Garcia Ramos v. DNC Food Service Corp.

Background

Alfonso Garcia Ramos, Jorge Perez Aguilar, Felix Luna, and Guillermo Alonso Morales sued DNC Food Service Corp., doing business as Speedy’s Deli, and Nikolaos Vasilatos and Spiros Zisimatos. They brought claims under the Fair Labor Standards Act (FLSA), the federal wage law, and the New York Labor Law. They alleged that Speedy’s Deli failed to pay minimum wages for all hours worked and failed to pay overtime premiums for work exceeding 40 hours in a week. They also alleged that they were paid in cash, did not receive pay stubs or adequate breaks, and did not receive required wage notices or were pressured to sign inaccurate notices.

The plaintiffs asked the court to conditionally certify an FLSA collective action, approve proposed notices and consent forms, require notice to be mailed to potential opt-in plaintiffs and posted at Speedy’s Deli, and require the defendants to provide contact information for potential members.

The court emphasized that the background facts were drawn from the parties’ submissions and were not findings of fact.

Legal standard

The FLSA permits employees with similar claims to join a collective action by filing written consent with the court. At the initial stage, plaintiffs must make a modest factual showing that they and potential opt-in plaintiffs were victims of a common policy or plan that violated the FLSA. The court does not decide factual disputes, credibility, or the ultimate merits at this stage. After discovery, the defendants may ask the court to examine the collective more closely and potentially remove members who are not similarly situated.

Overtime claim

The court found that the plaintiffs met the modest showing required for conditional certification of their overtime claim. Although the named plaintiffs held different positions and were paid either flat rates or hourly rates, they alleged that they regularly worked more than 40 hours per week without receiving overtime premiums. Their declarations described their work schedules, payment practices, the lack of time tracking before 2018, and conversations with or observations of employees in a range of front- and back-of-house positions.

The court concluded that these allegations reasonably suggested a blanket policy of not paying overtime to non-management employees. It rejected the defendants’ arguments that employees could not be similarly situated because they had different job duties or because the plaintiffs lacked complete information about coworkers. The court also stated that it would not resolve factual disputes at the conditional-certification stage.

The FLSA generally permits claims based on violations occurring within two years, or three years for willful violations. Because the plaintiffs alleged willfulness and the defendants did not argue for the shorter period, the court used the three-year period for this stage. It noted that Felix Luna’s own FLSA claims might be entirely time-barred because he said he stopped working at Speedy’s Deli around July 2014, but it still considered his statements relevant to the history of the defendants’ compensation practices.

Minimum-wage claim

The court denied conditional certification for the minimum-wage claim. It found that the plaintiffs’ declarations did not sufficiently show that the defendants applied a common policy denying minimum wages to a group of employees.

The court noted that Alfonso Garcia described receiving a weekly flat rate that was above the applicable minimum wage during the period discussed. Jorge Perez stated that he was paid below the applicable minimum wage during one period and at the minimum wage during another. Guillermo Alonso stated that he was sometimes paid at or above minimum wage and sometimes was not. Garcia and Alonso did not provide statements establishing a policy of failing to pay minimum wage, and Felix Luna’s statements about other employees concerned overtime rather than minimum wage. The court also found that Perez’s statements about other employees lacked enough detail to define a potential minimum-wage collective.

Conditional collective and contact information

The court conditionally certified a collective consisting of all non-management employees employed by Speedy’s Deli from April 3, 2016, to the present. The court stated that the starting date could be extended if additional equitable tolling—the possible extension of a filing period because of extraordinary circumstances and reasonable diligence—were warranted.

The court granted the plaintiffs’ request for employee contact information for that collective. The defendants must provide, to the extent contained in their records, employees’ names, last known addresses, email addresses, and telephone numbers, including cell phone numbers. The information must be produced in electronic form. The court stated that the defendants did not have to produce information they did not possess, but found that organizing information from paper records into a spreadsheet or table would not be too burdensome.

Notice

The court did not finally resolve the wording of the proposed notice. Because the notice had to be narrowed to reflect certification of only the overtime claim, the parties were directed to meet and confer and prepare a revised notice. The court determined that any notice ultimately approved must be both mailed and posted at Speedy’s Deli.

The court concluded that a three-year notice period was appropriate for the FLSA collective rather than a six-year period based on possible New York Labor Law claims, because the plaintiffs had not sought class certification of those state-law claims under the applicable federal rule. The court did not set the final end date for the notice period because the notice had not yet been approved and equitable tolling could continue through issuance of the notice.

Disposition

The plaintiffs’ motion for conditional collective certification was GRANTED IN PART AND DENIED IN PART. The court conditionally certified the overtime collective, denied conditional certification for the minimum-wage claim, granted the request for available contact information in electronic form, and directed the parties to submit a revised notice and a joint update within 30 days. The parties’ submission also had to address any remaining objections and propose deadlines for mediation and related discovery.