Flores v. Ceviche

Background

Daniela Flores worked as a server at Mission Ceviche UES, the Second Avenue restaurant, from about August 2022 through April 2023. She brought claims under the Fair Labor Standards Act and New York Labor Law for alleged unpaid wages and overtime, improper use of a tip credit, time shaving and off-the-clock work, failure to pay spread-of-hours premiums, improper meal-credit deductions, and defective wage notices and wage statements. She also alleged retaliation for complaining about tip practices.

The court had previously authorized notice of an FLSA collective action covering non-exempt employees employed by the defendants at any location on or after October 19, 2017. Two people opted into that collective action. This opinion addressed Flores’s separate request for certification under Federal Rule of Civil Procedure 23. She sought certification of a class of current and former front-of-house and back-of-house employees, including delivery workers, at Mission Ceviche’s Second Avenue restaurant, along with a subclass of tipped employees.

Rule 23 analysis

Rule 23 permits class litigation when the proposed class meets requirements including sufficient size, common legal or factual questions, typical claims by the representative, adequate representation, an objectively identifiable membership, and—under Rule 23(b)(3)—when common issues predominate and a class action is the superior method of resolving the dispute.

The court found numerosity satisfied because the proposed class and subclass contained more than 40 people. It found commonality and typicality only for the alleged tip-credit violations affecting front-of-house tipped employees. The evidence showed a common question about whether Mission Ceviche provided a legally adequate tip-credit notice and whether it correctly calculated tipped employees’ overtime rate. The defendants did not meaningfully dispute that they used an incorrect overtime rate; the court stated that the proper rate should have been $17.50 per hour rather than $15 per hour.

The court rejected commonality for the other proposed claims. Regarding meal deductions, the evidence showed differences among employees and individualized questions about whether employees accepted deductions or asked that they be removed. Regarding off-the-clock work and spread-of-hours pay, Flores provided limited personal evidence and vague, unsupported statements about other employees. The court also found insufficient evidence concerning back-of-house and delivery workers.

The wage-notice and wage-statement claims likewise lacked sufficient common proof. Flores did not provide specific evidence about other workers’ notices or statements, and she did not explain concrete injuries caused by the alleged deficiencies. The court noted that some employees may have been paid properly and that individualized defenses and standing questions could arise.

The court found Flores adequate to represent the limited front-of-house tip-credit class and found that class members could be identified using personnel and payroll records. It did not need to resolve the defendants’ asserted conflict involving back-of-house employees because those employees were not included in the certified class.

Predominance and superiority

For the limited front-of-house class, the court found that common issues predominated. Payroll records could identify employees who were shortchanged because the defendants used the wrong tip-credit overtime rate, and common evidence could address the tip-credit policy and notice. The court also found class treatment superior because the claims had relatively low individual values, the class was modest in size, all members worked at one location, and common evidence could be used.

Disposition

The court granted the class-certification motion insofar as it certified a class of front-of-house employees of Mission Ceviche UES claiming additional straight-time and/or overtime pay because of defects in the tip-credit notice, failure to maintain a daily tip log, and miscalculation of the tip-credit overtime rate. Because Mission Ceviche UES opened sometime in 2019, the class period runs from its opening in 2019 through the date of the opinion. The court otherwise denied the motion.

The parties were ordered to meet and confer about class notice and submit a proposed notice by September 26, 2025. The court set October 31, 2025, as the deadline for any summary-judgment motion concerning Flores’s or the opt-in plaintiffs’ individual claims, with opposition due November 28 and replies due December 12, 2025. A pretrial conference was scheduled for February 17, 2026.