Canelas v. Frank & Nino's Pizza Corp.

Background

Ramon O. Canelas sued his former employer, Frank & Nino’s Pizza Corp., doing business as Nona’s Pizza, and the individual defendants identified in the opinion as Naim Elezaj, Fidaim Elezaj, and Fazlija Elezaj. He brought claims under the Fair Labor Standards Act (FLSA), the federal wage-and-hour law, and the New York Labor Law.

Canelas alleged that he worked about 74 hours per week as a pizza maker from June 2018 through March 2019, received a flat weekly rate of $1,100, and was not paid overtime at one-and-a-half times his regular rate. He also stated that several coworkers worked more than 40 hours per week without receiving overtime pay. He asked the court to conditionally certify a collective action under the FLSA for all non-managerial tipped and non-tipped employees who worked at Nona’s Pizza during the relevant period.

Conditional Certification Standard

The court explained that FLSA collective actions use a two-step process. At the initial notice stage, a plaintiff must make a modest factual showing that the plaintiff and potential participants may have been victims of a common unlawful policy or plan. The court does not decide at this stage whether an actual wage violation occurred. At a later stage, after the record is more developed, the court may determine whether the participating workers are in fact similarly situated and may remove them from the case if they are not.

Ruling on the Collective

The court granted in part Canelas’s request for conditional certification. It certified a collective consisting of non-managerial, non-tipped kitchen staff who worked at Nona’s Pizza at any time between June 29, 2016, and the present. The included job categories were pizza makers, chefs and assistants, preparers, and dishwashers.

The court did not include tipped employees, cashiers, or delivery workers. It found that Canelas’s evidence was sufficient, though only barely, for kitchen employees. His affidavit identified coworkers, their jobs, their backgrounds and appearances, his interactions with them, and the basis for his knowledge about their pay. But the affidavit did not sufficiently show that the other employees shared the alleged overtime policy. The court noted that tipped employees were paid hourly rather than by the flat weekly rate Canelas received, and that some of his information about their pay was based more heavily on hearsay or information and belief.

Contact Information and Notice

Because it conditionally certified the collective, the court ordered the defendants to provide Canelas’s counsel with the names, addresses, email addresses, telephone numbers, and employment dates of potential collective members. The parties were ordered to meet and confer about what information the defendants could reasonably provide and to submit a revised proposed notice and consent form by June 10, 2020.

The notice had to be directed only to the certified non-tipped kitchen employees, remove references to New York Labor Law claims, explain that workers who do not join do not give up their rights, clarify that the court—not the parties—would decide whether to award attorneys’ fees and in what amount, and tell potential participants that they could choose their own lawyers rather than being required to use Troy Law.

The court overruled the defendants’ objections seeking more discussion of their defenses and defense counsel’s contact information. It sustained the objection to posting the notice at the restaurant, finding that mailing and electronic distribution would be sufficient and that posting would create unnecessary publicity. The court left the length of the opt-in period for the parties to try to resolve, taking pandemic-related difficulties into account.

Equitable Tolling and Other Proceedings

Canelas asked the court to pause the FLSA filing deadline for potential participants while the notice process took place. The court denied that request, finding no identified delay that would prejudice future participants and noting that the certification motion had been resolved in less than two months. The court stated that tolling questions could be addressed individually later.

The court also scheduled a June 4, 2020 hearing to assess the authenticity of Canelas’s affidavit and whether he reviewed and understood his sworn statements before signing them. The court noted that the hearing could be postponed or held remotely if COVID-19 restrictions limited courthouse operations.

Disposition

The court granted in part the motion for conditional certification, ordered disclosure of potential collective members’ contact information and employment dates, required revisions to the notice and consent form, and denied the request for equitable tolling during the notice period. The order did not decide whether the defendants actually violated the wage laws.