Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

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1 Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA VALDO SULAJ, et al., Case No. 1:16-cv UU Plaintiffs, v. IL GABBIANO MIAMI, LLC, et al., Defendants. / ORDER ON MOTION TO CONDITIONALLY CERTIFY CLASS THIS CAUSE comes before the Court upon Plaintiffs Motion to Certify Collective Action and Facilitate Notice to Potential Class Members, D.E. 13, filed May 13, The Motion is fully briefed and ripe for disposition. THE COURT has considered the Motion and the pertinent portions of the record, and is otherwise fully advised in the premises. For reasons set forth below, Plaintiffs Motion is GRANTED IN PART and DENIED IN PART. BACKGROUND On April 7, 2016, Plaintiffs filed suit against Defendants, IL Gabbiano Miami, LLC ( Il Gabbiano ), Gino Masci ( Masci ) and Juan Perez ( Perez ), bringing claims under the Fair Labor Standards Act ( FLSA ) and the Declaratory Judgment Act (the DJA ). 1 D.E. 1. Plaintiffs, who were allegedly employed by Defendants, claim that Defendants violated the overtime and minimum wage provisions of the FLSA. D.E , Plaintiffs are now moving for conditional certification of this case as a collective FLSA action and for permission to send notification of FLSA opt-in rights to putitive class plaintiffs. D.E On June 6, 2016, Plaintiffs voluntarily dismissed all claims against Perez. D.E. 28.

2 Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 2 of 9 Plaintiffs request that the Court certify the following class: All persons who worked for Defendants as servers and bartenders at their [Defendants ] restaurant Il Gabbiano during the three (3) years preceding this lawsuit and who, as a result of Defendants policy of requiring tipped employees to pool tips with employees who do not customarily and regularly receive tips, earned less than the applicable minimum regular and overtime wage for one or more weeks during the Relevant Time Period. D.E. 13 p. 1. In support of their Motion, Plaintiffs filed the affidavits of Valdo Sulaj, the named Plaintiff ( Sulaj ), as well as four opt-in Plaintiffs, Sergio Cortesi ( Cortesi ), Marco Piccin ( Piccin ), Alejandro Reyes ( Reyes ) and Lorenzo Policella ( Policella ). Sulaj, Cortesi and Piccin were servers at Defendants restaurant and Reyes and Policella were bartenders at Defendants restaurant. D.E. 13-3, 13-4, 13-5, 13-6, In support of their Reply, Plaintiffs also filed an additional affidavit on behalf of Policella. D.E Defendants oppose the conditional certification on grounds that Plaintiffs fail to meet their burden in establishing that Il Gabbiano servers and bartenders are similarly situated. D.E. 22 pp Defendants also argue that Plaintiffs fail to present evidence to warrant issuing a notice covering employees over a three year time period. Id. pp Defendants further argue that even if conditional certification is granted, Plaintiffs should be: (1) precluded from claiming failure to pay minimum wage under Florida law; and (2) ordered to revise the proposed notice after meeting and conferring with Defendants. Id. pp Defendants remaining arguments address the underlying merits of Plaintiffs claims and are not appropriately considered at the conditional certification stage. LEGAL STANDARD Pursuant to 29 U.S.C. 216(b), a FLSA action may be maintained against an employer by any one or more employees for and in behalf of himself or themselves and other employees 2

3 Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 3 of 9 similarly situated. 29 U.S.C. 216(b). This provision allows a plaintiff to bring a collective action on behalf of those similarly situated, but requires putative plaintiffs to affirmatively opt in to the lawsuit by filing a written consent with the Court. Dybach v. Fla. Dep t of Corrs., 942 F.2d 1562, 1567 (11th Cir. 1991). The United States Court of Appeals for the Eleventh Circuit has suggested that district courts use a two-tiered approach to certification of 216(b) opt-in classes. Hipp v. Liberty Nat l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001). At the first stage, the district court determines whether to grant conditional certification of the collective action. Id. at If it does, potential plaintiffs receive notice of the opportunity to opt in to the suit, and the case proceeds as a collective action through the close of discovery when the defendant may move for decertification. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008). Upon such a motion, the district court determines whether the claimants are, in fact, similarly situated; if they are not, the district court will decertify the group and the opt-in plaintiffs are dismissed without prejudice. Id. At the first stage, a court looks to the pleadings and the affidavits in the record. Before conditionally authorizing a collective action, a district court should satisfy itself that: (1) there are similarly situated employees with respect to their job requirements and pay provisions; and (2) there are similarly situated employees who desire to opt in. Dybach, 942 F.2d at Moreover, in making a determination in whether to conditionally certify a proposed class for notification purposes only, courts do not review the underlying merits of the case. Rojas v. Garda CL Southeast, Inc., 297 F.R.D. 669, 675 (S.D. Fla. 2013). A plaintiff who is seeking conditional certification has the burden of showing by affidavit a reasonable basis that there are similarly situated employees who wish to join the action. 3

4 Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 4 of 9 Morgan, 551 F.3d at Furthermore, a plaintiff must present more than only counsel s unsupported assertions that FLSA violations are widespread and evidence that additional plaintiffs would come forward to join in the suit. Id. (citing Haynes v. Singer Co., 696 F.2d 884, 887 (11th Cir. 1983)). The plaintiff may meet this burden, which is not heavy, by making substantial allegations of class-wide discrimination, that is, detailed allegations supported by affidavits which successfully engage defendants affidavits to the contrary. Hipp, 252 F.3d at The decision to create an opt-in class under 216(b), like the decision on class certification under Rule 23, remains soundly within the discretion of the district court, and a district court will only be reversed where it has abused its discretion. Id.; see also Haynes, 696 F.2d at 886 (further noting that the power to authorize notice must be exercised with discretion and only in appropriate cases ). ANALYSIS I. Whether Proposed Class Members are Similarly Situated A. The Parties Arguments Plaintiffs argue that all of the servers and bartenders employed by Defendants are similarly situated because: (a) they all participated in the same tip pool; (b) the tip pool included non-tipped employees, specifically managers; and (c) they all worked for a reduced minimum wage although Defendants did not qualify to apply their tips towards the full minimum wage. D.E. 13 pp Plaintiffs also argue that because four opt-in Plaintiffs, as well as Sulaj, submitted affidavits, Plaintiffs have satisfied their burden that there are other potential class members who desire to join. Id. p. 6. Plaintiffs include six affidavits in support of their Motion, three of which pertain to servers and three of which pertain to bartenders. D.E through 13-7; D.E The 4

5 Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 5 of 9 affidavits are largely identical and, in short, suggest that servers and bartenders are similarly situated because they were paid less than the Florida minimum wage, subject to an illegal tip referral scheme as participants in the Restaurant Tip Pool, and took food and beverage orders, served food and beverages and opened bottled wine. D.E , 10; D.E , 11; D.E , 10; D.E , 12; D.E , 10. In response, Defendants argue that Plaintiffs proposed class of servers and bartenders seeks to encompass two groups of employees who are not similarly situated because servers only receive tips from the Restaurant Tip Pool, whereas bartenders receive tips from both the Restaurant Tip Pool and the Bartender Tip Pool. D.E. 22 pp According to Defendants, the baartenders were paid the minimum wage without deduction fro the tip credit because they received additional compensation from the Bartender Tip Pool that was not reduced by application of the tip credit. Defendants submit two affidavits in support of its Response. Carmen Polack, a Controller at Defendants restaurant ( Polack ), and Masci, one of the three owners of Il Gabbiano, state that while servers and bartenders are paid the same hourly rate and are compensated out of the Restaurant Tip Pool, there are significant differences in compensation between servers and bartenders. D.E As an initial matter, servers only receive tips from the Restaurant Tip Pool. These tips are split on a point system (ranging from 0.5 points to 1.0 points), which are allocated, in part, based on a server s level of experience at Defendants restaurant. Id Bartenders also receive tips from the Restaurant Tip Pool and this amount, once again, fluctuates based on the same 0.5 point to 1.0 point system allocated, in part, on one s experience. Id. However, bartenders also participate in a second tip pool, the Bartender Tip Pool, which only includes bartenders. Id. 17; D.E , The Bartender Tip Pool is 5

6 Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 6 of 9 calculated based on the total tips received directly by the bartenders (from customer checks paid to the bartenders for drinks and food ordered directly at the bars), which are then equally apportioned among the bartenders irrespective of their level of experience. D.E , 20; D.E Plaintiffs attach an additional affidavit to their Reply. In this affidavit, Policella states that: (1) there was no formal Bartender Tip Pool; (2) bartenders informally retained and split tips received from customers who paid at the bar; and (3) bartenders also performed the duties of service bartenders for servers who waited on customers in the dining room. D.E B. Analysis Based on the parties briefing and the parties counsel s argument at the June 17, 2016 Initial Planning and Scheduling Conference, the Court concludes that servers at Defendants restaurant are similarly situated, such as to justify conditional certification of a class of servers. The Court reaches this conclusion for two main reasons. First, servers are similarly situated in that they have similar job responsibilities and participate in only one tip pool, the Restaurant Tip Pool, which splits tips between servers and other employees at Defendants restaurant. D.E , 20; see also D.E Second, servers are similarly situated with respect to their FLSA claims against Defendants because, as argued by Plaintiffs counsel at the June 17, 2016 Initial Planning and Scheduling Conference, Plaintiffs seek to recover strictly based on Defendants alleged technical violations of the FLSA due to the sharing of tips from the Restaurant Tip Pool with non-tipped managerial employees. For these reasons, the proposed class of servers at Defendants restaurant is comprised of individuals who are so similarly situated as to warrant conditional certification under the FLSA. See, e.g., Grayson v. K Mart Corp., 79 F.3d 1086, 1009 (11th Cir. 1996) (affirming conditional certification under the FLSA 6

7 Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 7 of 9 where plaintiffs made substantial allegations of common issues of law and fact arising from the same alleged discriminatory activity ). On the other hand, Plaintiffs have not yet shown that the bartenders are similarly situated to servers and, therefore, will not be included in the conditionally certified class. In short, the record discloses a dispute as to whether the bartenders participate in both the Restaurant Tip Pool in connection with which Defendants apply the tip credit and a separate Bartender Tip Pool that is not subject to the tip credit. The bartenders may be in a different position than servers because, as claimed by Defendants, the revenue from the Bartender Tip Pool should be credited toward their compensation for the purpose of determining whether they were compensated at a rate equal to the minimum wage and, ultimately bar their minimum wage claims. D.E , 20; D.E ; see also D.E In sum, the possible existence of the two different tip pools, thus, raises distinct issues of law and fact that cannot be resolved at this juncture and, therefore, preclude inclusion of the bartenders in the conditional certification at this time. See, e.g., Butler-Jones v. Sterling Casino Lines, L.P., No. 6:08-cv Orl-35DAB, 2008 WL , at *7 (M.D. Fla. Dec. 18, 2008) (denying conditional certification where the class included three different categories of tipped employees ); Roberts v. Apple Sauce, Inc., 945 F. Supp. 2d 995, (N.D. Ind. 2013) (denying a motion to certify collective action because the plaintiff failed to establish that other tipped employees were similarly situated to the plaintiff). Accordingly, the Court denies Plaintiffs Motion in so far as it seeks conditional certification of a class that includes bartenders at Defendants restaurant. 7

8 Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 8 of 9 II. Whether There are Employees Who Wish to Opt In to this Lawsuit Plaintiffs must also establish a reasonable basis for the existence of other potential opt-in plaintiffs. Pena v. Handy Wash, Inc., 28 F. Supp. 3d 1289, 1299 (S.D. Fla. 2014). This is not an onerous burden, and the existence of just one other co-worker who desires to join is sufficient to raise the Plaintiffs contention beyond one of pure speculation. Id. (internal citation omitted). For this reason, courts in this district have conditionally certified classes with as few as two affidavits from potential plaintiffs. Rojas, 297 F.R.D. at 676. In addition to Sulaj, three servers presently wish to opt in to this action. 2 These three servers also state that they know of other current and former servers at Defendants restaurant who would wish to join this collective action if given notice of their rights. D.E ; D.E ; D.E Plaintiffs have, therefore, satisfied the Court that there are other employees of [Defendants] who desire to opt-in. Dybach, 942 F.2d at Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs Motion to Certify Collective Action and Facilitate Notice to Potential Class Members, D.E. 13, is GRANTED IN PART and DENIED IN PART, as follows: (1) The Court hereby GRANTS conditional certification of the following class: All persons who worked for Defendants as servers at their restaurant Il Gabbiano during the three (3) years preceding this lawsuit and who, as a result of Defendants policy of requiring tipped employees to pool tips with employees who do not customarily and regularly receive tips, earned less than the applicable minimum regular and overtime wage for one or more weeks during the Relevant Time Period. 2 The Court does not address whether there are bartenders at Defendants restaurant who wish to opt in to this action because it is not conditionally certifying a FLSA class that includes bartenders. 8

9 Case 1:16-cv UU Document 31 Entered on FLSD Docket 06/20/2016 Page 9 of 9 (2) The Court hereby DENIES conditional certification of any class pertaining to, or otherwise including, bartenders at Defendants restaurant. (3) The parties SHALL meet and confer to revise the proposed notice and consent forms to conform to the rulings in this Order. The proposed notice and consent forms SHALL include language explaining that opt-in plaintiffs: (1) may be required to pay Defendants costs and attorneys fees in connection with this action; and (2) will be required to participate in discovery in accordance with the Federal Rules of Civil Procedure and this Court s Orders. The parties SHALL provide amended and agreed forms of proposed notice and consent forms no later than Friday, July 1, (4) Plaintiffs and their counsel SHALL NOT distribute notice or consent forms without express authorization by this Court. DONE AND ORDERED in Chambers at Miami, Florida, this _17th day of June, cc: counsel of record via cm/ecf URSULA UNGARO UNITED STATES DISTRICT JUDGE 9