18th Annual Workplace Class Action Report - 2022 Edition

86 Annual Workplace Class Action Litigation Report: 2022 Edition compensation of other CMST participants. Accordingly, since Plaintiff failed to provide any documentary evidence to support the allegations in his declaration, the Court denied the motion for conditional certification of a collective action. Carollo, et al. v. United Capital Corp., 2021 U.S. Dist. LEXIS 55550 (N.D.N.Y. March 24, 2021). Plaintiffs, a group of hotel restaurant service workers, filed a class and collective action alleging that Defendants – the hotel owner, hotel, and restaurant – failed to pay minimum wages and overtime compensation in violation of the FLSA and the New York Labor Law (“NYLL”). Plaintiffs filed a motion for conditional certification of the FLSA claims and a motion for class certification of the state law NYLL claims pursuant to Rule 23. The Court granted the motion for class and collective certification. As to the FLSA claims, Plaintiffs alleged that Defendant utilized a service charge as part of the tips earned by servers as part of their wages. Plaintiffs argued that under federal law, a service charge could not count toward tips received by an employee to bring their wages to or above the minimum wage requirement. Plaintiff thus contended that Defendants’ policy of paying the banquet service workers a sub-minimum wage while relying on the service charge to bring their wages above the minimum was unlawful. Id . at *38. In support of their motion, Plaintiffs offered several affidavits from service workers attesting that Defendants employed this policy uniformly. Plaintiffs additionally submitted timesheets and spreadsheets outlining their allegations. The Court determined that at the first stage of conditional certification, Plaintiffs had made the required showing to prove that they were similarly-situated to the potential opt-in Plaintiffs they sought to represent. Plaintiffs further argued that Defendants improperly calculated their wages in determining their overtime pay rates by calculating the banquet service workers’ pay rates at one-and-a-half times the minimum wage without including any payment the employees earned through the banquet service charge. Id . at *39. The Court found that this policy applied to all banquet service workers and therefore Plaintiffs were similarly-situated to opt-in Plaintiffs with respect to the application and legality of the overtime compensation policy. Plaintiffs further asserted that Defendants failed to provide them notice that they would pay a tip credit wage in violation of the FLSA. The Court held that this finding would be applicable to all servers and therefore Plaintiffs were similarly-situated such that conditional certification was appropriate. As to their NYLL claims, Plaintiffs sought to certify four state law classes pursuant to Rule 23, including: (i) an unpaid gratuity subclass; (ii) the banquet service sub-minimum wage subclass; (iii) the hourly tipped restaurant service sub-minimum wage subclass; and (iv) the wage theft prevention subclass. Id . at *13. The Court applied the requisite Rule 23 analysis and found that Plaintiffs satisfied all the requirements for certification of the state law classes as well. Accordingly, the Court granted Plaintiffs’ motion for class certification pursuant to Rule 23 and for conditional certification of a FLSA collective action. Carranza, et al. v. VBFS, Inc. , 2021 U.S. Dist. LEXIS 64885 (S.D.N.Y. April 2, 2021). Plaintiff, a delivery driver for a deli, filed a collective action alleging that Defendants failed to pay minimum wage and overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted. In support of his motion, Plaintiff offered an affidavit in which he averred that he was paid a flat fee of $300 per week from 2014 until 2018, a weekly fee of $600 throughout 2019, and $800 per week from January 1, 2020 until January 23, 2020, despite regularly working over 40-hour workweeks. Id . at *4. Plaintiff further asserted that he and others similarly-situated were never paid overtime compensation despite regularly worked over 40-hours in a workweek. Plaintiff also submitted a spreadsheet showing the name, position, work period, work schedule, and pay of many of his co-workers, with at least six other employees who were similarly underpaid by Defendants during the relevant period. Defendants did not contest the motion. The Court undertook an independent analysis of the motion under 29 U.S.C. § 216(b). It determined that Plaintiff’s claims and the supporting materials were sufficient to establish a basis for conditional certification. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action. Carusillo, et al. v. FanSided, Inc., 2021 U.S. Dist. LEXIS 180014 (S.D.N.Y. Sept. 21, 2021). Plaintiffs, two media site experts, filed a collective action alleging that Defendant failed to pay minimum wages in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiff Carusillo regularly worked 30 to 35 hours per week and was paid $150 to $220 every two weeks, resulting in an hourly wage of $2.14 to $4.40. Plaintiff Gate typically worked 30 hours per week and was paid $300 to $400 every two weeks, resulting in an hourly wage of $5.00 to $6.66 per hour. Plaintiffs sought conditional certification of a collective action consisting of “all persons who are working or have performed work