Barrera v. Forlini's Restaurant, Inc.

Background

Manuel Barrera, a former waiter at the now-closed Forlini’s Restaurant, sued Forlini’s Restaurant, Inc., Joseph Forlini, and Derek Forlini. He alleged unpaid minimum wages resulting from an improper tip credit and other violations of federal, state, and local wage-and-hour laws.

Barrera asked the court to conditionally certify a Fair Labor Standards Act collective. He proposed including all current and former non-exempt front-of-house and back-of-house employees who had worked for the defendants at Forlini’s Restaurant within the previous six years. The defendants opposed the motion.

Legal Standard

The Fair Labor Standards Act allows employees to bring wage claims for themselves and other employees who are similarly situated. At the notice stage, a plaintiff must make a modest factual showing that the plaintiff and potential additional participants were affected by a common policy or plan that violated the law. The court does not decide at that stage whether an actual legal violation occurred.

Court’s Analysis

The court concluded that Barrera had not met the notice-stage burden. Barrera relied only on his own declaration, which by itself was not necessarily insufficient. But the declaration did not provide enough factual detail to show that other Forlini’s employees were subject to a common unlawful wage policy during the relevant period.

Barrera said he had spoken with at least nine coworkers about the defendants’ wage policies and that two coworkers complained about missing overtime pay. He did not identify when those conversations occurred. Because Barrera said he began working at Forlini’s in 2001, the court could not determine whether the conversations took place during the three years before the restaurant closed, a period potentially relevant under the Fair Labor Standards Act. The court also noted that the declaration’s descriptions were too limited to establish that a common policy affected all of the different job categories included in the proposed collective.

The court noted problems with the translation of Barrera’s declaration, including the absence of information about who translated it and that person’s language ability. The court said striking the declaration could have been appropriate but did not strike it because the declaration was inadequate to support the motion. The court also did not need to consider the defendants’ declarations disputing Barrera’s account.

Ruling and Other Orders

Judge Valerie Caproni denied Barrera’s motion for conditional certification and directed the clerk to terminate the motion at Docket 30. The court did not address the parties’ arguments about proposed notice, the scope and timing of discovery, or equitable tolling. The opinion states that discovery was no longer stayed, set November 8, 2022, as the deadline for fact discovery, set December 23, 2022, as the deadline for expert discovery, and scheduled a pretrial conference for November 18, 2023.