Pequero v. Montafon LLC

Background

Amin LaFranco Pequero, Ruben Mojica, and Henry Martinez sued Montafon, LLC, doing business as Mont Blanc 52, Balz Eggimann, and Maria Lohmeyer under the Fair Labor Standards Act (FLSA) and the New York Labor Law. They alleged that they worked more than 40 hours per week at the restaurant but were paid flat weekly amounts without overtime compensation. The opinion states that Eggimann owned the restaurant and Lohmeyer managed it.

Plaintiffs sought conditional certification under Section 216(b) of the FLSA. At this preliminary stage, conditional certification allows a court to authorize notice to potentially similar workers, who may then choose to join the case by filing written consent. The court does not decide the ultimate merits of the wage claims at this stage.

Legal Standard

The court applied the FLSA's two-step process for collective actions. At the first step, plaintiffs must make a modest factual showing that they and potential opt-in workers were affected by a common policy or plan that violated the law and share a material factual or legal issue. The court does not resolve factual disputes, decide the ultimate wage claims, or make credibility determinations at this stage.

Conditional Certification

The court found that plaintiffs met the required preliminary showing for salad makers and dishwashers. All three named plaintiffs allegedly performed salad-making or dishwashing work, worked more than 40 hours per week, were not required to use a time clock until August 2018, and were paid flat amounts that allegedly did not include overtime. From those allegations and the declarations of Pequero and Mojica, the court found it reasonable to infer that other salad makers and dishwashers may have been subject to the same alleged pay practices.

The court declined to include other positions. Plaintiffs provided no sufficient details about the duties, hours, or pay of cooks or delivery workers, and their submissions did not identify the positions of employees who allegedly complained about unpaid overtime. The court also excluded waiters because the motion papers and declarations did not address that position. Although the complaint alleged that Pequero performed some prep-cook work, the court found no sufficient evidence that other prep cooks worked similar hours, were paid similarly, or shared material factual or legal issues with the named plaintiffs.

Notice and Scope

The court granted in part and denied in part Plaintiffs' motion for conditional certification and court-authorized notice. The conditionally certified collective covers current and former workers employed by the defendants at Mont Blanc 52 as salad makers and/or dishwashers from December 26, 2015, through the present. The court used the three-year FLSA period for purposes of notice because plaintiffs alleged willful violations, while noting that defendants disputed willfulness.

The court authorized a 60-day period for potential plaintiffs to opt in. The notice may be sent in English and Spanish and must also be posted in a conspicuous location at the restaurant during the opt-in period. If the restaurant is closed, the opinion explains that the notice should be posted on the exterior while it remains under the defendants' control and reposted inside when the restaurant reopens.

The proposed notice and consent form must be modified and submitted for court approval. Plaintiffs must confer with defendants and submit final versions within two weeks of the order. Within three weeks, defendants must provide Plaintiffs' counsel with a computer-readable list of the names, addresses, telephone numbers, and employment dates of potential opt-in plaintiffs who worked as salad makers or dishwashers during the certified period.

Disposition

The court's order states that Plaintiffs' motion for conditional certification and court-authorized notice was granted in part and denied in part. Conditional certification and notice were authorized only for salad makers and dishwashers employed from December 26, 2015, to the present. The order did not decide whether the defendants actually violated the FLSA or New York Labor Law.