Hart v. Barbeque Integrated, Inc.
Hart v. Barbeque Integrated, Inc.
Opinion of the Court
PATRICK MICHAEL DUFFY, United States District Judge *764This matter is before the Court on Defendant's motion to dismiss (ECF No. 30) and Plaintiff's motion for conditional certification (ECF No. 33). For the reasons set forth herein, Defendant's motion to dismiss is denied and Plaintiff's motion for conditional certification is granted.
BACKGROUND
On January 24, 2017, Plaintiff commenced this action on behalf of herself and all others similarly situated, seeking unpaid minimum wages pursuant to the Fair Labor Standards Act ("FLSA") and the South Carolina Payment of Wages Act ("SCPWA"). Plaintiff and the putative class seek recovery from Defendant, who owns and operates sixty-seven restaurants nationwide known as Smokey Bones.
Plaintiff primarily alleges that Defendant, while taking advantage of the FLSA's tip credit provision, required her and the putative class members to perform non-tipped side work that was not related to their tipped occupations as servers and bartenders, as well as requiring that Plaintiff and the putative class members spend more than twenty percent of their shifts performing non-tipped side work that was related to their tipped occupations. Additionally, Plaintiff alleges that she and the putative class members were required to pay Defendant out of their tips when a customer walked out, were required to purchase additional Smokey Bones t-shirts with their tips, and were never notified that Smokey Bones was paying them less than minimum wage pursuant to the FLSA's tip-credit provision. Plaintiff alleges that all three of those requirements violate the tip-credit provision. See
PROCEDURAL HISTORY
Defendant filed its motion to dismiss on May 31, 2017. Plaintiff responded on June 14, and Defendant replied on August 31. Plaintiff filed her motion for conditional certification on June 2. Defendant responded on June 30, and Plaintiff replied on July 7. Accordingly, these matters are now ripe for consideration.
Defendant's Motion to Dismiss
Defendant moves to dismiss count one of Plaintiff's complaint on the grounds that Plaintiff has failed to allege that she earned less than minimum wage during a particular workweek, that the twenty-percent rule does not support a cause of action, and that Plaintiff's allegations do not violate the FLSA's dual-jobs regulation. The Court will address each argument in turn.
LEGAL STANDARD
A motion to dismiss pursuant Rule 12(b)(6) for failure to state a claim upon which relief can be granted "challenges the legal sufficiency of a complaint." Francis v. Giacomelli ,
*765In Bell Atlantic Corp. v. Twombly ,
When ruling on a Rule 12(b)(6) motion to dismiss, the trial judge must accept as true all of the facts alleged in the plaintiff's complaint and construe all reasonable inferences in favor of the plaintiff. E.g. , E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. ,
ANALYSIS
Defendant first argues that Plaintiff's failure to allege that she earned less than minimum wage in any particular workweek is fatal to count one of her complaint. Citing this Court's decision in Schmidt v. Charleston Collision Holdings, LLC , Defendant argues that so long as Plaintiff's average wage per hour worked during the workweek is above minimum wage, there is no violation of the FLSA. No. 2:14-cv-1094-PMD,
Plaintiff disagrees, relying primarily on Romero v. Top-Tier Colorado LLC ,
Defendant recently provided the Court with notice of the Ninth Circuit's recent decision in *767Marsh v. J. Alexander's LLC ,
The Court respectfully declines to follow Marsh and instead adopts the majority approach endorsed in Irvine , Romero , and Fast v. Applebee's International, Inc. ,
Plaintiff alleges that Defendant required tipped workers to "spend a substantial amount of time performing non-tip producing work including, but not limited to, general cleaning of the restaurant, rinsing, washing, and rolling silverware, and making sauces and refilling condiments." (Am. Compl., ECF No. 10, at ¶ 33.) Plaintiff also alleges that "Defendant requires tipped workers to perform non-tipped work before the restaurant is open or after the restaurant has closed and customers have left." (Id. at ¶ 35.) "For instance, Defendant typically requires tipped workers to arrive at least an hour prior to serving their first customer and to stay at work approximately one and a half to two or more hours after serving their last customer." (Id. at ¶ 36.) Plaintiff then provided further examples of non-tipped work she and the putative class members were required to perform. Those examples include:
(1) sweeping floors; (2) taking out trash and cleaning trash receptacle areas; (3) restocking to-go boxes and other items; (4) filling bottles and pans with dressings and labeling them; (5) cleaning tables, chairs, and booths; (6) cleaning baseboards and lamps; (7) scrubbing walls and drains; (8) making sauces following *768restaurant recipes; (9) cleaning out the keg room; (10) cleaning and restocking caddies; (11) rinsing dirty silverware and running it through the dishwasher; (12) polishing and rolling silverware; (13) removing and replacing rechargeable batteries from tabletop customer computers; (14) prepping and garnishing food and desserts before serving to customers; (15) deep cleaning light fixtures, booths, and woodwork with Murphy's Oil; (16) restocking mini fridges with sour cream, cheese, dressing, etc.; (17) scrubbing floors in restaurant with a deck brush; and (18) breaking down and cleaning the tea/coffee and soda stations.
(Id. at ¶ 42.) Finally, Plaintiff alleges that "[t]he non-tipped work which Plaintiff and others similarly situated were required to perform exceeded twenty percent (20%) of their time at work." (Id. at ¶ 44.)
This Court has previously rejected Defendant's arguments regarding the viability of causes of action based on the FOH's twenty-percent rule and the dual-jobs regulation. See Irvine ,
Plaintiff's Motion for Conditional Certification
LEGAL STANDARD
Under the FLSA, employees may institute a collective action against their employer on behalf of themselves and similarly situated employees. The FLSA's collective action provision states that:
[a]n action to recover [unpaid overtime compensation] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
*769Purdham v. Fairfax Cty. Pub. Sch. ,
The first step in this process, which is the subject of the instant Motion, is the "notice," or "conditional certification," stage. Purdham ,
Second, after the court has conditionally certified the class, the potential class members have been identified and notified, and discovery has been completed, "a defendant may then move to decertify the collective action, pointing to a more developed record to support its contention that the plaintiffs are not similarly situated *770to the extent that a collective action would be the appropriate vehicle for relief." Pelczynski ,
ANALYSIS
Plaintiff requests that the Court enter an order: (1) conditionally certifying a class of all Smokey Bones servers and bartenders from January 24, 2014 to present; (2) requiring Defendant to produce the names, dates of employment, cell phone numbers, home phone numbers, e-mail addresses, last known home addresses, and the last four digits of the putative class members' social security numbers in an Excel spreadsheet within fourteen days; (3) authorizing the mailing, e-mailing, and posting of the proposed notice and consent forms to putative class members; (4) authorizing a follow-up e-mail notice reminder to the putative class members who did not respond after thirty days; and (5) setting the opt-in period as ninety days. The Court will address each request in turn, along with Defendant's request to meet and confer with Plaintiff's counsel regarding the terms of the proposed notice.
I. Conditional Certification
Plaintiff moves to conditionally certify a nationwide class of servers and bartenders who worked at any of the sixty-seven Smokey Bones locations across the country. Defendant objects to the conditional certification of the proposed class, as well as to the breadth of the proposed class in the event that a class is conditionally certified.
Plaintiff argues that the proposed class is similarly situated because they were all subject to the same policies and duties. According to Plaintiff, Smokey Bones is not a franchise and it maintains uniform policies across each of its sixty-seven restaurants. As support for this assertion, Plaintiff points to the corporate nationwide job descriptions for servers and bartenders. In those job descriptions, Smokey Bones lays out the job duties for its server and bartender positions nationwide. Those job duties include descriptions of the side work that servers and bartenders are expected to perform. (See Am. Decl. Kevin Journiette, Ex. B, Smokey Bones Corp. Job Description Server Positions, ECF No. 39-1, at 12-13; Pl.'s Mot. Certify Class, Ex. D, Decl. Victoria Reaves, ECF No. 33-5, at 12-13.) Plaintiff asserts that those nationwide job descriptions, coupled with the declarations she has submitted from servers and bartenders at three different Smokey Bones restaurants in three different states, are more than enough to demonstrate that all Smokey Bones servers and bartenders are sufficiently similarly situated to surmount the low bar of conditional certification.
Defendant disagrees, and argues that conditional certification of this action is neither warranted nor prudent. Defendant's primary argument against conditional certification is the same as the argument it made in its motion to dismiss-that Plaintiff cannot allege a violation of the FLSA because Plaintiff never made less than minimum wage over the course *771of any workweek. Because the Court has already addressed that argument above, it does not rehash it here. However, Defendant also argues that the declarations of a smattering of employees from three Smokey Bones locations are insufficient to justify conditional certification of a nationwide class of servers and bartenders. Moreover, Defendant argues that a nationwide class would be untenable as a result of the individualized inquiries that Defendant contends will be necessary.
The Court concludes that conditional certification of a nationwide class of servers and bartenders is warranted in this case. Plaintiff has produced evidence of nationwide Smokey Bones job descriptions for servers and bartenders that on their face require side work. There is no doubt that requiring side work does not necessarily violate the FLSA. However, Plaintiff has made a sufficient showing that Smokey Bones' nationwide side work policy potentially caused FLSA violations for all Smokey Bones servers and bartenders. Plaintiff and the other opt-ins' declarations state that at least three Smokey Bones locations in three different states all implemented the side work discussed in the server and bartender descriptions in such a way as to require violations of the dual-jobs regulation and/or the FOH's twenty-percent rule. The Court recognizes that Defendant has produced declarations from a number of Smokey Bones employees at various other locations throughout the country that dispute Plaintiff's claims. However, the Court does not make credibility determinations at the conditional certification stage. Curtis v. Time Warner Entertainment-Advance/Newhouse Partnership , No. 3:12-cv-2370-JFA,
The Court also recognizes, and shares to some extent, Defendant's concern about the manageability of the proposed class and the possibility that individual determinations will predominate. Nonetheless, because Plaintiff has provided evidence of Defendant's corporate side work policy by way of the server and bartender job descriptions, the Court is skeptical that individualized determinations will predominate after the class members are identified. Regardless, the answer to that question will be far clearer after discovery is complete. Accordingly, the Court conditionally certifies Plaintiff's proposed class of servers and bartenders as it pertains to violations of the dual-jobs regulation and the FOH's twenty-percent rule.
*772II. Class Member Information
Plaintiff seeks the names, dates of employment, cell phone numbers, home phone numbers, e-mail addresses, last known home addresses, and the last four digits of the putative class members' social security numbers. Plaintiff requests that Defendant produce that information in an Excel spreadsheet within fourteen days of the date of this Order. District courts have taken conflicting positions and approaches as to what information regarding potential plaintiffs may or must be disclosed to named plaintiffs at the notice stage of FLSA actions.
III. Additional Notice Parameters
As for the methods of notice, the timeline for opting-in, and the proposed follow-up e-mail, the Court grants Defendant's request to meet and confer. In order to allow this conference without prejudicing the potential opt-ins, the Court will equitably toll the statute of limitations until the terms of the notice are agreed upon. See Cruz v. Maypa ,
CONCLUSION
For the foregoing reasons, it is ORDERED that Defendant's motion to dismiss is DENIED , and that Plaintiff's Motion for Conditional Certification is GRANTED subject to the restrictions discussed above.
AND IT IS SO ORDERED .
The Court notes that its decision in Schmidt did not involve the FLSA's tip-credit provision.
Section 30d00(e) of the Department of Labor's FOH " 'provides that if a tipped employee spends a substantial amount of time (defined as more than 20 percent) performing related but nontipped work,...then the employer may not take the tip credit for the amount of time the employee spends performing those duties.' " Romero ,
The Department of Labor has stated " 'that an employee may hold more than one job for the same employer, one which generates tips and one which does not, and the employee is entitled to the full minimum wage rate while performing the job that does not generate tips.' " Romero ,
The relevant regulation is the FLSA's dual-jobs regulation. See
Although the Fourth Circuit has not yet enunciated a test for conditional certification of collective actions, district courts in the Fourth Circuit, including this Court, typically follow the two-stage, or two-step, approach when deciding whether named plaintiffs are similarly situated to potential plaintiffs. E.g. , LaFleur ,
The Court declines to conditionally certify Plaintiff's other claims, namely Defendant's failure to notify the putative class members that it was paying them a reduced minimum wage pursuant to the tip-credit provision, Defendant's purported requirement that Plaintiff and the putative class members use their tips to reimburse the restaurant for customer walk-outs, and Defendant's purported requirement that Plaintiff and the putative class members pay for additional Smokey Bones t-shirts out of their tips. Unlike Plaintiff's side work claims, these other claims are individual to Plaintiff, and Plaintiff has not shown that those claims arose out of a corporate policy. Specifically, Plaintiff and the other declarants allege that they were not properly notified that Smokey Bones was using the tip-credit provision. Defendant has provided evidence that it hung Department of Labor posters in each of its locations, that it orally told Plaintiff and all other employees that they were being paid using the tip-credit provision, and that the tip-credit provision was explained in its employee handbook. Next, Plaintiff has alleged that she was required to compensate the restaurant when a customer walked out without paying. However, only Plaintiff makes such an allegation. Finally, Plaintiff alleges that she was required to pay for additional Smokey Bones t-shirts with her tips. Here, only two of the five employees who provided declarations stated that they themselves actually purchased additional Smokey Bones shirts with their tips. The Court concludes that each of these claims are insufficient to justify conditional certification of a nationwide class on those claims because Plaintiff has not shown that the other nationwide servers and bartenders are similarly situated. Accordingly, those claims must proceed on an individual basis.
Compare Velasquez v. Digital Page, Inc. , No. 11-3892 LDW AKT,
Reference
- Full Case Name
- Jennifer HART, on behalf of herself and all others similarly situated v. BARBEQUE INTEGRATED, INC. d/b/a Smokey Bones
- Cited By
- 12 cases
- Status
- Published