Bittencourt v. Ferrara Bakery & Café Inc.
2015 U.S. Dist. LEXIS 134386
S.D.N.Y.2015Background
- Plaintiff Jucialaine Bittencourt worked as a waitress for defendants (Ferrara Bakery & Café, Ferrara Foods & Confections, and individuals) from Sept. 2005 to Dec. 2014 and alleges minimum-wage and related NYLL/FLSA violations.
- Plaintiff alleges she was not paid an hourly wage until April 2012 and thereafter was paid $5.00 (or $4.65 on some paystubs); she also alleges defendants did not provide required tip-credit notice and did not track tips.
- A former waiter, Czako Zsolt, submitted a corroborating affidavit saying he was paid $4.65/hour and saw other waiters with similar paystubs.
- Plaintiff moved for conditional (§ 216(b)) collective-action certification for all nonexempt hourly employees since three years before the complaint, approval of notice/consent forms, workplace posting, and a 90-day opt-in period.
- Defendants opposed broad certification and contested notice language, argued plaintiff failed to show an unlawful common policy and that the proposed class was overbroad; they requested a shorter opt-in period and other notice modifications.
- The court granted conditional certification only for waitstaff (not all nonexempt employees), approved a modified notice (English and Spanish), required posting and mailing, ordered production of waitstaff names/addresses/employment dates since Jan. 22, 2012, and set a 60-day opt-in period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conditional certification ("similarly situated") | Bittencourt and Zsolt affidavits + paystubs show a common unlawful policy of underpaying waitstaff and failing to provide tip-credit notice | Evidence is conclusory and insufficient; at most certification should be limited to waitstaff | Granted in part: plaintiffs made the modest factual showing for waitstaff; collective certified only for waitstaff |
| Scope of proposed class | All nonexempt hourly employees since three years before complaint | Class is overbroad; different employee categories had different pay structures and claims | Denied as to non-waitstaff categories; insufficient factual nexus for busboys, baristas (except baristas earn above min wage), hosts, kitchen staff, etc. |
| Notice content (language and inclusions) | Proposed notice adequate; should include anti-retaliation, class description, contact info; translated to Spanish | Seek additional defensive language, costs warning, and defense counsel contact info included | Court approved most of plaintiff's notice with modifications: rejected costs language; added defense counsel contact info in separate section; anti-retaliation language permitted |
| Opt-in period and limitations period for notice | Requested 90 days opt-in; notice window dated three years prior to complaint | Requested 45 days opt-in and that notice be tied to date of order mailing | Court ordered 60-day opt-in and authorized notice to employees employed within three years of filing the complaint (to account for potential tolling) |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (endorses two-step FLSA collective-certification framework and "modest factual showing" standard)
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (district courts may authorize notice to potential collective action members)
- Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303 (S.D.N.Y. 1998) (discusses requirement that plaintiffs show a factual nexus for collective treatment)
- Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317 (S.D.N.Y. 2007) (plaintiffs may rely on pleadings plus affidavits in conditional-certification showing)
- Garcia v. Spectrum of Creations Inc., 102 F. Supp. 3d 541 (S.D.N.Y. 2015) (two corroborating affidavits can suffice to conditionally certify a limited collective action)