Filho v. OTG Management, LLC

Background

Dafinis Filho, Raquel Ernest, and Chantel Lynch sued their former employer, OTG Management, LLC, alleging violations of the Fair Labor Standards Act (FLSA), the New Jersey Wage and Hour Law, and the New York Labor Law. The FLSA claims alleged that OTG improperly used the tipped minimum-wage credit, failed to notify workers about that practice, distributed tips to workers who did not customarily receive them, required substantial non-tipped work, and failed to pay for all hours worked and overtime.

Filho, Ernest, and Lynch worked as servers, bartenders, or training captains at OTG locations at Newark Liberty Airport (EWR) and John F. Kennedy Airport (JFK). Supporting declarations also described work at LaGuardia Airport (LGA). Plaintiffs alleged that OTG used centralized hiring, training, payroll, and human-resources practices and that tipped workers at its locations performed similar duties and experienced similar pay practices.

Conditional certification

Plaintiffs moved under Section 216(b) of the FLSA for conditional certification of a collective action and authorization to notify potential opt-in plaintiffs. At this preliminary stage, the court applies a relatively low standard and asks whether plaintiffs make a modest factual showing that they and other workers were affected by a common policy or plan. The court does not decide factual disputes, assess credibility, or resolve the ultimate merits of the wage claims.

The court found that the declarations and job descriptions supported an inference that OTG centrally controlled tipped workers and that workers at EWR, JFK, and LGA were similarly situated. The evidence described alleged failures to provide tip-credit notice, requirements to perform substantial non-tipped work while receiving the tipped wage, and off-the-clock work, including work during supposed breaks and after scheduled shifts. The evidence also supported potential overtime violations.

The court rejected nationwide notice because plaintiffs presented no direct employee testimony about working conditions at OTG airports other than EWR, JFK, and LGA. Evidence of common ownership, centralized control, standardized job descriptions, and possible employee transfers was not enough to show a uniform unlawful policy across all locations.

Arbitration agreements

The court authorized notice to potential collective members even if they may have signed arbitration agreements. It explained that arbitration issues could be addressed after notice and after workers chose to join the case. The order preserved OTG’s ability to seek dismissal, before the second stage of the collective-action process, of claims by opt-in plaintiffs who have valid arbitration agreements.

Notice and related orders

The court approved plaintiffs’ second proposed notice with one required addition explaining that the court had not decided whether any arbitration agreement was valid and that such an agreement could later affect participation. The court denied OTG’s request to identify defense counsel in the notice, denied its remaining requests for additional changes, and directed plaintiffs to submit a final notice.

Notice could be sent by U.S. mail, email, and Facebook, and potential plaintiffs could access the notice and submit consent forms through a website, by mail, or by email. The court also approved including notice in current workers’ pay envelopes, authorized one reminder mailing during the 60-day notice period, and clarified that notice would not be posted in OTG restaurants.

OTG was ordered to provide names, last known addresses, telephone numbers, available email addresses, and employment dates and locations for potential opt-in plaintiffs who worked at an OTG establishment at EWR, JFK, or LGA within the three years before the complaint. Plaintiffs could request the last four digits of Social Security numbers when notices were returned as undeliverable.

Disposition

The court granted in part plaintiffs’ motion for conditional certification at ECF No. 21. It conditionally certified a collective consisting of servers, bartenders, and other tipped employees supervised or managed by OTG’s agents and operating out of EWR, JFK, or LGA between September 5, 2016, and the present. The court authorized notice on those terms and ordered OTG to provide the approved contact information within 30 days. The order was a preliminary case-management ruling and did not decide the ultimate wage-law claims.