Hussein v. The Headless Widow LLC

Background

Salma Bahaa Hussein, Brian Noone, Jordan Merritt, Joel Zavala, and Santiago Aljure sued The Headless Widow LLC, doing business as The Headless Widow, and Edin Canovic, also known as Eddie Canovic. The plaintiffs alleged violations of the Fair Labor Standards Act (FLSA) and New York Labor Law. They said they and other non-exempt tipped employees were not paid the required minimum wage or overtime, were required to work off the clock, and had tips improperly kept, deducted, or shared with managerial or supervisory employees. They also alleged that the defendants failed to provide required wage notices and accurate wage statements under New York law.

The plaintiffs moved for conditional certification of an FLSA collective action. Conditional certification is an early-stage procedure that allows potentially similarly situated employees to receive notice and choose whether to join the federal wage claims. The plaintiffs also requested approval of a proposed notice, permission to distribute it by mail and email, an order requiring the defendants to post it at the restaurant, and production of names and contact information for potential opt-in employees.

Conditional certification

The court applied the first step of the Second Circuit’s two-step FLSA process. At this stage, plaintiffs must make a modest factual showing that they and potential opt-in employees were victims of a common policy or plan that violated the FLSA. The court does not decide the ultimate merits of the wage claims at this stage.

The court found that the plaintiffs met that standard. Declarations from Hussein, Noone, Zavala, and Aljure described alleged common practices, including paying a base rate of $10.00 per hour for all hours worked, including overtime hours; requiring tipped employees to perform unpaid work before opening and after closing; requiring employees to clock out before finishing work; and keeping or deducting tips. The declarations also described conversations with other employees who allegedly experienced or complained about the same practices.

The court rejected the defendants’ arguments that the declarations were too conclusory, lacked precise dates and times, or relied too heavily on conversations with employees who were already plaintiffs. The court held that the plaintiffs were not required to provide declarations from nonparty employees or identify every conversation with exact dates and times at this stage. The court therefore granted conditional certification.

Notice

The court authorized distribution of notice by mail and email and ordered the defendants to post the notice in a conspicuous, non-public common area at the restaurant. The court sustained the defendants’ objections to the notice in part and denied them in part.

The revised notice may refer to the fact that the complaint includes New York Labor Law claims, but it must make clear that an FLSA consent-to-join form applies only to the FLSA claims and does not make an employee a claimant on the New York Labor Law claims. The court rejected the request to require potential opt-in plaintiffs to send consent forms directly to the Clerk of Court, instead directing counsel to file received consent forms on the electronic docket within 24 hours. The court also authorized notice covering the three years before the complaint was filed, while leaving later challenges to the timeliness of individual opt-in plaintiffs for a later stage.

The parties were directed to meet and confer and submit a revised proposed notice within seven days of the order.

Employee information

The court granted the plaintiffs’ unopposed request for a list of potential opt-in employees. The list is to include names, job titles, employment dates, last known mailing and email addresses, and telephone numbers.

Disposition

The court stated that the motion for conditional collective certification and mailing of a court-authorized notice was granted in part and denied in part. The Clerk of Court was directed to close the motion docket entry.