. The Court has not decided who is right.
3. What are my options?
You can make a claim for additional wages by completing, signing and returning the enclosed Consent. If the Court finds in your favor, you may receive additional wages. If not, you will receive nothing. To make a claim for additional wages, you must mail your Consent form so that it is postmarked by ______________ [ 60 days from mailing of Notices ]. Or you may fax your Consent form on or before [ 60 days from mailing of Notices ]. Your Consent form should be mailed to: The Young Law Firm, P.C., 112 W. 8th Ave, Suite 900-D, Amarillo, TX 79101. Or you may fax it to (806) 398-9095.
You may also choose to hire your own attorney to represent you or elect not to make a claim at all. If you do hire you own attorney or choose not to return your Consent form, you will not be a part of this case and will not receive any additional wages, should you become entitled to receive them. If you decide to participate in this case, you may be required to provide documents, information relevant to your claim, and/or testify in discovery and/or at trial.
4. How can I get more information?
If you have questions about joining the lawsuit, you can get more information by calling the attorneys for the person who filed the lawsuit: Jeremi K. Young with The Young Law Firm, PC: 877-895-2937.
The attorneys for MTC, Inc. are Ramon Bissmeyer and Cora C. McGowan with Cox Smith Mathews, Inc.: (210) 554-5500.
5. Can MTC, Inc. retaliate against me?
No. It is against federal law for MTC, Inc. to retaliate against you for filing a claim to recover wages that you may be owed.