OPINION AND ORDER
Plaintiffs Kew Sing Yap (“Yap”) and Tasi Nima Sherpa (“Sherpa”) (collectively, “Plaintiffs”) bring this action under the Fair Labor Standards Act (“FLSA”), the New York Labor Law (“NYLL”), and New York’s Codes, Rules, and Regulations (“NYCRR”). Compl. (Doc. 1). Plaintiffs allege that they and all other similarly situated employees are entitled to wrongly withheld minimum wage, overtime, and spread-of-hours pay from the chain of four Manhattan restaurants operating under the banner Mooncake Foods (“MCF Chain”).
Plaintiffs bring this suit against. four corporate defendants and three individual defendants (collectively, “Defendants”). The four corporate defendants are the restaurants constituting the MCF Chain: Mooncake Foods, Inc. d/b/a Mooncake Foods SOHO (“MCF SoHo”), Buddha Foods, Inc. d/b/a Mooncake Foods Chelsea (“MCF Chelsea”), Fat Dragon Foods, Inc. d/b/a Mooncake Foods Hell’s Kitchen (“MCF HeU’s 'Kitchen”), and Zen Master Foods, Inc. d/b/a Mooncake Foods- (“MCF FiDi”). Plaintiff's aüege that Defendant Peter Lee is the Chief Executive Officer and shareholder of the MCF Chain,
Plaintiff Yap asserts that he was employed as a deliveryman at MCF Hell’s Kitchen from January 1, 2011 through February 15, 2012. Yap Affirmation in Support of Plaintiffs’ Motion for Conditional Certification (‘Tap Aff.”) (Doc. 30) ¶ 5. During that time, Yap claims that both he and his “co-workers” regularly worked more than forty hours per week, but were denied the full minimum wage, overtime, and spread-of-hours pay to which they were entitled under the FLSA and NYLL. Yap Aff. ¶¶ 7-24; see also Compl. ¶¶ 32-39.
Plaintiff Sherpa asserts that he was employed as a chef at MCF SoHo from February 2008 to January 8, 2011. Sherpa Affirmation in Support of-.Plaintiffs’ Mo
There are two motions before this Court. First, on February 28, 2014, Defendants MCF Chelsea and MCF FiDi moved under Federal Rule of Civil Procedure (“FRCP”) 12(c) for a judgment on the pleadings in their favor, arguing that Plaintiffs failed to allege facts plausibly demonstrating that these two particular MCF restaurants were Plaintiffs’ “employers,” as required under the FLSA. (Doc. 17). This motion is DENIED.
Second, on March. 3, 2014, Plaintiffs moved for conditional- certification of a FLSA Collective Action constituting all hourly paid, non-managerial employees who worked at one of the MCF Chain restaurants during the past three years, and asked the Court to authorize expedited notice to the collective and to equitably toll the statute of limitations. (Doc. 27). This motion is GRANTED in part and DENIED in part.,
I. Plaintiffs Adequately Allege a Single Integrated Enterprise
Pursuant to FRCP 12(c), Defendants MCF FiDi and MCF Chelsea ask the Court to dismiss them from the case because they are distinct corporate entities for whom neither Plaintiff ever worked. See Memorandum of Law in Support of Motion To Dismiss Defendants Buddha Foods, Inc. and Zen Master Foods, Inc. (Doc. 18) 4; see also Declaration of Peter Lee (“Lee Decl.”) (Doc. 20) ¶ 4 (stating that each of the four MCF locations is separately incorporated, “has a separate set of books,” has “its own bank account and Tax I.D. number,” and does not co-mingle funds with .other locations). Plaintiffs respond in opposition that MCF FiDi and MCF Chelsea “are part of a single employer along with the other Mooncake Foods locations,” and thus are properly named as defendants in.the instant suit. Memorandum of Law in Opposition to Defendants’- Motion To Dismiss
In so arguing, Plaintiffs rely on the so-called “single integrated enterprise” theory, Pis.’ Dismiss Opp’n at 5-12, according to which “’an employee, who is technically employed on the books of one entity, which is deemed to be part of a larger ’single-employer’ entity, may impose liability for certain violations of employment law not only on the nominal employer but also on another entity comprising part' of the single integrated employer.’” Spiciarich v. Mexican Radio Corp., No. 14-Cv-9009 (SHS),
The Court agrees with Plaintiffs that the theory is at least potentially available in FLSA cases, given the proper evidence.
To determine whether distinct entities operate as a single integrated enterprise, “courts consider (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Juarez v. 449 Rest., Inc.,
In their complaint, Plaintiffs allege that all four' MCF restaurants “are all members of a restaurant chain” that is owned, controlled, and operated by the same core team of individual defendants— Peter Lee, Kenny Luong, and Amy Luong. See Compl. ¶¶ 10-14. They allege that the individual defendants “had sufficient control of MCF Chain’s day to day operations to be considered an employer,” “were actively involved in managing the restaurants’ operations,” had “the power to hire and fire MCF Chain Employees,” “oversaw the finances of the restaurant [sic],” and gave “orders” and “discipline[ed] employees.” Id. ¶¶ 10-15. They" also allege “common policies” and “practices” undertaken across all four locations that were in violation of the FLSA, and chain-wide failures to provide proper notices and maintain proper records. Id, ¶¶ 46, 51, 71, 77.
Plaintiff Yap’s affirmation provides "additional facts, averring that all four MCF locations are commonly owned by the three individual defendants, and that those three defendants “monitor employees and manage the restaurants.” Kew Sing Yap Affirmation in Opposition to Defendants’ Motion (‘Tap Dismiss Aff.”) (Doc. 37) ¶¶ 5, 8. Plaintiff Yap’s affirmation states that
Finally, the interrelation of operations is further demonstrated by the three attachments Plaintiffs’ counsel submitted in opposition to Defendants’ motion: the single website shared among all four locations, the single menu shared among all four locations, and a W-2 form ■ that Plaintiff Sherpa received from MCF Chelsea, despite his cooking exclusively at MCF SoHo. See Declaration of Marigold T. Bridgeman (“Bridgeman Decl.”) (Doc. 36) Exs. 2-4 (website, menu, and W-2 form); see also Yap Dismiss, Aff. ¶ 19 (“All menus are the same....”).
Taken together, Plaintiffs have adequately alleged that Defendants together constitute a single integrated enterprise for purposes of potential FLSA liability. See, e.g., Juarez,
II. Conditional Certification of FLSA Collective Action
A. Legal Standard
Pursuant to the FLSA, an individual may file suit against an employer on
The Second Circuit Court of Appeals has endorsed a two-step framework for determining whether a court should certify a case as a collective action under § 216(b). See Myers,
Here, Plaintiffs seek an initial determination of the propriety of notice to putative opt-in plaintiffs. “Because minimal evidence is available” at this early stage of the proceedings, and' because the Court “retain[s] the ability to reevaluate whether the plaintiffs are similarly situated,” Plaintiffs face a “’relatively lenient evidentiary standard.’” McGlone,
In considering Plaintiffs’ motion, “the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make- credibility determinations.” Lynch v. United Servs. Auto. Ass’n.,
B. Discussion
Plaintiffs seek to conditionally'certify a collective that spans all eligible employees across the whole MCF Chain, arguing that all are similarly situated with respect to Defendants’ chain-wide policy and practice of denying minimum and overtime wages. Specifically, Plaintiff seek a collective that includes:
all of those hourly paid, non-managerial employees of the Defendants, including but not limited to chefs, waiters, kitchen workers, dishwashers, delivery persons or any other equivalent employee, who previously worked, or is currently working at one of the Defendants’ restaurants during the past three (3) years and who:
(i) worked overtime during that period;
(ii) did not receive minimum wages for all hours worked;
(iii) did not have their employment period properly recorded;
(iv) were denied meal breaks;
(v) were not informed about tip credit rules, or were required to pool tips with managerial or non-service employees; or
(vi) were not compensated for purchase and maintenance of delivery vehicles.
Memorandum of Law in Support of Plaintiffs’ Motion for Conditional Certification and Court-Authorized Notice (“Pis? Cert. Br.”) (Doc. 28) 4.
Defendants concede that Plaintiffs’ complaint and affirmations make a sufficient showing of similarity with respect to delivery people at MCF Hell’s Kitchen and chefs at MCF SoHo. See Defendants’ Memorandum of Law in Partial Opposition to Plaintiffs’ Motion for Conditional Collective Action Certification and Authorized Notice <“Defs? Cert. Opp’n”) (Doc. 39) .3, 8. The FLSA collective in this case, there'fore, will include- at least-those delivery people from MCF Hell’s Kitchen and chefs from MCF SoHo who worked-within the applicable terms under the statute of limitations. But Defendants oppose a collective that is any broader. The remaining questions are thus whether to include within the collective (i) delivery people from locations other than MCF Hell’s Kitchen, (ii) chefs from locations other than MCF SoHo, and (iii) other types of employees (e.g., waitresses, busboys, etc.) across all MCF Chain locations. •
Defendants first argue that the Plaintiffs'cannot represent' any employees from MCF Chelsea or MCF FiDi because the Plaintiffs were themselves never employees at those two restaurants. Defs? Cert. Opp’n 3-4. This argument'’has no merit, however, because “[i]n this Circuit, courts have regularly found Plaintiffs to be similarly situated to employees at' locations where they did not work, provided that the plaintiffs demonstrate that they were all subject to the same allegedly unlawful policy or practice.” Hamadou v. Hess Corp.,
Moving beyond their attempt at a categorical prohibition, Defendants' next maintain that “the allegations in the complaint and in the affirmations do not make a sufficient showing of similarity” between the Plaintiffs and employees at MCF Chelsea or MCF FiDi. Defs? Cert. Opp’n 4. With respect to certification across multiple retail locations,. “courts consider whether the plaintiffs have made an adequate -factual showing to support an infer
The Court finds that Plaintiff Yap’s affirmation provides the modest factual showing required to certify a collective that includes delivery people • across all four MCF Chain locations. Specifically, Yap states that during his year-and-change working as a deliveryman for MCF Hell’s Kitchen, he worked approximately sixty-and-one-half (60.5) hours a week, was paid $500 in cash every two weeks but was nonetheless “required to sign in a book that [he] received $800,” never had his hours or pay recorded by Defendants, and was not provided any written information by Defendants about minimum wage or overtime. Yap Aff. ¶¶ 5, 8-11. Yap also states that he “knows” Defendants did not pay “many of [his] co-workers their minimum wage and overtime or record the hours they worked” because Yap and his co-workers “would discuss and compare [their] wages over coffee on [their] limited breaks,” and adds that he personally “know[s]” or “know[s] of’ three deliverymen each from MCF SoHo, Chelsea, and Hell’s Kitchen “who were paid similarly to [him] based on conversations.” Id. ¶¶ 14-20. Critically, and tellingly omitted from Defendants’ discussion of his affirmation, Defs.’ Opp’n 6, Yap also avers that all deliverymen from all locations “had to sign the same book that read that [they] received $800,” that the book “listed the names of all deliverymen from all locations,” that deliverymen were “interchanged [among] all Mooncake locations” to compensate at times when a given location was “shorthanded,” and that deliverymen from MCF Hell’s Kitchen would often deliver food from MCF Chelsea instead, either when the latter was understaffed, or when food for MCF Hell’s Kitchen was prepared at MCF Chelsea, as was the case a “majority” of the time given the small size of the Hell’s Kitchen location. See Yap Aff. ¶¶ 21-22, 25-27. This is a sufficient “minimum level of detail” to justify certification. See Reyes v. Nidaja, LLC, No. 14 Civ. 9812 (RWS),
Likewise, the Court also finds that Plaintiffs have made a sufficient factual showing to certify a collective that includes chefs across all four MCF Chain locations. Plaintiff Sherpa states that dur
Defendants object to the inclusion of any employees from the, two locations at which Plaintiffs Yap and Sherpa never worked, arguing that Plaintiffs’ “allegations of similarity are wholly conclusory and lacking in specificity,” and that courts “require far more detail and evidence of similarity” than Plaintiffs have provided here. Defs.’ Cert. Opp’n 4-7. But courts in this district “routinely certifiy] conditional collective actions based on the plaintiffs affidavit declaring they have personal knowledge that other coworkers were subjected to- similar employer practices.” Guo Qing Wang v. H.B. Rest. Grp., Inc., No. 14-CV-813 (CM),
Finally, Defendants object to the inclusion of any other types of employees besides delivery'people and chefs, arguing that Plaintiffs “make no allegation that other types of employees they' seek to represent were subject to the same pay policy and practices as they allege that they were themselves.” Defs.’ Opp’n 8-9. “In the Second Circuit, courts routinely find employees similarly situated ’despite not occupying the same positions or performing the same job functions and ih the same locations, provided that they are subject to a common unlawful policy or practice.’” Guaman v. 5 M Carp., No. 13 Civ. 03820 (LGS),
In sum, the Court grants conditional certification of a FLSA 'collective that includes all delivery people and all chefs who worked at any of the four MCF • Chain locations from September 17, 2010 to the present.
III. Equitable Tolling
Plaintiffs request that the statute of limitations on this suit “be tolled for 90 days until the expiration of the Opt-in period.” Pis.’ Cert. Br. 11. In FLSA cases, where the “willfulness” of the alleged violations is disputed, as it is here, Compl. ¶¶ 46, 52, “the court applies the three-year statute of limitations for purposes of certifying a representative action.” Iglesias-Mendoza v. La Belle Farm, Inc.,
As stated above, the Court is conditionally certifying a collective that dates back to' three years before the filing of the original complaint in this case, despite the fact that “the statute of limitations for opt-in plaintiffs’ FLSA claims runs until they actually join the lawsuit; it does not relate back to the filing of the named plaintiffs complaint.” Gaspar v. Pers. Touch Moving, Inc., No. 13-cv-8187 (AJN),
Assuming the significant delay in deciding this motion merits equitable tolling, it is “not yet clear whether or not any potential plaintiffs will be barred from this action due to a delay in notice. Where, as here, the Court permits notice to be effectuated upon a large class of Plaintiffs, the determination as to the timeliness of each future plaintiffs action is better reserved for a future proceeding.” Whitehorn v. Wolfgang’s Steakhouse, Inc.,
IV. Form and Content of Proposed Notice
The final set of issues involves the form and method of distribution of the court-authorized notice to be sent to the potential opt-in class of similarly-situated MCF employees. “By monitoring preparation and distribution of the notice, a court can ensure that it is timely, accurate, and informative. Both the parties and the court benefit from settling disputes about the content of the notice before it is distributed.” Hoffmann-La Roche Inc. v. Sperling,
Here, Plaintiffs submitted ‘ a proposed notice and Defendants requested multiple alterations to it. See Declaration of Marigold T. Bridgeman in Support of Motion for Conditional Collective Certification (Doc. 29), Ex. 5 (“Proposed Notice”); Defs.’ Cert. Opp’n 10-12. The parties have four core disputes about Plaintiffs’ proposed notice: (1) whether the opt-in period should be sixty days or ninety days, (2) whether the notice should be posted in common employee spaces at MCF Chain locations, in addition to being mailed, (3) whether the notice should inform potential.opt-in plaintiffs of the possibility that they will have to participate in discovery and testify at trial, and (4).whether opt-in forms sent in response to the notice should be delivered to Plaintiffs’ counsel or the Clerk of the Court. See Defs.’ Cert, Opp’n 10-12; Pis.’ Cert. Rep. 5-7.
First, although Plaintiffs requested a ninety-day opt-in period, they make no substantive arguments in' response to Defendants’ proposed sixty-day period, such as explaining why special circumstances in this ease would warrant a longer-than-normal opt-in period. As a result, and since “[c]ourts in this Circuit routinely restrict- the opt-in period to sixty days,” the opt-in period in this case will be sixty
Second, the Court grants Plaintiffs’ request to post the notice in common employee areas in MCF Chain locations. “Courts routinely approve requests to post notice on employee bulletin boards and in other common areas, even where potential members will also be notified by mail.” Whitehorn,
Third, the parties are directed to confer and agree on a “neutral and nontechnical reference to' discovery obligations,” which has the advantage of “providing notice regarding potential obligations” while mitigating the “possibility of dissuading potential plaintiffs” from opting in. Id. at *7 (citing Lujan v. Cabana Mgmt., Inc., No. 10-CV-755 (ILG),
Fourth, the Court denies Defendants’ request that opt-in forms be sent to the Clerk of the Court. Rather, opt-in forms ■will be sent to Plaintiffs’ counsel. See Guo,
Lastly, Plaintiffs have not responded to Defendants’ requests that the notice provide contact information for Defendants’ counsel, and thus Defendants’ request is granted. See, e.g., Escano v. N & A Produce & Grocery Corp., No. 14-cv-4239 (PAC),
Y. Conclusion
The Court DENIES Defendants Buddha Foods, Inc.’s and Zen Master Foods, Inc.’s motion for judgment on the pleadings or summary judgment. (Doc. 17).
The Court GRANTS in part and DENIES in part Plaintiffs’ motion for conditional certification. (Doc. 27). The Court hereby ORDERS conditional certification
Furthermore, Plaintiffs and Defendants are hereby ORDERED to meet and confer on a newly-revised notice that incorporates the Court’s rulings above. The parties should submit a joint proposed notice to the Court for final approval within twenty-one (21) days of this Opinion and Order. The parties should also agree on a common, non-public employee space within each MCF Chain location that is suitable for the posting of notice and opt-in form;
The Clerk of the Court, is respectfully directed to terminate the instant motions, Doc. 17 and Doc. 27.
It is SO ORDERED.
Notes
. Peter Lee describes himself as the "presir . dent” of the MCF Chain restaurants. See Declaration of Peter Lee (Doc. 20) ¶ 2.
. Plaintiffs also alleged that Amy Luong is Peter Lee's sister and Kenny Luong is Amy Luong’s husband and' Lee’s brother-in-law. Compl. ¶¶ 13-14.' Plaintiffs’ original complaint named Helen Lee, manager of MCF SoHo and wife of Peter Lee, as an individual defendant, Compl. ¶ 12, but Ms. Lee was later dismissed voluntarily from the case pursuant to Federal Rule of Civil Procedure 41 (a)( 1 )(A)(ii). See Stipulation (Doc. 33).
. While this motion was originally styled as requesting a judgment on the pleadings under FRCP 12(c) or, in the alternative, summary judgment under FRCP 56, Defendants’ subsequently acknowledged that the Court need only consider the 12(c) motion, and not the motion for summaiy judgment. See Buddha Foods, Inc.’s and Zen Master Foods, Inc.’s Reply Memorandum in Further Support of Motion To Dismiss (Doc. 42) 6 n.3.
. Compare Juarez v. 449 Rest., Inc.,
. The Court rejects Defendants’ contention that Plaintiff has failed to even include an allegation that all four MCF locations consti- ■ tuted a single integrated enterprise. See Buddha Foods, Inc.’s and Zen Master Foods, Inc.’s Reply Memorandum in Further Support of Motion To Dismiss (Doc. 42) 5-6. This argument requires a highly formalized and technical reading of the complaint that is inappropriate in the context of a dispositive motion in which all favorable inferences are drawn in favor of the non-movant.
. Defendants' point to some cases in which Plaintiffs failed to provide a .sufficient factual .showing. See Defs.’. Cert. Opp’n 4-5..Those cases are factually distinct and, indeed, consistently apply the "modest factual showing” requirement that Plaintiffs here have met. For example, in Levinson, v. Primedia Inc.,, the only factual showings went to the specific named plaintiffs in that case, and there was no evidence demonstrating that other potential plaintiffs were paid “hourly rates below minimum wage” or worked "overtime hours without overtime pay,” such that “Plaintiffs’ attempts to broaden their allegations beyond the existing-plaintiffs [were] insufficiently specific to make such a showing.” No. 02 Civ. 2222 (CBM),