Emeterio v. A & P Restaurant Corp.

Background

Francisco Emeterio brought claims under the Fair Labor Standards Act (FLSA), the federal wage-and-hour law, and the New York Labor Law against A & P Restaurant Corp., which does business as “Remedy Diner”; Modern Hospitality Group Corp., which does business as “Jax Inn Diner”; Anastasio Giannopoulous; and Peter Giannopoulous. Emeterio moved for conditional certification of an FLSA collective action and for approval of a notice to potential participants.

Court’s analysis

At the conditional-certification stage, the court applied the requirement that the plaintiff make a “modest factual showing” that he and potential opt-in plaintiffs were affected by a common policy or plan that violated the law. The court stated that Emeterio met that low burden. Based on Emeterio’s affidavit and Peter Giannopolous’s deposition, the court found a plausible basis to treat Remedy Diner and Jax Inn Diner as a single integrated enterprise for purposes of the FLSA. The court also found common factual and legal issues involving wage-and-hour policies applied to tipped and non-tipped employees at both restaurants.

Rulings and procedures

The court granted Emeterio’s motion for conditional certification of an FLSA collective action. It approved the proposed collective-action notice and “consent to sue” form, including a 60-day opt-in period.

The court denied, without prejudice, Emeterio’s categorical request for equitable tolling of the statute of limitations. The court stated that an individual opt-in plaintiff could later apply for tolling based on an individualized showing that tolling was warranted.

Because the preliminary certification concerned only the FLSA, the court denied Emeterio’s request to send notice to all non-exempt employees employed by the defendants during the six years before the complaint was filed. Instead, notice was ordered for current and former non-exempt employees—including the listed kitchen, counter, delivery, cleaning, and serving positions—who were employed by the defendants during the three years before the complaint was filed. The notice was to include a Spanish translation.

The defendants were ordered to post notices in English and Spanish in a conspicuous non-public location at their place of business. Within ten days, they were ordered to provide, in Excel format, the covered employees’ names, titles, compensation rates, employment dates, last known mailing addresses, email addresses, and known telephone numbers. Social Security numbers were not to be provided initially; if a notice was returned as undeliverable, the defendants were to provide that individual’s Social Security number to Emeterio’s counsel solely for a skip-trace to find a new mailing address. The order required destruction of those numbers and related files after the skip-trace, followed by written certification to the court within fourteen days after the opt-in period ended.

The parties were also ordered to file a joint letter within one week addressing whether the order required changes to pending deadlines. The clerk was directed to terminate the docket entry for the motion.