MEMORANDUM DECISION AND ORDER
Plaintiff Jeong Woo Kim (“Kim”) brings this putative collective action on behalf of
Kim has moved for: (1) conditional certification of a collective action pursuant to 29 U.S.C. § 216(b); (2) production of the names and personal information of all potential opt-in plaintiffs; (3) court-facilitated notice of the action to all potential opt-in plaintiffs; and (4) authorization to post a proposed notice of the action in the defendants’ restaurant. (ECF No. 27 (“Pl.’s Mot.”)). For the reasons set forth below, Kim’s motion is granted in part and denied in part.
I. Factual Background
Defendants 511 E. 5th Street, LLC, d/b/a Goat Town, Nicholas Morgenstern, and Joel Hough (collectively, the “Defendants”) operate a restaurant in Manhattan known as “Goat Town.”
The Defendants allege that, in this role, Kim was a manager exempt from the FLSA’s minimum wage and overtime provisions. {See id. ¶¶ 7-8). According to Morgenstern, the managing member of 511 E. 5th Street, LLC, the Defendants explained the position’s managerial duties to Kim at the start of his employment. Those duties allegedly included supervising other kitchen staff members, providing input for hiring and firing decisions, and ordering and receiving inventory. {Id.).
For his part, Kim contends that he spent the majority of his time performing non-managerial tasks such as cleaning the restaurant, washing dishes, and preparing food alongside other kitchen staff members. {See ECF No. 29 (Decl. of Jeong Woo Kim, dated May 28, 2013 (“Kim Deck”)), ¶ 3). Kim further maintains that he did not have authority to hire or fire staff members, and was never asked to provide input regarding such decisions. {Id.). Kim argues that because his actual job duties did not involve any managerial tasks, he was not exempt from the FLSA minimum wage and overtime provisions. (ECF No. 38 (“PL’s Reply Mem.”) at 3-4).
The two sides also dispute whether Kim typically worked overtime. Kim alleges that he regularly worked 14 hours per day, at least 5 days per week, for a total of at least 70 hours per week. (Kim Decl. ¶ 2). The Defendants, on the other hand, maintain that Kim “likely worked the usual hours of the cooks and Chef — about 8 hours a day between 3 p.m. and 11 p.m.” (Morgenstern Decl. ¶ 9). Although the Defendants do not indicate how many days per week Kim allegedly worked, both sides agree that he was paid on a salaried, rather than an hourly, basis and consequently did not receive overtime pay. According to the Defendants’ payroll records, Kim was paid a fixed amount of $550 per week
Although the parties agree that Kim was paid a fixed weekly salary, they disagree as to the method by which other Goat Town employees were paid. According to the Defendants, all employees other than Kim and the Chef were paid on an hourly basis and “receive[d] overtime at one and one-half their regular rate for all hours worked over 40 hours a week.” (Morgenstern Deck ¶ 5) (parentheses omitted). Kim alleges, however, that all kitchen staff members were compensated on a salaried, rather than an hourly, basis and therefore did not receive overtime pay. Kim bases this assertion on the frequent complaints that he heard from other kitchen staff members who had been denied overtime pay and were not being compensated on an hourly basis. (Kim Deck ¶ 4). Kim also avers that he “observed” tipped employees receiving less than the minimum wage even though he never observed them “receiving tip credit notice” from the Defendants. (Id. ¶ 5). According to Kim, the tipped employees spent twenty percent or more of their time engaging in such “non-tipped” activities as cleaning the restaurant. (Id.).
Citing his personal observations and conversations with two of his kitchen coworkers — “Dimitri” and “Geraldo”- — Kim alleges that he and other Goat Town employees were victims of a common compensation policy that violated the FLSA. (Ph’s Mem. at 9).
II. Legal Standard
A. FLSA Generally
The FLSA establishes a minimum hourly wage that employers must pay their employees and requires employers to pay overtime wages, at a rate of one and one-half times an employee’s normal hourly rate, for any hours worked in excess of 40 hours in a single week. 29 U.S.C. §§ 206, 207. These requirements, however, are subject to several exemptions.
The Second Circuit has held that, “because the FLSA is a remedial act, its exemptions ... are to be narrowly construed.” Martin v. Malcolm Pirnie, Inc.,
In this case, the Defendants rely on the FLSA exemption applicable to an “employee employed in a bona fide executive ... capacity.” 29 U.S.C. § 213(a)(1). This executive exemption applies to any employee:
(1) [cjompensated on a salary basis at a rate of not less than $455 per week ..., exclusive of board, lodging or other facilities; (2) [wjhose primary duty is management of the enterprise in which theemployee is employed or of a customarily recognized department or subdivision thereof; (3) [w]ho customarily and regularly directs the work of two or more other employees; and (4) [w]ho has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.
29 C.F.R. § 541.100.
B. FLSA Collective Action Certification
The FLSA authorizes an aggrieved employee to maintain a collective action on behalf of himself and “other employees similarly situated.” 29 U.S.C. § 216(b). Such an action is not subject to the class action requirements of Rule 23 of the Federal Rules of Civil Procedure. Davis v. Lenox Hill Hosp., No. 03 Civ. 3746(DLC),
Courts in this Circuit employ a two-step process to decide whether to certify a collective action under Section 216(b). See Myers v. Hertz Corp.,
Although the FLSA itself does not define the term “similarly situated,” courts require that there be a “factual nexus between the claims of the named plaintiff and those who have chosen [or might potentially choose] to opt-in to the action.” Davis v. Lenox Hill Hosp.,
Because the preliminary conditional certification takes place early in the litigation and often before discovery has begun, a named plaintiff need make only a “modest factual showing” that he and other potential opt-in plaintiffs “together were victims of a common policy or plan that violated the law.” Sbarro,
When there are ambiguities in the papers seeking collective action status, the court must “draw all inferences in favor of the [plaintiff’ at the preliminary certification stage. Mendoza v. Ashiya Sushi 5, Inc., No. 12 Civ. 8629(KPF),
Once notice has been sent to the potential opt-in plaintiffs and after discovery closes, the court may entertain a defendant’s motion to de-certify the action. This second stage of the process involves a “more stringent factual determination,” Lynch,
III. Discussion
A. Conditional Collective Action Certification
For the reasons set forth below, Kim has made the requisite “modest factual
1. Kim’s Individual FLSA Claims
To bring a collective action, Kim first must show that he, himself, was a victim of the Defendants’ illegal pay practices. See Vengurlekar v. Silverline Techs., Ltd.,
The Defendants first argue that Kim himself cannot assert any claims under the FLSA because, rather than being an “employee” of Goat Town, he was merely an “independent contractor.” (See Defs.’ Mem. at 10-11). This issue, which will come into play at the merits stage, will turn on such factors as (a) the degree of control that Goat Town management exercised over Kim, (b) the degree of skill and independent initiative required to perform Kim’s job, (c) the permanence or duration of the working relationship between Kim and Goat Town, and (d) the extent to which Kim’s work was an integral part of Goat Town’s business. See Brock v. Superior Care, Inc.,
The Defendants also argue that, even if Kim could be considered an employee of Goat Town, he was exempt from the FLSA minimum wage and overtime requirements because his sous chef role required him to perform managerial tasks that brought him within the executive exemption. Once again, to the extent that the Defendants attempt to prevail on the merits of Kim’s individual FLSA claims in response to his motion for conditional collective action certification, their contentions are irrelevant. They are asking the Court to undertake the very type of premature merits determination that is proscribed at the preliminary certification stage. See Lynch,
In sum, through his declaration alone, Kim has adequately alleged that he was
2. Other Similarly-Situated Potential Plaintiffs
Kim has alleged that, despite his “sous chef’ job title, he regularly performed the same sort of non-managerial tasks as other kitchen staff members, including cleaning the restaurant, washing dishes, and preparing food. (Kim Decl. ¶¶3, 4). His contentions in that regard are corroborated by the declaration of Jeon, the former kitchen intern at Goat Town, who alleges that during the course of her employment, she personally “observed that other kitchen staff did work that was the same or similar to the work [] Kim did.” (Jeon Decl. ¶ 4).
Kim also has adduced evidence that he and other kitchen staff members were compensated in a similar manner. In his own declaration, Kim states that while he was employed at Goat Town, he observed other kitchen staff members, including Dimitri and Geraldo, being paid on the same fixed salary basis that he was paid. (Kim Decl. ¶¶ 3, 4). Kim also states that he personally discussed the Defendants’ pay practices with Dimitri, who “often complained ... that he was working more than 40 hours each week, but was not paid overtime.” (Id. ¶4). These allegations are corroborated by Jeon, who claims to have regularly worked 44 hours each week, but to have been paid for only 40 hours. (Jeon Decl. ¶ 2). Jeon also allegedly “observed that it was the Defendants’ policy to pay kitchen staff on a salary rather than on an hourly basis.” (Id.). Kim thus has adequately alleged that he and the other kitchen staff members were victims of a common compensation policy that violated the FLSA. None of the Defendants’ arguments to the contrary suffice to defeat collective action certification.
The Defendants first mistakenly argue that Kim’s personal observations are the “type of ‘unsupported assertions ... that cannot satisf[y]’ [his] burden.” (Defs.’ Mem. at 10 (quoting Myers,
Here, by comparison, Kim seeks collective action status on behalf of a relatively small number of individuals, all of whom worked at a single location. Moreover, Kim relies not only on his own observations, but on statements made by other potential opt-in plaintiffs, who allegedly told Kim that they were being paid on a
Moreover, contrary to the Defendants’ assertions, Kim has adduced evidence beyond his own personal observations. As noted previously, he has submitted the declaration of Jeon, who alleges that she was not .paid overtime and that it was Goat Town’s “policy” to pay its kitchen staff a flat salary. (Jeon Decl. ¶ 2). Although a second declaration is not necessary, the declarations of Kim and Jeon, together, are more than sufficient to satisfy Kim’s minimal burden at the preliminary certification stage. See Hallissey,
Largely ignoring the applicable case law, the Defendants seek to defeat conditional certification by submitting their own evidence allegedly establishing that Kim’s status at Goat Town was sui generis and that every other Goat Town employee was paid according to the law. For example, through the Morgenstern declaration, the Defendants allege that Kim was one of only two exempt employees at Goat Town, and that every other employee was compensated on an hourly basis and received overtime pay for all hours worked in excess of 40 hours per week. (Morgenstern Deck ¶¶ 5, 13). The Defendants also rely on the declaration of Gerardo Gonzalez, a Goat Town cook. In that declaration, Gonzalez says that he is compensated on an hourly basis and receives overtime pay when appropriate. (ECF No. 36 (Deck of Gerardo Gonzalez, dated July 12, 2013 (“Gonzalez Deck”)), ¶¶ 4, 5). Finally, the Defendants maintain that certain specimen payroll records show that all of the Goat Town employees other than Kim and the Chef were paid on an hourly basis and received proper overtime compensation.
Once again, through their various submissions, the Defendants are asking the Court to resolve factual disputes at the preliminary certification stage. As noted earlier, this is not a task the Court should undertake. See, e.g., Winfield v. Citibank, N.A.,
Finally, the Defendants argue that this action cannot be conditionally certified because, as proposed, the action would include both exempt and non-exempt employees. Relying on Judge McMahon’s decision in Romero v. H.B. Automotive Group, Inc., No. 11 Civ. 386(CM),
The plaintiff in Romero was an “Inventory Manager” at an automotive retail dealership, who sought to certify a collective action on behalf of herself and all “nonmanagerial” employees at six separate locations. After class discovery was conducted, the plaintiff acknowledged that the proposed collective action would include some employees whom the defendants had classified as exempt from the FLSA’s requirements and paid a fixed weekly salary, and others whom they had classified as non-exempt and paid on an hourly basis. Id. at *12. Nonetheless, the plaintiff argued that the collective action should be certified because her employer had a “common scheme” to deny overtime wages to all of its employees. Id. at *11.
In her decision, Judge McMahon concluded that the plaintiff and the potential opt-ins were not similarly situated for at least two reasons. First, any employees who had been treated as exempt would need to litigate the preliminary question of whether their classification was proper before turning to the question of their hours and pay. Employees who had been treated ás non-exempt, on the other hand, would only need to litigate the quantum of relief to which they were entitled. Id. at *13. Second, the proposed collective action would have included “employees in a variety of roles, with a range of job duties,” without the plaintiff having made any “showing that the work performed by all potential opt-ins [was] similar to her own.” Id. (emphasis in original).
Here, unlike Romero, Kim seeks conditional collective action certification prior to discovery. Moreover, at least to the extent that Kim seeks to bring this action on behalf of kitchen staff members, there are no complicated issues regarding the other employees’ job responsibilities. Indeed, the only employee whose job responsibilities potentially are in question is Kim himself. If he is shown to be a non-executive
3. Scope of the Proposed Collective Action
Kim seeks conditional certification not only on behalf of all Goat Town kitchen workers, but also on behalf of every other non-exempt Goat Town employee, including porters, waiters, runners, bussers, and bartenders. Although Kim has shown that he is situated similarly to the other Goat Town kitchen staff members, he has not demonstrated a sufficient factual nexus between himself and the non-kitchen staff. Indeed, Kim concedes that, unlike the kitchen staff members, the other employees were paid at an hourly rate—albeit one that he alleges is below the minimum wage. (See Kim Deck ¶ 5). Significantly, he does not allege that the Defendants paid these additional employees a fixed weekly salary or that they were denied overtime compensation. Thus, even if these employees were to pursue FLSA claims against the Defendants, the legal and factual theories under which they would proceed would be entirely different than those pressed by Kim and the other kitchen staff members.
For this reason, the collective action will be conditionally certified only on behalf of kitchen staff members employed by the Defendants over the past three years.
B. Notice to Similarly-Situated Plaintiffs
Kim further requests court-facilitated notice of this action to all potential opt-in plaintiffs, as well as approval of his proposed FLSA notice and consent form.
The Supreme Court has recognized that the benefits of collective actions “depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.” Hoffmann-La Roche,
Here, court-facilitated notice is appropriate “to prevent erosion of claims due to the running statute of limitations, as well as to promote judicial economy.” Khamsiri,
C. Discovery of Names and Contact Information of Potential OpP-In Plaintiffs
Kim additionally requests that the Court direct the Defendants to produce the “names, title, compensation rate, period of employment, last known mailing addresses, email addresses and all known telephone numbers” of all putative class members employed by the Defendants within the past six years. (PL’s Mem. at 1). Although the Defendants have not opposed this request, Kim has not sought to certify a Rule 23 class under the NYLL. Instead, he simply seeks conditional certification of
For all such employees, the Defendants shall produce to Kim a list (in Excel format, if that is reasonably available) setting forth their names, addresses, compensation rates, telephone numbers, and dates of employment. This information shall be produced within fourteen days from the date of this Memorandum Decision and Order.
D. Posting of Notice and Consent Forms
Finally, Kim’s counsel seeks court-ordered access to the Defendants’ restaurant to post the notice of this action and to provide consent forms to those interested in opting in to the action. The Defendants do not oppose this request. “Such posting at the place of employment of potential opt-in plaintiffs is regularly approved by Courts.” Khamsiri,
IV. Conclusion
For the reasons set forth above, Kim’s motion for conditional collective action certification and related relief, (ECF No. 27), is granted in part and denied in part. Counsel shall confer and submit an agreed notice to the Court for its approval within fourteen days, if counsel are unable to agree on all of the wording for the notice, they shall submit within that same period their respective versions (in Word or WordPerfect format), together with a joint letter describing their differences.
SO ORDERED.
Notes
. Two other defendants, Lawrence Hough and Kathleen Hough, were dismissed by stipulation on March 8, 2013. (ECF No. 12).
. Kim’s declaration states that he does not know Dimitri and Geraldo’s last names. (Id. ¶ 4).
. Even if the Court could consider the Defendants’ declarations, "statements gathered by an employer from its current employees are of limited evidentiary value in the FLSA context because of the potential for coercion.” Amador v. Morgan Stanley & Co. LLC, No. 11 Civ. 4326(RJS),
The payroll records submitted by the Defendants are no more compelling. Although the records do seem to suggest that certain kitchen staff members were paid at something other than a fixed weekly rate, they do not establish that the staff members were properly paid the statutory minimum wage plus any necessary overtime compensation, because they do not reflect the number of hours each employee worked each week.