Munoz v. The Group US Management LLC

Background

Osvaldo Munoz and Cristobal Ramirez brought claims under the Fair Labor Standards Act (FLSA) and New York Labor Law concerning minimum wages, overtime, tip credits, tip pooling, and unpaid work. Munoz worked as a busser at La Grande Boucherie. Ramirez worked as a food runner at Petite Boucherie and, as needed, at Boucherie West Village. They alleged that the defendants required tipped employees to perform substantial non-tipped work while taking a tip credit, allowed non-tipped employees such as managers to share in tips, and required work before or after scheduled shifts without pay.

The plaintiffs asked the court to conditionally certify an FLSA collective covering non-exempt front-of-house and back-of-house employees at all of the defendants’ New York City restaurants. Conditional certification is an early-stage decision allowing potential participants to receive notice and choose whether to join an FLSA case; it does not decide whether the alleged wage violations actually occurred. The plaintiffs also requested employee contact information, approval and distribution of a proposed notice, posting of the notice at the restaurants, and tolling—pausing—the FLSA filing deadline until notice could be sent.

Conditional certification

The court found that the plaintiffs met the modest evidentiary burden for conditional certification as to tipped employees at La Grande Boucherie and Petite Boucherie, which the opinion called the “Primary Locations.” Their declarations described their own experiences and conversations with specifically identified co-workers about tip-credit wages, non-tipped work, tip pooling, and unpaid work before and after shifts. At this stage, the court did not weigh the ultimate merits, resolve factual disputes, or decide witness credibility.

The court limited the collective in two ways. First, it excluded non-tipped employees because the plaintiffs’ evidence concerned policies that primarily applied to tipped employees, and the declarations did not provide specific evidence about wage practices affecting cooks, food preparers, porters, or other non-tipped workers. Second, it excluded employees at the defendants’ other restaurants. Although the plaintiffs showed that the restaurants were jointly promoted, managed in certain respects, and shared supplies and sometimes employees or managers, they did not provide enough specific evidence that the challenged wage policies were uniform across the different locations.

Employee information

The court required defendants to provide, within two weeks, a spreadsheet containing the names, last known mailing addresses, email addresses, telephone numbers, dates of employment, current or most recent job titles, and current or most recent compensation rates of tipped employees who worked at the Primary Locations on or after May 17, 2019. The court used the three-year FLSA limitations period for this information rather than the six-year period applicable to certain New York Labor Law claims, because no New York Labor Law class had been certified.

Notice and distribution

The court required the proposed notice to be revised to match the narrower collective. The revisions must explain that any attorneys’ fees and costs requested by plaintiffs’ counsel would be reviewed for fairness and reasonableness by the court, and must address costs if defendants win. The notice must also include defendants’ attorneys’ names and contact information and advise represented opt-in plaintiffs not to contact defense counsel directly.

The court authorized the notice to be translated into Spanish, distributed by mail, email, and/or text message, and posted in English and Spanish at the Primary Locations in places accessible to tipped employees. To limit unwanted contact, plaintiffs’ counsel could not contact any individual more than twice during the 60-day opt-in period through any one communication channel. The parties were ordered to meet and submit a revised notice, related opt-in form, and proposed distribution order for court approval.

Equitable tolling and disposition

The court did not grant the request for blanket equitable tolling of the FLSA limitations period. It reasoned that the plaintiffs waited more than two years after filing the action before moving for conditional certification and had not shown the rare and exceptional circumstances required for tolling. The court stated that its decision did not prevent a later application for tolling based on an individual plaintiff’s circumstances.

Judge Henry J. Ricardo concluded that the plaintiffs’ motion for conditional collective certification was granted in part and denied in part.