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Alverson v. BL Restaurant Operations, LLC

United States District Court, W.D. Texas, San Antonio Division

November 15, 2017

BRADLEY ALVERSON, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED; MELODY BRUSH, RYAN CARVER, ALISSA TAPIA, ASEONNIA JOHNSON, DEVAN CHONTOS, STEPHEN OLLER, JOSELINE RIVERA, Plaintiffs,
v.
BL RESTAURANT OPERATIONS, LLC, Defendant.

          MEMORANDUM AND ORDER

          RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Plaintiffs' Motion for Conditional Certification and Memorandum of Law in Support [#34]. This Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., putative collective action was referred to the undersigned for disposition of all pretrial matters pursuant to Rules CV-72 and 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.[1] The undersigned has authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A). See, e.g., Esparza v. C&J Energy Servs., Inc., No. 5:15-CV-850-DAE, 2016 WL 1737147, at *1 (W.D. Tex. May 2, 2016) (noting conditional certification involves non-dispositive issues).

         Having considered the Motion [#34], the Response filed by Defendant BL Restaurant Operations LLC d/b/a Bar Louie (referred to here as “BL”) [#36], Plaintiffs' Reply [#38], the relevant law, and the pleadings, the Court GRANTS IN PART Plaintiffs' Motion for Conditional Certification [#34]. As discussed more fully below, the Court finds Plaintiffs have shown that conditional certification of a nationwide class comprised of all current or former tipped servers or bartenders employed by BL from August 26, 2013 to the present is warranted for purposes of providing potential class members notice of this lawsuit and an opportunity to opt-in. This order, however, need not be the final word on class certification. Once the opt-in period has expired and discovery is complete or substantially complete, or at some other appropriate time, BL can raise the certification issue again in a motion to decertify.

         Plaintiffs and BL are directed to meet and confer regarding the substance of a proposed notice to the potential opt-in plaintiffs and the method of delivery for that notice.

         I. Background

         Plaintiff Bradley Alverson initiated this action against BL on August 26, 2016. BL is the self-asserted owner of a national chain of restaurants operating under the name “Bar Louie.” (See Resp. at 3). Alverson later amended his complaint to add Plaintiff Casey Howie. Alverson and Howie are current or former bartenders or servers at BL's restaurants located in San Antonio, Texas and Pittsburg, Pennsylvania.

         The Amended Complaint alleges BL violated the FLSA's minimum-wage requirements by improperly claiming the federal “tip credit, ” which under certain circumstances can permit employers to pay tipped employees less than the statutory minimum hourly wage. See 29 U.S.C. § 203(m). More specifically and as pertinent to the conditional-certification issue presented here, Plaintiffs allege BL willfully violated the FLSA and improperly claimed the tip credit by: (1) failing to provide employees with adequate notice of BL's intent to claim the credit (the “notification claim”); (2) requiring tipped employees to perform non-tipped side work unrelated to the tipped profession (the “dual-jobs claim”); and (3) requiring tipped employees to spend more than 20% of their work time engaged in non-tipped “side work” (the “20% claim”). (See Amend. Compl. ¶ 3(c)-(e)).

         On June 7, 2017, BL filed a motion for partial judgment on the pleadings, attacking the 20% and dual-jobs claims. It argued the 20% claim fails because it is based solely on nonbinding provisions of the Department of Labor (DOL) Field Operations Handbook, which it says are “infeasible” and unentitled to judicial deference. See [#24 at 6-12]; see also DOJ Wage and Hour Division, Field Operations Handbook § 30d00(f)(2) & (3) (2016). BL argued the dual-jobs claim fails because the specific non-tipped tasks upon which that claim is based-tasks like sweeping, cleaning bathrooms, washing dishes, cutting fruit, etc.-are not different jobs at all. They are instead, according to BL, directly related and incidental to Plaintiffs' tipped occupations. See [#24 at 2, 13-15].

         On July 6, 2017, with BL's motion for partial judgment pending, Alverson and Howie filed their motion for conditional certification [#34]. It seeks conditional certification of a national class of all current and former tipped BL employees, including servers, bartenders, and “other tipped employees” employed from August 26, 2013, to the present. Obtaining conditional certification would entitle Alverson and Howie to send notice to other potential plaintiffs, thereby allowing them to opt-in. See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013) (“The sole consequence of conditional certification is the sending of court-approved written notice to employees . . . who in turn become parties to a collective action only by filing written consent with the court, § 216(b).”) (citation omitted); see also Motion at 21 (requesting conditional certification for purposes of providing notice and an opportunity to opt-in to potential class members).

         Alverson and Howie attached to their motion declarations from seven different opt-in plaintiffs, all current or former servers or bartenders employed by BL in four different states- Texas, Ohio, New Jersey, and Massachusetts. All seven allege they were paid less than the full minimum wage. (See Exs. 6-13 to Motion ¶ 3). They attest they spent more than 20% of their time performing non tip-producing side work such as cleaning restrooms, cleaning coolers and shelves, washing dishes, polishing brass, dusting, mopping, cutting fruit, and so on; they also allege BL did not separately track this time. (Id. ¶¶ 6-12). They further contend that they, along with other BL tipped employees, were all subject to the “same policies and procedures, ” which presumably includes BL's handbook, attached as Exhibit 1 to the Motion. (Id. ¶¶ 14-15). According to BL's written housekeeping policy in the handbook, all BL employees were required to “pick up trash from the bar, tables and floor, keep storage shelves clean and organized” and complete “assigned side work” on a daily basis. (Ex. 1 to Motion at 32). Finally, all attest that BL never explained it was paying them less than the full minimum wage because they were receiving tips or that their tips would be used as a credit against the minimum-wage requirement. (See Exs. 6-13 to Motion ¶ 4). Plaintiffs make similar allegations in their Amended Complaint. (See Amend. Compl. ¶¶ 25-36).

         On August 8, 2017, Magistrate Judge Primomo addressed BL's motion for partial judgment and recommended that it be denied, reasoning that Alverson and Howie's allegations “are plausible on their face and raise a right to relief above the speculative level.” ([#39] at 9, 16, 18). In support of that conclusion, he determined that the 20% and dual-job claims are essentially one and the same, (id. at 17-18), and noted that “the 20% exception to the tip credit found in [the DOL Handbook] is recognized by various courts.” (Id. at 15).

         BL timely objected to Judge Primomo's memorandum and recommendation [#43]. BL's objections and the underlying motion for partial judgment on the pleadings are still pending before the District Court.

         II. Analysis

         Legal Standard for Conditional Certification. The FLSA permits lawsuits against employers on behalf of individual plaintiffs that are current or former employees, or as collective actions on behalf of others who are “similarly situated.” See 29 U.S.C. §§ 215-16. Establishing through conditional certification that others are “similarly situated” facilitates notice to potential class members and provides them instructions on joining the lawsuit. This notice and opportunity to join are appropriate because, unlike class actions under Federal Rule of Civil Procedure 23, FLSA collective actions proceed on an “opt-in” rather than an “opt-out” basis. Genesis, 569 U.S. at 75; see also Tolentino v. C & J Spec-Rent Servs., Inc., 716 F.Supp.2d 642, 646 (S.D. Tex. 2010); 29 U.S.C. ยง 216(b). District courts enjoy discretion to decide whether and how to issue notices for potential plaintiffs to opt-in to ...


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