MEMORANDUM
Thе plaintiffs have filed a Motion for Approval of 29 U.S.C. § 216(b) Notice and Consent Forms and to Order Disclosure of Current and Former Tipped Employees (Conditional Certification) of Defendants Logan’s Roadhouse Restaurants (“Motion for Conditional Certification”) (Docket No. 36), to which the defendants have filed a Response in opposition (Docket..No. 93), and the plaintiffs have filed a Reply (Docket No. 101). The defendants have also filed a document entitled “Objections to Evidence Submitted in Support of the Motion for Conditional Certification.” (Docket No. 109.) . For the following reasons, the Motion for Conditional Certification will be granted in part and denied in part.
BACKGROUND
This proposed collective action, brought under the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., involves claims that the defendants failed to pay wages to their “tipped employees”
LRI restaurants employ, tipped employees whose primary duties are to take food and beverage orders and serve such items to customers. Plaintiffs Carey Bradford and Cody Bolen are residents of Tennessee and were employed by LRI as tipped employees during the three years prior to the filing of this action. The Complaint filed by Bradford and Bolen on behalf of all other similarly situated current and former tipped employees pf the defendants during the relevant time period (“Complaint”) alleges that LRI had a centralized plan, policy, or practice , of management and budgeting that, among other things, encouraged or required its restaurant managers to imprpperly compensate tipped employees in order to meet or stay below budgeted labor costs.
(a) requiring tipped employees to work in non-tip producing jobs while clocked in as tipped employees in LRI’s electronic timekeeping system, and then paying them only the sub-minimum hourly'wage reserved for tipped employees for their work during that time;
(b) requiring tipped employees to perform non-tipped maintenance and preparation work incidental to their server duties (such as rolling silverware; refilling sugar caddies, salt and pepper shakers, ice and condiments; cleaning chairs, tables, booths, restaurant artifacts and decor, lights, blinds,’ and windows; closing out customers’ checks; performing pre-closing cleaning tasks such as vacuuming, sweeping the server’s assigned area, checking dishes, napkins, and utensils; and as other such “side work”) in excess of twenty percent of their work time, arid then paying 'them only the sub-minimum hourly wage reserved for tipped employees for their full work during that time;
(c) requiring tipped employees to report tips they did not receive (i.e., “phantom tips”) so that LRI could avoid making a supplemеntal wage contribution to the employees’ minimum cash wage to reach the applicable federal mandatory minimum wage;
(d) requiring tipped employees to record tips earned in a given week in a subsequent week so that LRI could avoid paying supplemental wages for the subsequent week;
(e) requiring tipped employees to perform duties “off-the-clock” before, during, and after their regular shifts without adequate compensation (resulting in LRI’s electronic timekeeping records not reflecting the total hours worked by its tipped employees); and
(f) requiring tipped employees to participate in or provide job training during time that was not recorded on LRI’s electronic timekeeping system in .any way.
(the “LRI Violations”).
The Complaint states‘that the plaintiffs seek a collective action on behalf of themselves and all others similarly situated under FLSA §§' 206, 207, and 2Í6(b). (Id. at ¶ 52.) The Complaint asserts that the class is so numerous that joinder of all members is impracticable and that, in fact,
On April 6, 2015, the plaintiffs filed the Motion for Conditional Certification. (Docket No. 36.) In support of the motion, the two named plaintiffs each filed their own declaration, and the plaintiffs also filed “representative” declarations from thirty-four out of the seventy-one opt-in plaintiffs who had already filed consent forms stating that they wished to join the litigation. (Docket No. 37 at Exs. A, B,. C.) The Motion for Conditional Certification requests that the court do the following: (1) authorize.this.case to proceed as a collective action for minimum wage and overtime -violations under the FLSA, on behalf of the plaintiffs and all other similarly situated hourly paid tipped employees (servers and bartenders) of LRI, nationwide, who were denied proper minimum wage and , overtime compensation within the appropriate statute of limitations; (2) order LRI to provide a computer-readable file'containing the names, last known physical addresses, last known email addresses, social security numbers, dates of employment, and last known telephone numbers of all food and beverage servers of LRI who were tipped employees of-LRI within the last three years; (3) order that a court-approved notice be (a) posted at each LRI restaurant, (b) enclosed with all LRI tipped employees’ next regularly scheduled paychecks or stubs, and (c) be mailed to LRI’s current and former tipped employees who were employed at LRI during the past three years, so that putative class members can assert their claims on a timely basis as part of this litigation; (4) order tolling of the statute of limitations for the putative class as of the date the Motion for Conditional Class Certification is granted; and (5) order that the opt-in plaintiffs’ consent forms be deemed filed on the date they are postmarked (excluding the opt-in plaintiffs who have opted in prior to the court-supervised notice being sent.) (Id. at pp; 1-2.)
Subsequent to filing of the Motion for Conditional Certification, the plaintiffs continued to file additional declarations in support of the motion (as well as additional notices of consent to join the litigation by new opt-in plaintiffs). (See Docket Nos. 44, 50, 57.) On May 12, 2015, LRI moved for an extension óf time to respond to the Mоtion for Conditional Certification. (Docket No. 59.) The plaintiffs opposed
On July 6, 2015, after receiving written deposition responses from most of the eight chosen opt-in plaintiffs, LRI filed its Response in opposition to the plaintiffs’ Motion for Conditional Certification. (Docket No. 93) On July 16, 2015, the plaintiffs filed a Reply (Docket No. 101) with forty more supporting, declarations from additional opt-in plaintiffs. (Docket No. 101 arid Ex. A.) Shortly thereafter, the plaintiff filed several inore declarations (Docket Nos. 103, 104, 106, 108) and additional notices of new opt-in plaintiffs’ consents to join the litigation (Docket Nos. 102,105,107). On July 29, 2015, LRI filed a document entitled “Objections to Evidence Submitted in Support of the Motion for Conditional Certification” (“Objections”), in which LRI objected to ninety-three of the declarations submitted by the plaintiffs in connection with the Motion for Conditional Certification and demanded that they be “completely disregarded by the court.”-
ANALYSIS
I. The Conditional Certifícation Of Plaintiffs’ Claims
A. FLSA Certification Standard
Recognizing that the value of an individual claim might be small and not otherwise economically sensible to pursue, the FLSA provides that a collective action “may be maintained against any employer ... by any one or more employees for and on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Because the FLSA only requires that employees be “similarly situated,” plaintiffs seeking to certify a collective action under the FLSA face a lower burden than those seeking to certify a class .action under Federal Rule of Civil Procedure 23. O’Brien v. Ed Donnelly Enters.,
The FLSA does not define the term “similarly situated.” The Sixth Circuit has noted that courts have considered the “‘factual and employment settings of the individual ] plaintiffs, the different defenses to which the plaintiffs may be subject on an individual basis, [and] the degree of fairness and procedural impact of certifying the action as a collective action.’ ” O’Brien,
Typically, courts employ a two-phase inquiry to address whether the named plaintiffs are similarly situated to the employees they seek to represent. White v. Baptist Mem’l Health Care Corp.,
after all of the opt-in forms have been received and discovery has concluded.” Comer,
At the'first stage, the plaintiff bears the burden of showing that employees in the class are similarly situated. Benson v. Asurion Corp., No. 3:10-cv-526,
“[T]he certification is conditional and by no means final.” Id.,
B. The Plaintiffs’ Declarations and the Defendant’s Objections
In support of the Motion for Conditional Certification, the plaintiffs ¿ave submitted declarations from numerous current and former LRI employees, each stating that they were subjected to-one or more of the LRI Violations
The plaintiffs also offer approximately ninety-eight
LRI sets forth a number of. concerns with the declarations in the -Objections, none of which is persuasive. First, LRI complains that some of the declarations were signed many weeks before they were filed and/or not signed or filed at the same time that the signors opted into this action. LRI assigns an underhanded purpose to this. (See Docket No. 109 at pp. 1-2.) However, this hyper examination of the plaintiffs’ prosecution of its case is of no moment as to the evidentiary value of the declarations. It is not the role of the court to second guess the timing of plaintiffs’ filings as long as they do not offend the certification process (which, here, they do not).
Next, LRI argues that' the declarations “contain statements that are unsupported by personal knowledge, consist of rank speculation or improper legal opinion, and/or lack any probative value, and they should be stricken from the record or otherwise disregarded.” (Id. at p. 3.) Primarily LRI argues that the declarants have not established the, proper foundation for their statements. For example, LRI points out that the declarants have not established how they obtained their knowledge concerning whether they or others were on or off the clock at any given time or whether, they spent more than twenty percent of their time on side work. The court disagrees and finds that these are simple statements of .fact based on personal knowledge or experience for which the declarants are not required to lay a foundation in their,,declarations. -This is not a
LRI’s Objections are also based on the fact that, when LRI deposed eight declar-ants by written question, it uncovered some inconsistencies between their responses and their declarations as to the particular LRI Violations they experienced. (Id.) LRI uses this fact to support its assertion that certain of those declar-ants have submitted “materially false” declarations in this matter. (See Docket No. 101 at p. 5 n. 10; Docket No. 109 at pp. 5-6.) The court notes that, when deposing the eight declarants by written question, LRI sent most of them 113 legal questions to be answered in a rapid time frame. (Docket No. 101 at p. 5.)’Moreover, as the plaintiffs highlight in the Reply, several of those declarants, after realizing they had inadvertently made some mistakes, filed amended declarations to remedy them. (See Docket No. 101 at p. 5 n. 2, Ex; 2.) The court has reviewed LRI’s concerns and finds that they are not, at this stage, substantially justified. Moreover, they are mostly inappropriate, because, as noted above, the court avoids making credibility determinations at this stage of the certification process.
LRI’s Objections also refer to the declarations as vague and conelusory. In support of this argument, LRI relies at length upon Bacon v. Eaton Aeroquip, L.L.C., No. 11-14103,
Finally, LRI’s Objections contain a list of “specific objections” to individual statements in the declarations. (See Docket No. 109 at pp. 7-14.) For example, LRI specifically objects to the statement “I have been required tо perform non-tip producing work while clocked-in to the company’s payroll system as a tipped employee, and received less than the minimum wage
In sum, the court finds that there is no basis to disregard the plaintiffs’ declarations. Rather, the court finds that the plaintiffs’ evidence is sufficient to make the required modest evidentiary showing for class certification purposes.
C. Whether the Prospective Collective Action Plaintiffs Are Similarly Situated
All together, the plaintiffs have provided one hundred declarations of current and former LRI employees, all of whom allege that LRI’s wilful scheduling, assignment, and employment. practices have denied them (and potentially other co-workers) minimum wage and overtime compensation in violation of the FLSA. Thesе declarations show (1) employment with LRI; (2) the job title for which certification is sought; (3) performance of similar job duties under the job title regardless of the LRI restaurant at which they worked; (4) payment of wages; (5) work performed (a) for no wage, (b) for below the minimum wage, and/or (c) in excess of forty hours per week without overtime compensation by LRI; (6) job duties and requirements that do not meet the requirements of any exemptions to the FLSA. Because the plaintiffs’ evidence suggests the existence of a common practice that violates the FLSA, the plaintiffs have met their “fairly lenient” burden to establish that they are “similarly situated” to other LRI employees for purposes of conditional certification. At the very least, the plaintiffs’ claims are “unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct.”- O’Brien,
LRI’s substantive arguments against certification that are based upon the merits of the plaintiffs’ FLSA case are premature.
Similarly, the court will not review at this time LRI’s argument that collective treatment should be denied because individualized issues would predominate over common ones. Specifically, LRI argues that the on-site management and employment experiences of the tipped employees at individual restaurants necessitates the individual examinаtion of the plaintiffs’ claims. (Docket No. 93 at pp. 24-26.) Courts have specifically held that “disparate factual and employment settings of the individual plaintiffs” are particular issues that are “appropriately examined under the second stage of the [certification] analysis” (ie., in a motion for decertification), rather than at the motion for certification stage. White,
Thе court will, however, review LRI’s arguments that are properly responsive in the conditional certification phase. LRI argues that the plaintiffs have not shown sufficient interest among members in the putative class in joining the litigation. (Docket No. 93 at p. 10-12.) Although LRI cites several cases suggesting a requirement of sufficient interest, see Beecher v. Steak N Shake Operations, Inc.,
For these reasons, the court will grant the Motion for Conditional Certification. See, e.g., Roberts,
Moreover, the court finds that granting the plaintiffs’ request for certification of a “nationwide” collective action that extends to all states in which LRI operates restaurants is appropriate and would serve the interests of justice and efficiency. The court recognizes that the plaintiffs have not adduced evidence from employees whose work has encompassed every LRI restaurant in evеry state- in which LRI operates. However, this is not necessary, given the FLSA’s broad remedial purpose, and such a high bar is rarely met in an FLSA action. While approximately half of the declarations provided by the plaintiffs are from tipped employees who have been employed at restaurants in Tennessee and Kentucky, the plaintiffs have also offered declarations from -tipped employees who have been' employed in eighty percent of the geographically disperse nationwide territory (fourteen of the
II. Proposed Notice Protocol and Disclosure of Potential Plaintiffs
FLSA claims are governed by a two-year statute of limitations or, in the case of a “willful violation,” a three-year statute of limitations. 29 U.S.C. § 255(a). The statute of limitations is not tolled for any individual class member until that individual has filed a written, consent to join form with the court. 29 C.F.R. § 790.21(b)(2). The information contained in a notice form is, therefore, important to allow a prospective plaintiff to, understand his or her interests and a collective action hinges on “employees receiving accurate and timely notice concerning [its] pendency [...], so that they. can make informed decisions about whether to participate.” Hoffmann-LaRoche,
The plaintiffs propose'a notice and сonsent protocol to notify potential opt-in plaintiffs of this action and enable them to join it. To that end, the plaintiffs have submitted specific proposed notice and consent documents (see Docket Nos. 37-4, 37-5). The plaintiffs contend that the court should authorize use of the proposed notice document because it is “timely, accurate, and informative,” as required.
LRI contends that the plaintiffs’ proposed notice is deficient in several respects: (1) the description of the putative collective action included in the no tice, fails to make clear to individuals receiving the notice that they are only eligible tо opt in if they were subjected to an FLSA .violation concerning which the court grants conditional certification; (2) the notice period should be limited to, at most, 45 days; and (3) notice should only be sent via U.S. mail and the disclosure of additional contact information is therefore unnecessary. (Docket No. 93 at p. 28.) LRI, therefore, requests that the court defer ruling on the proposed notice and direct the parties to meet and confer regarding its proper content. " '
The court has reviewed the proposed notice and consent forms. While the court is sensitive to the fact that the statute of limitations is running, it was the plaintiffs’ decision to file the Motion for Conditional Certification without first meeting and conferring with counsel for LRI to work out a mutually agreeable proposed protocol. The result is disagreement between the parties regarding that protocol—albeit, one that, based on common. practice in FLSA litigation, should be easily resolved. The court will, therefore, order the parties to confer and to submit agreed notice and consent forms within fifteen days of the entry of the accompanying Order. If the parties cannot agree, the plaintiffs shall file their proposed forms, and LRI may file its specific objections thereto, both by the same deadline: The plaintiffs may respond to LRI’s objections within five days.
To facilitate class notice, the court will order. .LRI to provide the plaintiffs with the names and last known mailing addresses of all similarly situated current and former , employees who worked for LRI as tipped employees in the last three years. See Roberts,
III. The Plaintiffs’ Request for Equitable Tolling
The plaintiffs also request that the statute of limitations be tolled as of the date the Motion for Conditional Certification is granted so. that putative class members will not have their limitations period run
In certain circumstances, the statute of limitations under the FLSA may be equitably tolled. See, e.g., Myers v. Copper Cellar Corp., No. 3:95-CV-541,
The plaintiffs also request that the consent forms be deemed “filed” on the date they are postmarked. (Docket No. 37 at p. 15.) This issue should be addressed, and preferably resolved, by the parties during their meet and confer regarding the notice and consent protocol. If .it is not resolved, the parties may set out their positions at the objection phase outlined above.
SUMMARY
This Memorandum and the accompanying Order shall have the following effect:
1. The court authorizes this action to conditionally proceed as a collective action, on behalf of all similarly situated current and former' hourly paid tipped employees (servers and bartenders) of LRI restaurants, nation- , wide, who, during the last three years, were denied proper minimum wage and overtime compensation in violation of the FLSA.
2. LRI shall, within fifteen days of the date of the accompanying Order, provide to counsel for the plaintiffs a list of names and last known addresses for all putative class members.
3. Counsel for the plaintiffs and coun- ■ sel for LRI shall' meet and confer regarding the notice and consent protocol and submit agreed notice and. consent forms no later than fifteen days after the date of the accompanying order. If the parties cannot agree on a protocol, by that same date: (1) the plaintiffs shall file their proposed notice and consent protocol, and (2) LRI shall separately file specific objections as to points of disagreement (by that same date). If this occurs, the plaintiffs may file a response within five .days. The court will resolve any disputes and implement a protocol.
CONCLUSION
The plaintiffs’ Motion for Approval of 29 U.S.C. § 216(b) Notice and Consent Forms and to Order Disclosure of Current and Former Tipped Employees (Condition
An appropriate order will enter.
ORDER
Plaintiffs’ Motion for Approval of 29 U.S.C. § 216(b) Notice and Consent Forms and to Order Disclosure of Current and Former Tipped Employees (Conditional Certification) of Defendants Logan’s Roadhouse Restaurants (Docket No. 36) is GRANTED IÑ PART AND DENIED IN PART as set forth in the accompanying Memorandum. The parties are required to adhere to the deadlines set forth therein as to the notice and consent protocol.
Notes
. The FLSA defines a “tipped employee” as any "employee engaged in an occupation in which he customarily and regularly receives more than $30, a month in tips.” See 29 U.S.C. § 203(t). ,
. The Complaint names LRI Holdings, Inc. • and Roadhouse Holding, Inc. as additional defendants in this action. LRI Holdings, Inc., a Delaware corporation, is the parent company of Logan’s Roadhouse, Inc.; Roadhouse Holding, Inc., another Delaware coiporation, is in:turn the parent company of LRI’Hold-ings, Inc. (Docket No. 1 at ¶¶ 5, 6.) In their opposition to the. Motion for Conditional Certification, the defendants note that "only Logan's Roadhouse, Inc. has ever employed [pjlaintiffs or any other members of the proposed collective.” (Docket No. 93 at p. 1 n. 1.) Defendants have not, • however, provided any factual basis for this statement-or formally moved for the dismissal of LRI- Holdings, Inc. or Roadhouse Holding, Inc., from this action. Accordingly, this áction shall, for now, proceed against all three defendants, and the court shall refer to the defendants collectively ás "LRI."
. These facts are not disputed by LRI.
. Under the FLSA, LRI is only required ’to pay its tipped employees $2.13 in cash wages per hour, provided that it- allows them the opportunity to participate in tip producing work, but must pay its non-tipped employees the $7.25 federal mandatory minimum wage.
. As best the court can interpret from the Complaint, the plaintiffs claim they are enti-tied to both the minimum wage for all time worked’each week (and that, where this was not earned in any given week, LRI must make up the difference with supplemental pay to reach the federal mandatory minimum wage) as well as overtime compensation for any time over forty hours per week (which LRI should provide, irrespective of any tips earned). Obviously, however, consideration of possible damages remedies is premature at this stage.
. These asserted common questions include: (1) whether LRI “required the plaintiffs and other members of the class to work hours without compensation; (2) whether LRI failed to pay the plaintiffs and other members of the class all applicable straight time wages for all hours worked; (3) whether LRI failed to pay the plaintiffs and the other members of the class :the applicable minimum wage for all hours worked; (4) whether LRI failed to pay the plaintiffs and other- members of the class all overtime compensation due them for all hours worked in excess of forty hours per week; (5) the correct statutes of limitations for the plaintiffs’ claims and the claims of the other members of the class; (6) whether the plaintiffs and other members of the class are entitled to damages, including but not limited to liquidated damages, and the measure of the damages; and, (7) whether LRI is liable for interest, ■ attorneys’ fees, interest, and costs, (Docket No. 1 at ¶ 56.) ■
. The Objections are confusing as to whether they refer solely to declarations filed specifically at the same time as the Motion- and Reply or include all declarations filed on the docket by the plaintiffs in this, matter, (See generally Docket No. 109.)
. In Hoffmann-LaRoche v. Sperling,
. See supra, pp. 1067-69.
. Ninety declarations were filed as of the date the plaintiffs filed their Reply. Eight declarations have been filed since that date. Because the eight additional declarations are substantially similar (aside from the identity and location of the declarant) to the previously-filed declarations to which LRI had an opportunity to respond, the court considers them here.
. Each of the declarants has also submitted a consent form to become an opt-in plaintiff in this action.
. The declarations all contain general state- . ments about being required by LRI to perform off-the-clock work, followed by additional specifics about which particular LRI Violation applies in the case of that declar-ant. While most declarants claim that they experienced all or the majority of the LRI Violations, this is not always the case.
. LRI also argues that the declarations should be disregarded because they are "cookie-cutter” and. therefore inherently “unreliable.” (Id. at pp. 5-6.) For legal support on this point, LRI relies on several cases from other districts for the propositions that hearsay and legal conclusions are inappropriate in declarations. (Id.) It is not entirely clear that there is any connection between a declaration being “cookie-cutter” and its containing inappropriate hearsay or legál conclusions. Regardless, the court does not find the declarations to contain inappropriate hearsay or legal conclusions; rather, the declarations generally contain the experiences, observations, and beliefs of the dеclarants.
. Inter alia, LRI argues that plaintiffs’ FLSA action must fail as a matter of law because LRI’s written policies prohibited the wage violations alleged by the plaintiffs. (See Docket No. 93 at pp. 7-9, 21-22.) LRI also argues that plaintiffs' reliance on the Depart
. A case from this circuit relied upon by LRI for a contrary holding (see Docket No. 93 at p. ' 27) is readily distinguishable. In Bearden v. AAA Auto Club South, Inc., a sister court found that variance among the proposed class members established that the case would require individualized proof and rendered conditional Certification inappropriate. Bearden,
. As described by the plaintiffs:
The Notice provides information abоut the pendency of the action and of the opportunity to opt-in. Plaintiffs’ legal claims are accurately described. Potential opt-ins are advised that [LRI] is defending against the claims and that they are not required to participate. The notice provides clear instructions on how to opt in and accurately states the prohibition against retaliation or discrimination for participation in an FLSA action____Overall, Plaintiffs’ proposed notice is easy to read and written in plain English, informing [c]lass members of their rights and how they can elect to participate in the action. The notice also describes the legal effect of joining the suit; describes the legal effect of not joining the suit; notes that the [c]ourt expresses no opinion regarding the merits of [plaintiffs’ claims or [LRI’s] liability, and accurately states the prohibition against retaliation or discrimination for participation in an FLSA action.
(Docket No, 37 atp. 14.)
. To guide the parties in' their discussions, the court is of the opinion that 120 days to opt in is excessive, but 45 days may not be long enough.