18th Annual Workplace Class Action Report - 2022 Edition

88 Annual Workplace Class Action Litigation Report: 2022 Edition minutes to eat before resuming work. Id . Both also averred that they were aware of other employees who were subject to the same or similar compensation practices and policies. The Court found that Plaintiffs’ evidence suggested that a number of employees other than themselves worked more than 40 hours per week and were compensated by means of a flat daily, weekly, or monthly wage arrangement that violated the overtime provisions of the FLSA. Defendants argued that if conditional certification was granted, the collective action should be limited to only waiters. The Court agreed that the proposed collective action was overbroad, but declined to limit the action to just waiters. The Court determined that Plaintiffs made the requisite showing that both the full-time waiters and the full-time kitchen staff at the restaurant routinely worked more than 40 hours per week, but were paid based on flat daily, weekly, or monthly rates that did not compensate them for their overtime hours at one and a half times their regular hourly rates. However, the Court held that Plaintiffs did not make the requisite showing as to any part-time staff members or to any employees other than waiters and kitchen staff. Accordingly, the Court found that conditional certification was appropriate for a limited group of workers, including full-time, non-exempt waiters and full-time, non-exempt kitchen staff. For these reasons, the Court granted in part Plaintiffs’ motion for conditional certification of a collective action. Chen, et al. v. Lilis 200 W. 57th Corp. , 2021 U.S. Dist. LEXIS 8011 (S.D.N.Y. Jan. 14, 2021). Plaintiff, a restaurant deliveryman, filed a collective action alleging that Defendants failed to pay minimum wages and overtime compensation in violation of the FLSA. Plaintiff filed a motion for conditional certification of a collective action, which the Court granted in part. Plaintiff sought conditional certification of a collective action consisting of all non-exempt employees over the last three years. In support of his motion, Plaintiff offered his own sworn affidavit, which stated that deliverymen at Defendants’ restaurants were not paid for all hours worked, were not paid at least the statutory minimum wage, were not paid time-and-a-half for overtime hours worked, and did not receive spread-of-hours pay. Id . at *5. Plaintiff also asserted that all deliverymen were asked to provide two Social Security numbers to assist Defendants in carrying out their policy of underpaying employees. Id . at *6. In support of his allegations, Plaintiff included in his affidavit the names, appearance, and work schedules of other deliverymen with whom he worked at Defendants’ restaurants. Plaintiff asserted that he personally observed their schedules, saw them receive their paychecks, and participated in a shared weekly tip pool, all of which allowed him to learn that Defendants paid other deliverymen the same "base wage" as him and required deliverymen to provide multiple Social Security numbers to avoid paying them for all hours worked. Id . Plaintiff also submitted affidavits of two other deliverymen, which were produced from a related case against Defendants. The affidavits stated that they each received a fixed salary regardless of the number of hours worked and that they often worked more than 40 hours in a workweek. The affidavits also averred that they knew of other deliverymen’s wages and hours because they spoke often with other employees about Defendants’ compensation policies. The Court held that the details in Plaintiff’s declaration made the requisite showing at the conditional certification stage to establish that similarly-situated individuals existed. The Court further opined, however, that Plaintiff fell short of providing sufficient evidence with respect to any employees other than deliverymen. The Court reasoned that relative to all other workers, Plaintiff provided no information concerning Defendants’ compensation practices, how the employees were paid, or whether they were paid overtime compensation. The Court concluded that Plaintiff failed to demonstrate that employees other than deliverymen were paid in the same manner as himself. For these reasons, the Court granted Plaintiff’s motion for conditional certification of a collective action consisting of all deliverymen for the previous three years. Cheng, et al. v. Via Quadronno LLC, 2021 U.S. Dist. LEXIS 182289 (S.D.N.Y. Sept. 23, 2021). Plaintiffs, a group of restaurant employees, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiffs filed a motion for conditional certification of a collective action, which the Court granted. Plaintiffs alleged that they were paid in different ways over various times, including by flat hourly rates, flat weekly rates, or flat monthly rates. Plaintiffs contended that they regularly worked over 40 hours per week and were not paid overtime compensation. In support of their motion, Plaintiffs offered several employee declarations that swore to the truth of the allegations contained in their complaint. Plaintiff also identified several other employees at Defendant’s restaurant who were also not paid overtime compensation. Defendant argued that Plaintiffs had not shown that there were other employees similarly-situated because Plaintiffs had not specifically averred or alleged that other employees were not paid overtime for the hours they worked. The Court concluded that Plaintiffs’ allegations, though sparse, were sufficient to make the requisite showing for the Court to grant conditional certification. Id . at *10. The Court reasoned that Plaintiffs established