117 F. Supp. 3d 516
S.D.N.Y.2015Background
- Six former entertainers at Cheetahs Gentlemen’s Club sued their employers under the FLSA and New York Labor Law alleging common wage-and-hour practices (no hourly pay, no overtime, house fees, tip-outs, retention of a portion of token tips, uniform expenses) covering periods from 2007–2013.
- Plaintiffs sought conditional collective-action certification under 29 U.S.C. § 216(b) and court-authorized notice to all individuals who worked at Cheetahs as entertainers; two related cases were consolidated.
- Plaintiffs submitted six declarations describing consistent practices (house fees, tip-outs to non-customer-facing staff, retention of 10% on club-issued tokens, uniform rules and costs, scheduling rules and fines) and reporting conversations with other dancers corroborating common policies.
- Defendants opposed conditional certification, arguing plaintiffs’ declarations were conclusory, varied dancer contracts (including arbitration clauses) undermined similarity, discovery was needed, and some plaintiffs were not representative or even employees.
- The court held plaintiffs met the modest factual showing required for conditional certification and granted conditional collective-action approval; it denied equitable tolling of the FLSA statute of limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to conditionally certify an FLSA collective | Plaintiffs: six corroborating declarations show common unlawful compensation policies at Cheetahs | Defendants: declarations are conclusory, raise factual disputes, and merit discovery before notice | Granted — plaintiffs made the requisite modest factual showing for conditional certification |
| Whether plaintiffs are "similarly situated" to other entertainers | Plaintiffs: personal observations + conversations show common policies (tips, house fees, tip-outs, token retention, uniforms) | Defendants: contractual and factual variations among dancers defeat similarity | Court: similarities as to challenged policies suffice at the preliminary stage; factual variances go to second-stage review |
| Relevance of arbitration agreements and varied dancer contracts | Plaintiffs: not a bar to issuing notice; merits-based | Defendants: differing contracts (including arbitration/class-waiver clauses) defeat collective action | Court: arbitration clauses and contract differences are merit issues and irrelevant at conditional-certification stage |
| Request for equitable tolling of FLSA statute of limitations | Plaintiffs: toll from motion filing to notice issuance to avoid prejudice | Defendants: not addressed in detail; oppose tolling | Denied — plaintiffs failed to show extraordinary circumstances; delay was not sufficiently exceptional |
Key Cases Cited
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (district courts may facilitate notice under 29 U.S.C. § 216(b))
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (describing two-step conditional certification process and standard for modest factual showing)
- Glatt v. Fox Searchlight Pictures, 791 F.3d 376 (2d Cir. 2015) (discussing step-one/step-two framework for FLSA collective actions)
- Reich v. N.Y.C. Transit Auth., 45 F.3d 646 (2d Cir. 1995) (FLSA’s purpose to guarantee compensation for all covered work)