Martinenko v. 212 Steakhouse Inc.

Background

Nino Martinenko sued 212 Steakhouse Inc. and Nikolay Volper under the Fair Labor Standards Act (FLSA) and New York law. She alleged that she worked more than 40 hours per week as a server but was paid straight time rather than the required overtime rate. She also alleged minimum-wage, tip-credit notice, and New York spread-of-hours violations.

Martinenko asked the court to conditionally certify an FLSA collective action covering service employees—servers, runners, bussers, and bartenders—employed by Defendants at 212 Steakhouse on or after January 20, 2019. Conditional certification is an early-stage decision allowing potential participants to receive notice and choose whether to join an FLSA lawsuit. It is not a final decision that the workers are actually similarly situated or that Defendants violated the law.

Conditional Certification

The court applied the first step of the Second Circuit’s two-step approach. At this stage, the plaintiff had to make a modest factual showing that she and potential opt-in employees were victims of a common policy or plan that violated the FLSA.

The court found that Martinenko met that burden. Her declaration and pay records showed that she worked more than 40 hours in several weeks and was paid $10 per hour plus tips without time-and-a-half overtime pay. She also identified other service employees whose pay records allegedly showed the same treatment. The court concluded that this evidence was enough, at this stage, to show a common policy of denying overtime compensation.

The court rejected Defendants’ arguments that Martinenko relied only on unsupported allegations, lacked proof that other employees were not paid additional cash, had not shown that Volper knew about the alleged violations, and could seek notice only for servers. The court stated that it would not resolve factual disputes or decide the merits at the conditional-certification stage. It also found that employees with different service positions could still be similarly situated if they were subject to the same alleged overtime policy.

Notice and Notice Plan

The court authorized notice by first-class mail, email, and text message to service employees employed at 212 Steakhouse on or after January 20, 2019. Potential participants would have 60 days to submit consent forms. The notice was required to explain that Defendants denied the allegations and that the court had not decided who was right.

The court rejected Defendants’ objections seeking additional information about defenses, contact information for defense counsel, a shorter opt-in period, and a two-year rather than three-year notice period. It also concluded that the notice already explained that opt-in plaintiffs might have to participate in discovery, depositions, or trial.

The court required two revisions. First, the notice had to state that an opt-in plaintiff was designating Plaintiff’s counsel as the representative, not Martinenko personally. Second, joining through the FLSA consent form applied only to the FLSA claims, not to the New York Labor Law claims or other claims. The court stated that non-FLSA claims would require a separate class-certification motion or a motion to join under Federal Rule of Civil Procedure 20.

The court permitted consent forms to be sent directly to Plaintiff’s counsel, but ordered counsel to file them on the electronic docket on the day received, in redacted form if necessary.

Discovery

The court also granted Martinenko’s request for the names, last known addresses, phone numbers, email addresses, employment dates, and positions of potential members of the proposed collective. Defendants were ordered to provide that information within seven days of the order.

Disposition

Judge Lewis J. Liman granted the motion for conditional certification under FLSA Section 216(b), authorized Plaintiff to disseminate revised notice, and ordered the requested discovery. Plaintiff was required to disseminate notice within fourteen days, and Plaintiff’s counsel was ordered to file consent forms on the electronic docket when received. The order did not decide whether Defendants actually violated the FLSA or New York law.