Hossain v. Let's Eat, LLC

Background

Zakir Hossain, Daniel Inclan, and Armando Mesinas sued Let’s Eat, LLC d/b/a Extra Virgin, Michele Gaton, and Joey Fortunato under the Fair Labor Standards Act (FLSA) and New York Labor Law. They alleged that the defendants failed to pay required wages and overtime, improperly used a tip credit, required tipped employees to perform substantial non-tipped work, included non-customer-facing managers in a tip pool, paid wages late, failed to provide required wage notices, issued inaccurate wage statements, and failed to pay certain spread-of-hours premiums. The plaintiffs sought to represent themselves and other current or former employees with similar claims.

The plaintiffs moved for conditional certification of an FLSA collective action, court-approved notice to potential participants, permission to distribute the notice by mail, email, and text message, posting of the notice at the defendants’ restaurants, equitable tolling of potential participants’ limitations periods, and expedited production of employee contact and employment information.

Conditional certification

The court applied the FLSA’s initial, relatively lenient certification standard. At this stage, plaintiffs had to make a modest factual showing that they and other workers were subject to a common policy or plan that may have violated the law. The court found that the three declarations, along with payroll and wage records, were enough to satisfy that standard. The declarations described similar wage practices involving tipped and non-tipped employees, overtime, tip credits, tip pools, wage notices, wage statements, and late payments. The payroll records also showed that the named plaintiffs received a $10.00 hourly rate while working more than 40 hours in a week.

The court therefore granted conditional certification of an FLSA collective action. The certified group consists of non-exempt front-of-house and back-of-house employees—including servers, bussers, bartenders, food runners, delivery persons, cashiers, porters, cooks, line cooks, food preparers, hostesses, stock persons, and dishwashers—who were employed by the defendants on or after May 28, 2021. The court denied conditional certification for employees who worked before May 28, 2021.

Notice and distribution

The court approved the proposed notice, with the revised definition of covered employees. It approved distribution by mail, email, and text message. Because the Extra Virgin restaurant had closed, the court declined to require posting in employee areas.

Potential opt-in plaintiffs may send consent forms to the plaintiffs’ counsel. The court ordered counsel to file each consent form on the court docket within 24 hours after receiving it. The notice also informs potential participants that they may consult or retain separate counsel.

Equitable tolling

The court denied the named plaintiffs’ request for automatic equitable tolling. Equitable tolling is an exceptional measure that can extend a filing deadline when a person diligently pursued rights but an extraordinary circumstance prevented timely action. The court found that deciding whether hypothetical future opt-in plaintiffs would qualify for tolling was premature. Individual opt-in plaintiffs may seek tolling later and must show that it applies to their circumstances.

Employee information

The court granted in part and denied in part the request for expedited discovery. The defendants must produce, within 45 days, the names, titles, dates of employment, last known mailing addresses, email addresses, compensation rates, and known telephone numbers of covered employees. The information must be provided in a computer-readable format, but it need not be in an Excel spreadsheet.

Disposition

The court stated that the motion for conditional class certification was GRANTED IN PART AND DENIED IN PART. It granted conditional certification for covered employees employed on or after May 28, 2021, denied certification for those employed before that date, approved the modified notice and its specified distribution methods, declined to order workplace posting, denied automatic equitable tolling for the named plaintiffs, and ordered production of the specified employee information within 45 days. Judge Jeannette A. Vargas directed the Clerk of Court to terminate the motion docketed as ECF No. 35.