OPINION AND ORDI3R
Yadira Guzman, Daniris Espinal, Evelyn Rodriguez, Janine Bonderenko, Jennifer Eller, and Kayla Atkins have filed the above-referenced actions against their former employers, Three Amigos SJL Inc., Three Amigos SJL Rest., Inc., Times Square Restaurant No. 1, Inc., Times Square Restaurant Group, Ltd., Selim “Sam” Zherka, and Dominica O’Neill for violations of the Fair Labor Standards Act, 29 U.S.C. §§ '201 et seq. (“FLSA”), and the New York Labor Law. On April 1, 2015, the two actions were consolidated for all purposes, including trial, under docket number 14 Civ. 10120.
1. BACKGROUND
A. Facts Alleged by Plaintiffs
The following facts have been alleged by plaintiffs in their declarations filed as part of the instant motion:
Defendants operate a business called Cheetahs Gentlemen’s Club & Restaurant (“Cheetahs”). See Declaration of Yadira Guzman, dated Apr. 6, 2015 (annexed as Ex. B to Swartz Decl.) (“Guzman Decl.”), ¶ 2; Declaration of Daniris Espinal, dated Apr. 15, 2015 (annexed as Ex. C to Swartz Decl.) (“Espinal Decl.”), ¶2; Declaration of Evelyn Rodriguez, dated Apr. 14, 2015 (annexed as Ex. D to Swartz Decl.) (“Rodriguez Decl.”), ¶ 1; Declaration of Janine Bonderenko, dated Apr. 13, 2015 (annexed as Ex. E to Swartz Decl.) (“Bonderenko Decl.”), ¶ 2; Declaration of Jennifer Eller, dated Apr. 9, 2015 (annexed as Ex. F to Swartz Decl.) (“Eller Decl.”), ¶ 1; Declaration of Kayla Atkins, dated Apr. 14, 2015 (annexed as Ex. G to Swartz Decl.) (“Atkins Deck”), ¶2. Plaintiffs all worked as “entertainers] / dancer[s]” at Cheetahs.
During their employment, plaintiffs were not paid any hourly wages by Cheetahs for their work as entertainers. Guzman Deck ¶ 6; ■ Espinal Deck ¶ 6; Rodriguez Deck ¶ 5; Bonderenko Deck ¶ 12;
Plaintiffs were required to pay to Cheetahs a “house fee” of approximately $40 or $60 to $100 or $120 per shift worked, depending on the shift and time plaintiffs worked, a requirement that applied to all entertainers. See Guzman Decl. ¶ 10; Es-pinal Decl. ¶ 10; Rodriguez Deck ¶ 9; Bonderenko Deck ¶ 5; Eller Deck ¶ 8; Atkins Deck 1110. Additionally, plaintiffs were also required , to . pay fees if they arrived late to work or if they did not work a scheduled shift, even if they provided advance notice, another requirement that applied to all entertainers. Guzman Decl. ¶ 11; Espinal Deck ¶ 11; Rodriguez Decl. ¶10; Bonderenko Decl. ¶6; Eller Deck ¶ 9; Atkins Decl. ¶ 11.
Plaintiffs received tips from customers when they performed on stage and when they performed private “lap dances.” Guzman Deck ¶ 12; Espinal Deck ¶ 12; Rodriguez Deck ¶ 11; Bonderenko Decl. ¶ 7; Eller Deck ¶ 10; Atkins Deck ¶ 12. These tips were received directly from customers and did not pass through Cheetahs. Guzman Deck ¶ 12; Espinal Decl. ¶ 12; Rodriguez Deck If 11; Bonderenko Deck ¶7; Eller Deck ¶ 11; Atkins Decl. ¶ 12. However,' Cheetahs required plaintiffs to “tip out” other individuals who worked at Cheetahs, such as the “House Mom” and the DJ, each of whom plaintiffs paid at least $20 per shift. Guzman Deck ¶ 13; Espinal Deck ¶ 13; Rodriguez Deck ¶ 12; Bonderenko Deck ¶ 8; Eller Decl. ¶ 12; Atkins Deck ¶ 13. However, both the DJs and the “House Moms” had little or no contact with customers. Guzman Decl. ¶ 13; Espinal Deck II13; Rodriguez Deck ¶ 12; Bonderenko Deck ¶9; Eller D¿cl. ¶ 12; Atkins Deck ¶ 13. Plaintiffs were also required to “tip out” the “private room hostess” when performing work in a private room. Guzman Deck ¶ 13; Espinal Decl. ¶ 13; Rodriguez Deck ¶ 12; Bonder-enko Decl. ¶ 8; Eller Deck ¶ 12; Atkins Deck 1113. Cheetahs required all of its entertainers to similarly “tip out” the other individuals who’ worked at Cheetahs. Guzman Deck ¶ 13; Espinal Deck ¶ 13; Rodriguez Deck ¶ 14; Bonderenko Decl. If 10; Eller Deck ¶ 13; Atkins Deck If 13.
In addition to cash tips, plaintiffs also received tips in the form of “Cheetah Dollars,” which customers could purchase directly from Cheetahs. Guzman Decl. ¶ 14; Espinal Deck ¶ 14; Rodriguez Deck ¶ 13; Bonderenko Decl. ¶ 11; Eller Decl. ¶ 14; Atkins Deck ¶ 14. When plaintiffs exchanged the “Cheetah Dollars” for cash, Cheetahs retained 10% for itself. See Guzman ¶ 14; Espinal Deck ¶ 14; Rodriguez Deck T13; Bonderenko Deck ¶ 11; Eller Deck ¶ 14; Atkins Deck ¶ 14,
Throughout plaintiffs’ periods of employment, Cheetahs enforced a uniform policy, which required all of the entertainers to wear club-approved outfits, hairstyles, and make-up, and to purchase, launder, and maintain their uniforms at their own expense. Guzman Deck ¶ 16; Espinal Deck ¶ 15; Rodriguez Deck ¶ 15; Bonderenko Deck ¶ 17; Eller Deck ¶ 15; Atkins Deck ¶ 15. Entertainers were required to wear
Cheetahs supervised and controlled many aspects of the entertainers’ working conditions.- Guzman Deck ¶ 18; Espinal Deck ¶ 18; Rodriguez Deck ¶ 17; Bonder-enko Deck ¶ 20; Eller Deck ¶ 18; Atkins Deck ¶18. Cheetahs, imposed-rules and requirements on all of its entertainers, including plaintiffs. Guzman Deck ¶ 19; Es-pinal Deck ¶ 19; Rodriguez Deck ¶ 18; Bonderenko Deck ¶ 21; Eller Deck ¶ 19; Atkins Deck ¶ 19. Cheetahs required entertainers to work on days and times according to a schedule set by Cheetahs, dance on stage for at least three songs in a row, remain on stage after dancing until the next entertainer arrived and they were excused by the DJ, maintain at least two sets of gowns and one bathing suit for each shift worked, and remain dressed in their uniforms until the end of their shift. Guzman Deck ¶¶ 19, 21; Espinal Deck ¶¶ 19, 21; Rodriguez Deck ¶¶ 18, 21; Bonderen-ko Deck ¶¶ 21,23; Eller Deck ¶ 19; Atkins Deck ¶¶ 19, 21. Additionally, Cheetahs prohibited its entertainers from wearing certain types of uniforms or- hairstyles, changing into street clothes before the end of their shifts, using glitter, carrying cell phones on the dance floor, chewing gum, leaving the club with a customer, leaving the stage before the next entertainer arrived, and discussing Cheetahs’s operating procedures with customers. Guzman Deck ¶ 20; Espinal Deck ¶ 20; Rodriguez Deck ¶ 19; Bonderenko Deck ¶ 22; Eller Deck ¶ 20; Atkins Deck ¶ 20.
Cheetahs also had rules and requirements regarding entertainers’ schedules. Guzman Deck ¶ 22; Espinal Deck IT 22; Bonderenko Deck ¶24; Eller Deck ¶ 21; Atkins Deck ‘¶ 22. Cheetahs scheduled the entertainers for a minimum of three days per week, and it required the entertainers to obtain permission to work shifts other than the ones scheduled. Guzman Deck ¶ 22; Espinal Deck ¶ 22; Bonderenko Deck 1124; Eller Deck ¶ 21; Atkins Deck ¶ 22. If plaintiffs arrived late, they were subject to a late fee and discipline, and if they did not show up at all, they were subject to a “missed-shift fine” and discipline. Guzman Deck ¶ 22; Espinal Deck ¶ 22; Bonderenko Deck ¶ 24; Eller Deck ¶ 21; Atkins Deck 1122. Plaintiffs were fined and. subject to discipline for failing to appear, even if they provided advance notice to Cheetahs. Guzman Deck If 22; Es-pinal Deck ¶22; Bonderenko Deck ¶ 24; Eller Deck ¶ 21; Atkins Deck ¶ 22.
Plaintiffs’ declarations state several times that they know that defendants committed the allegedly improper wage and hour practices with respect to all of the entertainers of Cheetahs. See Guzman Deck ¶¶ 9-11, 13, 14, 21, 24, 27; Espinal Deck ¶¶ 9-11,13,14, 21, 24, 27; Rodriguez Deck ¶¶ 8-10, 14, 21, 23, 24; Bonderenko Deck ¶¶ 5, 6,10,16, 23, 26, 27; Eller Deck ¶¶ 5, 8,13,14, 23, 24; ■ Atkins Deck ¶¶ 9-11, 13, 14, 21, -24, 25. In many instances, plaintiffs give the names of other individuals who worked at the club with whom they had conversations about these wage and hour practices. See Guzman Deck
II. APPLICABLE LEGAL PRINCIPLES
The FLSA was enacted to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). “The purpose of the FLSA ... was to ‘guarantee [ ] compensation for all work or employment engaged in by employees covered'by the. Act.’” Reich v. N.Y.C. Transit Auth.,
Section 216(b) of the FLSA provides, in pertinent part:
An action to recover ... liability ... may be maintained against any employer ..: by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be. a party plaintiff to' any such action unless- he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b). While the statute does not prescribe any. procedures for approval of collective actions, § 216(b) has long been construed to grant authority to a district court to mandate that notice be given to potential plaintiffs informing them of the option to join the suit. See Hoffmann-La Roche Inc. v. Sperling,
- The ' requirements of Fed. R.Civ.P. 23 do not apply to the approval of a" collective action. Young v. Cooper Cameron Corp.,
The Second Circuit has endorsed a “two-step process” for approval of an FLSA collective action:
At step one, the district court permits a notice to be sent to potential opt-in plaintiffs if the named plaintiffs make amodest factual showing that they and others together were victims- of a common policy or plan that violated the law. [Myers,] 624 F.[3]d at 555. At step two, with the benefit of additional factual development, the district court determines whether the collective action may go forward by determining whether the opt-in plaintiffs are in fact similarly situated to the named plaintiffs. Id.
Glatt v. Fox Searchlight Pictures, Inc.,
Once plaintiffs have opted in and after discovery is complete, “courts conduct a more stringent ‘second tier’ analysis upon á full record to decide whether the additional plaintiffs are similarly- situated to the original plaintiffs,” Indergit,
III. ANALYSIS
A. Approval as a Collective Action
Plaintiffs argue that they are similarly situated to the other entertainers who worked at Cheetahs because Cheetahs subjected plaintiffs and the other entertainers, to the same compensation policies, which plaintiffs allege violate the FLSA. See PL Mem. at 9-11. Defendants argue .that, plaintiffs have not satisfied their burden for conditional approval because plaintiffs’ declarations do not make a sufficient factual showing that there are similarly situated individuals, the existence of varying contractual agreements between defendants and its workers establishes a lack of substantial similarity, the parties need to engage in discovery to clarify .the facts, and some of the named plaintiffs are not representative of the proposed opt-in plaintiffs. See Def. Mem. at 1, 2, 5-11. Defendants also assert that several of the named plaintiffs are bound by arbitration agreements, id. at 15, raise various challenges to the factual assertions contained in plaintiffs’ declarations, see id. at 1-11, and argue that plaintiffs are not “employees” under the’FLSA, see id. at 12.
To demonstrate that a proposed group of employees is “similarly situated” to a plaintiff requires only a “modest factual showing.” Guillen v. Marshalls of MA, Inc.,
Defendants contend that plaintiffs’ declarations are insufficient In several re
Defendants contend that the declarations demonstrate that plaintiffs lack “personal knowledge” that other entertainers are similarly situated and therefore the court should refuse to consider them. Def. Mem. at 9-10. However, “courts in this Circuit regularly rely on hearsay evidence to determine the propriety of sending a collective action notice — an approach that is consistent with the purpose of conditional certification which is only a preliminary determination as to whether there is a sufficient showing to warrant notice being sent to the purported collective class to allow members to opt-in to the lawsuit.” Ramos v. Platt,
Defendants assert that case law supports their argument that the evidentiary showing in this case is insufficient. See Def. Mem. at 8-9. But none of the cases they cite involved evidence similar to what has been provided here. In Silva v. Gordon Gaming Corp.,
Defendants argue that the “existence of several hundred various dancer agreements which varies from Plaintiffs and potential class, [sic] members clearly establishes the lack of substantial similarity [sic] situated members.” Def. Mem. at 6-7. Defendants assert there are four categories of dancers: “Dancers without contracts,” “Dancers with a contract containing a simplified Arbitration provision,” “Dancers with a contract containing a more substantial Arbitration provision and a class action wavier [sic],” and “Dancers with a lease agreement with a booking agency.” Id. at 3. Even assuming that the type of agreement varies from entertainer to entertainer, the Court does not see, and defendants fail to explain, how this has any bearing on whether the entertainers may be similarly situated with respect to plaintiffs allegations that the FLSA has been violated.
Nor does thé fact that some of the contracts have arbitration provisions, simplified or not, create any differences between plaintiffs and other entertainers with respect to whether defendants violated the FLSA. “[C]ourts have consistently held that the existence of arbitration agreements is ‘irrelevant’ to collective action approval ‘because it raises a merits-based determination.’ ” Romero v. La Revise Assocs., L.L.C.,
Defendants, request that “the Court ... direct the parties to further discovery for purposes of clarifying the[ ] facts ... and to identify if in fact these Plaintiffs are similarly situated.” Def. Mem. at 1-2. Such a request is inappropriate. “Because courts- do not weigh the merits of the claim, extensive discovery is not necessary at the notice stage.” Lynch v. United Servs. Auto. Ass’n,
Defendants also argue that some of the named plaintiffs did. not perform at Cheetahs for more than one year, and therefore it is “not fair” to permit them “as representatives of the purported class as clearly they did not perform for nearly enough time to attempt to state that their experience was representative of any class.” Def. Mem. at 11, This argument, however, conflates the requirements for condi
The remainder of defendants’ arguments, including that plaintiffs are not employees under the FLSA, “attack the merits of the ease, raise factual disputes, .or question the credibility of Plaintiffs’ declarations. These are not issues that can be addressed at this juncture.” Flood v. Carlson Rests. Inc.,
For these reasons, plaintiffs’ , motion for conditional approval of a collective action is granted.
B. Equitable Tolling
Plaintiffs request the Court toll the FLSA statute of limitations from the date their motion for conditional approval was filed until plaintiffs are able to send notice to potential opt-in plaintiffs in order to “avoid inequitable circumstances.” PI. Mem. at 20-21. “As a general matter, a litigant seeking equitable tolling must establish two elements: ‘(1) that he has been pursuing his rights diligently, and (2)' that some extraordinary circumstance stood in his way and prevented timely filing.’ ” Bolarinwa v. Williams,
The only ground advanced by plaintiffs in support of their request for equitable tolling is that they have acted with diligence in pursuing their FLSA claims. See PL Mem. at 20-21. They assert that the Court should toll the limitations period simply because plaintiffs filed their motion for conditional approval “less than 6 weeks
We do not believe that we have sufficient information to make a finding that the elements of equitable tolling have been met as to all future plaintiffs in this case, especially the requirement that the future plaintiffs demonstrate “extraordinary circumstances.” To the extent that case law has suggests that the time to adjudicate a motion for conditional approval by itself provides the basis for meeting either of the prongs of the equitable tolling analysis, we note that the delay between the filing of plaintiffs’ motion and its adjudication today — about three-and-a-half months — is not of a magnitude that would justify tolling. See Mark,
IV. CONCLUSION
For the foregoing reasons, plaintiffs’ motion for conditional approval of a collective action (Docket # 18) is granted. With respect to the issues that have been raised as to the content of the proposed notice, the Court will address these issues at a conference that will be the subject of a separate Order.
SO ORDERED.
Notes
. Unless otherwise specified, citations to the docket refer to filings under docket number 14 Civ. 10120.
. See Notice of Plaintiffs’ Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA and for Expedited Discovery, filed Apr. 17, 2015 (Docket # 18); Memorandum of Law in Support of Plaintiffs’ Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA and for Expedited Discovery, filed Apr. 17, 2015 (Docket #19) (".PL Mem.”); Declaration of Justin M. Swartz in Support of Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA and for Expedited Discovery, filed Apr. 17, 2015 (Docket # 20) ("Swartz Decl.”); Defendants [sic] Memorandum of Law in Oppossition [sic] to Plaintiff's Motion to Conditionally Certify a Fair Labor Standards Act Collective Action and Authorize Notice to be Issued to All Persons Similarly Situated, filed May 22, 2015 (Docket #26) (‘■‘Def:<Mem.”); Declaration of Rex Whitehorn in Opposition of Plaintiffs’ Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA and for Expedited Discovery, filed May 22, 2015 (Docket #27); Reply Memorandum of Law in Support of Plaintiffs’ Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA and for Expedited Discovery, filed June 2, 2015 (Docket #30); Supplemental Declaration of Justin M. Swartz in Support of Plaintiffs’ Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA and for Expedited Discovery, filed June 2, 2015 (Docket #31).
. In their declarations, plaintiffs appear to use the terms "entertainer” and "dancer” interchangeably.
. Defendants contend that the contractual agreements entered into by plaintiffs show that plaintiffs had to supply their own costumes and that Cheetahs had no control over their "performances, expression or costumes.” Id. at 4-5. These factual disputes are not properly decided at this- stage, however, as discussed further below.