MEMORANDUM AND ORDER
Plаintiff Adriean Delaney brings this Fair Labor Standards Act (“FLSA”) collective action and New York labor law class action against Geisha NYC, LLC, which operates Japonais, a New York City restaurant, Miae
BACKGROUND
For the purposes of this motion, the Court accepts the following facts as true. When Japonais opened in July 2006, it employed a tip pool system, whereby all tips were рooled and then distributed to employees entitled to receive them. (Declaration of Sandy Park dated July 13, 2009 (“Park Deck”) ¶6.) At the request of servers, Japonais switched to a tip-out policy one month later. (Park Deck ¶ 7.) Under that policy, each individual server takes home 53% of his or her tips from the dinner shift and 66% of tips from the lunch shift. (Park Deck ¶ 8.) The remainder of tips are shared among all other tipped employees and paid out with those employees’ paychecks. (Park Deck ¶ 8.) The amount the other employeеs receive varies depending on their position and whether the server worked in the restaurant’s dining room or the lounge area. (Park Deck ¶8.) Bartenders at the restaurant’s public bar also receive tips directly from customers, but tip-out into a separate “bar-only” pool. (Park Deck ¶ 8.) They retain 70% of those tips, with 25% going to barbaeks and 5% to food runners, if food is ordered at the bar. (Park Deck 18.)
Plaintiffs, who were tipped employees at Japonais required to participate in the mandatory tip pool, assert thаt managerial employees and non-service employees who do not “customarily and regularly receive tips” shared in the tip pool. (Complaint dated Feb. 18, 2009 ¶ 23; Declaration of Adriean Delaney dated June 19, 2009 (“Delaney Deck”) ¶¶4^-5; Declaration of Marc-Marie Duverger dated June 9, 2009 (“Duverger Deck”) ¶¶5-6; Declaration of James Feld dated June 9, 2009 (“Feld Deck”) ¶¶5-6; Declaration of Stephanie Powell dated June 18, 2009 (“Powell Deck”) ¶¶ 3-6; Declaration of Benjamin Weber dated June 17, 2009 (“Weber Deck”) ¶¶ 3-5.) Plaintiffs identify specific individuals who participated in the tip pools and who only performed limited service functions, while exercising managerial functions such as hiring, disciplining and firing employees, supervising activity, assigning employees to specific sections of the restaurant, dealing with customer сomplaints, conducting pre-shift meetings, and controlling schedules and vacations. (Delaney Deck ¶¶ 6-16; Duverger Deck ¶¶ 7-17; Feld Deck ¶¶ 7-17; Powell Deck ¶¶ 7-17; Weber Deck ¶¶ 6-16.) Plaintiffs also point to a schedule from December, which lists those same individuals as “Maitre D’/Managers” and a tip-out sheet showing those individuals received tips. (Declaration of Denise A. Schulman dated June 26, 2009 Ex. 3: Maitre D’/Manager Schedule, Ex. 4: Tip-out spreadsheet.) Plaintiffs contend that for either all, or some portion of their employment, they were paid less than the federal minimum wage. (Delaney Deck ¶2; Duverger Deck ¶2; Feld Deck ¶ 2; Powell Deck ¶ 2; Weber Deck ¶ 2.)
According to Defendants, the individuals identified by Plaintiffs include both managers, who did not participate in the tip pool, and service captains, who did. (Park Deck ¶¶ 10-12.) Defendants assert that the latter spend the majority of their time performing customer service duties. Defendants provide declarations from current employees — the Director of Operations, a service captain, and servers — who state that the service captains сoordinate food from the kitchens for their servers, seat diners, take orders, serve food and wine, notify the kitchen of special requirements, and field customer complaints. (Park Deck ¶¶ 13-14; Declaration of Roberto Araujo dated July 9, 2009 (“Araujo Deck”)
DISCUSSION
Under the FLSA, an employer must pаy employees the full hourly minimum wage, unless: (1) the hourly wage plus the employee’s tips equal or exceeds the federal minimum wage; and (2) the employee retains all tips received, although tips may be pooled with employees “who customarily and regularly receive tips.” 29 U.S.C. § 203(m). If the tip pool includes employees who do not customarily and regularly receive tips, the employer must pay them the full minimum wage. See, e.g., Chung v. New Silver Palace Rest,
I. Conditional Certification
Under the FLSA, potential class members to a collective action must affirmatively opt-in to be covered by the suit. 29 U.S.C. § 216(b). The statute of limitatiоns continues to run on a potential class member’s claim until he or she files written consent with the Court. 29 U.S.C. § 256(b). Although the FLSA does not provide for notice of the collective action, courts have discretion to authorize such notice. See Hoffmann-La Roche, Inc. v. Sperling,
Plaintiff must make a “modest factual showing sufficient to demonstrate that [he] and [the class members] together were viсtims of a common policy or plan that violated the law.” Toure,
As an initial matter, Defendants argue that this Court should disregard the declarations submitted by Plaintiffs beсause they are not based on personal knowledge and include hearsay. The also assert that the declarations are contradictory and that Defendants should have the opportunity to depose the declarants. However, the declarаtions are all submitted under penalty of perjury and state that that the declarant personally witnessed the facts set forth. In addition, the Court does not find any significant contradictions in the declarations. Finally, Defendants will have the opportunity to take the declаrants’ depositions and can move to de-certify the class if there is a basis to do so at a later stage. See, e.g., Hoff
Plaintiffs’ declarations establish that they were all required to participate in a tip pool that included employees who werе not the type of employee that customarily and regularly receives tips. They also establish that at least for some period of their employment they were paid less than the federal minimum wage because Defendants took advantage of the tip credit. This is sufficient to meet the modest factual showing that the Covered Employees were “victims of a common policy or plan that violated the law” and that there is a factual nexus between the plaintiffs’ situation and that of the Covered Employees. Whilе Defendants’ declarations suggest that there are issues of fact regarding whether service captains are the type of employee that customarily and regularly receives tips, that issue cannot be resolved at this preliminary stage.
Defendants alsо argue that because the tip-out policy resulted in some employees being treated differently, the Covered Employees are not similarly situated. However, while the Covered Employees may have received different amounts in tips, they were all paid less than minimum wage. Therefore, the Covered Employees are similarly situated.
Finally, contrary to Defendants’ arguments, there is no requirement in this circuit that a certain number of Covered Employees opt-in before a court can conditionally certify a class. See Pefanis v. Westwav Diner, Inc., 08 Civ. 002(DLC),
Aсcordingly, Plaintiffs’ motion for conditional certification is granted.
II. Notice
Under the FLSA, the content of the notice is left to the court’s discretion. “Courts consider the overarching policies of the collective suit provisions” and whether the proposed notice provides “accurate and timely notice concerning the pendency of the collective action, so that [an individual receiving the notice] can make an informed decision about whether to participate.” Fasanelli,
Plaintiffs’ proposed noticе with Plaintiffs’ modifications provides adequate and timely notice.
Accordingly, the notice, with the modifications proposed by Plaintiffs, is approved.
III. Discovery
Plаintiffs seek a computer-readable list of all non-managerial, tipped employees of Japonais within the last three years with name, last known mailing address, alternate address (if any), all known telephone numbers, social security numbers, and dates of employment. Plaintiffs propose that the parties execute a stipulation of confidentiality with regard to the social security numbers. District courts have split over requests for the disclosure of social security numbers. Compare Patton v. Thomson Corp.,
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for conditiоnal certification of the FLSA collective action, approval of the proposed notice and request for discovery is granted in part and denied in part.
SO ORDERED.
Notes
. Plaintiffs propose to clarify that to be included the individual must have worked as a "non-managerial, tipped employee (including servers, lounger servers, bartenders, service bartenders, barbacks, food runners, bussers, and assistant bussers).”