661 F.Supp.3d 751
S.D. Ohio2023Background
- Plaintiff Kayla Pender, a former Buffalo Wild Wings server, sued entity and franchisee defendants under the FLSA and Ohio law alleging improper use of the tip credit, unpaid minimum wages, unpaid work-related expenses, and performance of substantial non‑tipped work.
- Proposed FLSA collective: servers at defendants’ Ohio and West Virginia Buffalo Wild Wings locations during the three years before suit who received a subminimum cash wage; proposed OWA collective: servers and bartenders at Ohio locations during that period.
- Plaintiff submitted affidavits (herself and another employee), job postings, and position descriptions indicating uniform job duties and pay practices across locations; parties had a tolling agreement effective Nov. 11, 2021.
- Court evaluated Plaintiff’s motion for conditional certification under the lenient, first‑step FLSA standard (modest factual showing that putative members are similarly situated).
- Court granted conditional certification, tolled collective claims back to Nov. 11, 2018 (per tolling agreement), and authorized supervised notice with conditions: mail and email notice, a neutral reminder halfway through notice period, a website limited to court‑authorized content with electronic opt‑in, a 90‑day opt‑in period, and production of member contact/employment data within 14 days.
- Court ordered revisions to the proposed notice (replace acronym with full name, state claims are alleged and OWA coverage for Ohio workers, attach representation agreement, add a judicial‑neutral disclaimer, references to right to retain counsel, and add defendant nonretaliation language).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conditional certification: are plaintiffs "similarly situated" for notice? | Pender argued her affidavits, job postings, and common policies show a uniform pay scheme and practices across locations supporting a modest factual showing. | Defendants argued plaintiff lacks personal knowledge of other locations and the proposed multi‑location collective is overbroad. | Court granted conditional certification under the lenient first‑step showing; credibility and factual disputes reserved for later. |
| Geographic/temporal scope of collectives (multi‑state and three‑year period) | Pender sought multi‑location (OH & WV) collective and three‑year look‑back (tolled to Nov. 11, 2018). | Defendants urged limiting to the single location where plaintiff worked. | Court accepted multi‑location collective based on affidavits and uniform job postings, tolled claims per agreement (Nov. 11, 2018–Apr. 19, 2022); decertification possible after discovery. |
| Notice methods and website/portal | Pender requested first‑class mail, email, a reminder notice, a 90‑day opt‑in, and a dedicated website with electronic consent. | Defendants objected to some content and website linkage to plaintiffs’ counsel site; contested 90‑day length as potentially excessive. | Court approved mail and email, allowed a neutral reminder (with court‑neutral language), allowed a restricted website/portal with separate URL, and granted a 90‑day opt‑in period. |
| Production of contact info and notice content | Pender requested defendants produce names, addresses, phones, emails, employment dates, locations, and positions within 14 days; proposed notice text as submitted. | Defendants suggested edits to clarify allegations, include OWA references, attach retainer, and add certain neutralizing language. | Court ordered production within 14 days and required Plaintiff to revise notice to implement specified edits (full franchise name, clarify alleged claims, OWA reference for Ohio workers, attach representation agreement, add judicial disclaimer, right‑to‑counsel references, and defendant nonretaliation language). |
Key Cases Cited
- Comer v. Wal‑Mart Stores, Inc., 454 F.3d 544 (6th Cir. 2006) (establishes the two‑step FLSA collective certification framework and the lenient first‑step standard)
- O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567 (6th Cir. 2009) (explains "similarly situated" and that a single FLSA‑violating policy can justify collective treatment)
- Hoffmann‑La Roche Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (district court authority to supervise notice in collective actions)
- Castillo v. Morales, 302 F.R.D. 480 (S.D. Ohio 2014) (conditionally certified multi‑location restaurant collective on similar evidence)
- Hamm v. S. Ohio Med. Ctr., 275 F. Supp. 3d 863 (S.D. Ohio 2017) (discusses limits on resolving merits and credibility at conditional certification stage)
- Lewis v. Huntington Nat'l Bank, 789 F. Supp. 2d 863 (S.D. Ohio 2011) (explains that conditional certification requires showing positions are similar, not identical)