Imbarrato v. Banta Management Services, Inc.

Background

Patrick Imbarrato and Nick Praino, former servers at the defendants’ Buffalo Wild Wings restaurant in Middletown, New York, brought claims under the Fair Labor Standards Act (FLSA) and New York Labor Law. They alleged that the defendants applied a tip credit while requiring tipped employees to perform excessive non-tip-producing side work; failed to pay proper minimum and overtime wages; failed to pay certain New York spread-of-hours and call-in pay; and failed to provide required wage notices and statements. The plaintiffs sought to represent other tipped employees who worked at any of the defendants’ three franchised Buffalo Wild Wings restaurants.

The plaintiffs asked the court to conditionally certify an FLSA collective action, approve notices to potential participants, and require expedited discovery. Conditional certification is an early-stage decision allowing notice to be sent to workers who may choose to join an FLSA lawsuit. It does not decide the ultimate merits of the wage claims.

Conditional Certification

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 participants were victims of a common policy or plan that violated the law. The court does not weigh the merits, resolve factual disputes, or decide credibility at this stage.

The court found that the plaintiffs met this preliminary standard. Their declarations described the non-tipped tasks employees were required to perform, including the types and timing of the work. The court also found an adequate preliminary showing that the alleged practices were common among the defendants’ three Buffalo Wild Wings locations. The court therefore granted conditional class certification.

Notice

The court allowed notice to potential opt-in plaintiffs. It accepted the plaintiffs’ revised proposed notice as modified and approved notice describing claims involving minimum wages, overtime pay, and other wages. The court found that the notice made clear that joining the lawsuit was voluntary and that potential participants could obtain their own lawyers.

The court allowed a three-year notice period. It also allowed equitable tolling—pausing the applicable time limit for potential opt-in plaintiffs—until the plaintiffs sent the notice. The court cited the significant delay in ruling on the motion and found a particularly strong basis for tolling in this case.

The court authorized notice by mail, email, and text message, and approved posting the notice at the defendants’ three franchised restaurants: BWW Middletown, BWW Wappingers Falls, and BWW Oneonta. The notice was authorized for tipped employees employed by the defendants from September 26, 2013, to the present.

Discovery

The plaintiffs sought computer-readable lists containing potential participants’ names, addresses, Social Security numbers, telephone numbers, email addresses, work locations, and employment dates. Because the court authorized email and text-message notice, it found that telephone numbers, email addresses, work locations, and employment dates were needed for notification.

The court granted the request for disclosure of names, last known addresses, telephone numbers, email addresses, work locations, and employment dates for tipped employees at the three locations from September 26, 2013, to the present. The court denied the request for Social Security numbers at that stage, while stating that the plaintiffs could ask the court to reconsider if many notices were returned as undeliverable.

Disposition

The court’s conclusion states that the plaintiffs’ motion for conditional certification of the FLSA collective action, approval of the proposed notices, and discovery was granted in part and denied in part. The parties were directed to contact Magistrate Judge Judith C. McCarthy within seven days regarding expedited production of discovery. The court did not decide whether the defendants ultimately violated the FLSA or New York Labor Law.