Hoti v. Patsy’s Italian Restaurant

Background

Plaintiffs Kreshnik Hoti and Desiart Ymeraga, former servers at Patsy’s Italian Restaurant, sued Patsy’s and its co-owners under the Fair Labor Standards Act (FLSA), the New York Labor Law, and related regulations. The motion addressed only the FLSA claims.

The plaintiffs alleged that they and other servers worked more than 40 hours per week but were not paid overtime because defendants required or allowed time records to show fewer hours. The alleged practices included requiring servers to clock out while continuing to work, delaying clock-ins, and requiring servers to keep recorded hours low. The plaintiffs also alleged that defendants diverted money from a mandatory tip pool through several practices, including retaining differences between tip reports and diverting tips from large tables.

The plaintiffs asked the court to conditionally certify an FLSA collective consisting of servers employed at Patsy’s on or after September 17, 2021; require defendants to provide identifying and employment information for potential participants; and approve proposed notices and a notice-distribution plan.

Legal standard

At the conditional-certification stage, plaintiffs must make a modest factual showing that they and potential participants were victims of a common policy or plan that violated the FLSA. The court generally does not decide the merits, resolve factual disputes, or make credibility determinations at this stage. A later stage, usually after discovery, may determine whether the participating workers are actually similarly situated.

Defendants argued that the court should use a stricter “modest plus” standard because evidence had been disclosed. The court rejected that argument because discovery was not complete; fact discovery was scheduled to close on November 14, 2025, and expert discovery on March 1, 2026. The court therefore applied the modest factual showing standard.

Court’s analysis

For the overtime claim, the court found that the plaintiffs met the required burden. Their declarations described particular servers who allegedly were prevented from clocking in at the start of shifts, required to work after clocking out, told to minimize recorded hours, or required to clock out during shifts and clock back in later. The plaintiffs also stated that specific servers told them they worked overtime. The court concluded that these allegations provided enough of a factual connection to show that other servers may have been subject to the same alleged timekeeping practices.

For the tip-pool claim, the court also found a sufficient showing. The plaintiffs stated that all servers participated in the tip pool and that they discussed with other servers the amount contributed and received. They alleged that servers routinely received less than they contributed. Because the alleged distribution practices would affect participants in the common tip pool, the court concluded that the plaintiffs had met the initial burden for conditional certification.

The court rejected defendants’ argument that the case should not proceed because of an alleged family conflict over the Patsy’s brand and legacy. It also declined to resolve defendants’ arguments that the evidence disproved the alleged overtime and tip violations, because those arguments concerned the merits and were not appropriate for resolution at this stage.

Information and notices

The court ordered defendants to provide, in Excel format if possible, a list of potential opt-in plaintiffs who were servers employed at Patsy’s on or after September 17, 2021. The list must include names, last known addresses, last known phone numbers, last known email addresses, dates of employment, and positions held.

The court approved the proposed written notice subject to revisions. It did not require potential participants to send consent forms to the Clerk of Court. Instead, plaintiffs’ counsel must file received forms on the electronic docket within 24 hours. The notice must include defendants’ counsel’s contact information and must advise potential participants not to contact defendants’ lawyers directly if they join the case.

The court permitted plaintiffs to distribute a shortened notice by text message, but required them to replace “claiming” with “that alleges.” Plaintiffs’ counsel may not contact any potential participant more than twice during the 60-day opt-in period through any one communication channel.

Disposition

Judge Henry J. Ricardo ordered that Plaintiffs’ motion for conditional certification be GRANTED in part and DENIED in part. By November 10, 2025, defendants must produce the spreadsheet, and the parties must meet and confer and submit revised written and text-message notices and a proposed distribution order for the court’s approval. The order concerns whether notice may be sent to potential FLSA participants; it does not decide whether defendants actually violated the FLSA.