Stephens v. Farmers Rest. Grp.

• Decision Date: 31 January 2018
• Docket Number: Civil Action No. 17–1087 (TJK)
• Citation: 291 F.Supp.3d 95
• Parties: Shayn STEPHENS et al., Plaintiffs, v. FARMERS RESTAURANT GROUP et al., Defendants.
• Court: U.S. District Court — District of Columbia

291 F.Supp.3d 95

Shayn STEPHENS et al., Plaintiffs,

v.FARMERS RESTAURANT GROUP et al., Defendants.

Civil Action No. 17–1087 (TJK)

United States District Court, District of Columbia.

Signed January 31, 2018

Gregory K. McGillivary, Theodore R. Coploff, Sarah M. Block, Molly Ann Elkin, Woodley & McGillivary, LLP, Washington, DC, for Plaintiff.

Joy Catherine Einstein, Meredith Sarah Campbell, Shulman, Rogers, Gandal, Pordy & Ecker. P.A., Potomac, MD, for Defendant.

MEMORANDUM OPINION AND ORDER

TIMOTHY J. KELLY, United States District Judge

Plaintiffs, eight current and former servers at five restaurants operated by Defendants, claim that Defendants violated federal and state laws concerning the minimum wage, overtime pay, and sick leave. In the instant motion,¹ Plaintiffs seek conditional certification of an opt-in collective action under federal and D.C. law. For reasons set forth below, the Court will grant the motion in part and deny it in part. Conditional certification will be granted, with the following limitations:

First, the putative class is limited to servers.

Second, conditional certification is not granted with respect to the following factual allegations: (a) Plaintiffs' "homework" allegations; (b) Plaintiffs' allegations regarding uncompensated time at pre-shift meetings insofar as they relate to the Founding Farmers Tysons restaurant in Virginia; and (c) Plaintiffs' allegation that Defendants failed to aggregate hours worked at different restaurants for overtime purposes.

Third, the putative class will be divided into three sub-classes, one for each of the three relevant jurisdictions (the District of Columbia, Maryland, and Virginia).

Fourth, Defendants will be required to produce names, mailing addresses, and email addresses for notice purposes within the next twenty days but, absent a further order of the Court, will not be required to produce telephone numbers or to include notices with paychecks mailed to employees. The opt-in period will last sixty days from when notice is sent.

Fifth, the Court does not approve Plaintiffs' proposed form of notice (Pls.' Br., Ex. A, ECF No. 14–1). Instead, the Court will order the parties to meet, confer, and submit to the Court a revised form of proposed notice consistent with this Opinion by February 9, 2018.

I. Background

A. The Amended Complaint

Defendant Farmers Restaurant Group operates five restaurants in the D.C. metropolitan area: three in the District of Columbia (Founding Farmers DC, Farmers Fishers Bakers, and Farmers & Distillers), one in Maryland (MoCo's Founding Farmers), and one in Virginia (Founding Farmers Tysons). ECF No. 5 ("Am. Compl.") ¶ 3. Plaintiffs allege that the two individual Defendants, Daniel Simons and Michael Vucurevich, own Farmers Restaurant Group. Id. ¶ 8.

Plaintiffs, eight current and former employees at the restaurants, claim that Defendants' conduct violated the minimum wage and overtime provisions of the federal Fair Labor Standards Act of 1938 ("FLSA"),² Am. Compl. ¶¶ 45–59, the minimum wage and overtime provisions of the D.C. Minimum Wage Act ("DCMWA"),³ Am. Compl. ¶¶ 60–74, the sick leave provisions of the D.C. Accrued Sick and Safe Leave Act of 2008 ("Sick Leave Act"),⁴ Am. Compl. ¶¶ 75–78, the minimum wage and overtime provisions of the Maryland Wage and Hour Law,⁵ Am. Compl. ¶¶ 79–94, and the payment requirements of the Maryland Wage Payment and Collection Law,⁶ Am. Compl. ¶¶ 95–101. Plaintiffs have brought their case as a putative opt-in collective action under the FLSA and D.C. law, id. ¶¶ 10–15, and as a putative Rule 23 opt-out class action under D.C. and Maryland law, id. ¶¶ 16–32. The instant motion relates only to Plaintiffs' proposed collective action, and accordingly Plaintiffs' Maryland-law claims are not relevant to the issues presently before the Court.

Plaintiffs claim that Defendants engaged in the following allegedly improper employment practices:

• Defendants required employees to use their own money "to purchase uniforms including, but not limited to, specific denim chambray shirts, suspenders, black non-slip shoes, aprons, and bow ties," id. ¶ 36, and "to clean, starch, and press their uniforms," id. ¶ 38.

• Defendants required employees "to purchase equipment for use while at work, including, but not limited to, bottle openers, corkscrews, black lighters, and black click-top pens." Id. ¶ 37.

• Defendants required employees "to attend pre-shift meetings" before each shift that lasted "on average 15 to 20 minutes," and employees were not compensated for time spent at the meetings. Id. ¶ 39.

• Defendants required employees "to engage in close-out duties for 30 minutes to two hours per shift," and such duties included without limitation "rolling silverware, resetting tables, polishing silver, and cleaning and setting up the restaurants." Id. ¶ 40. Similarly, Defendants required employees to spend time "sweeping, cleaning, and preparing the restaurants to open before their shifts." Id. ¶ 49(d).

• Defendants "required plaintiffs to pool their tips and share tip proceeds with staff who do not customarily and regularly receive tips and gratuities, including their managers." Id. ¶ 44.

• When employees worked at multiple restaurants within Farmers Restaurant Group, Defendants "counted the hours of work at each location separately for purposes of calculating overtime to avoid paying overtime." Id. ¶ 41.

• Defendants generally failed to compensate Plaintiffs "for all hours worked over 40 in a workweek at the proper overtime rate." Id. ¶ 43.

• Defendants failed to provide employees with sick leave. Id. ¶ 42.

• Plaintiffs allege that they were paid using the "tip credit" for purposes of federal and state labor law. See id. ¶ 35. That is, employees were paid a small cash wage (which under federal law must be at least $2.13), with the remainder of the minimum wage made up by tips. See id. ¶ 51.

Defendants allegedly applied these practices to the named Plaintiffs and to similarly situated employees, namely "servers, wait staff, and bartenders." Id. ¶ 14.

Since the Amended Complaint was filed, Plaintiffs have submitted opt-in consents from five additional putative class members that seek to participate in the action. See ECF Nos. 9, 25.

B. Plaintiffs' Declarations

Seven of the eight named Plaintiffs have submitted declarations in support of the motion.⁷ The declarations explain that each Plaintiff either previously worked or still works as a "server" at one (or, in some cases, two) of the restaurants, with each Plaintiff's tenure beginning at some point since March 2015 and lasting for various lengths of time. See Calvillo Decl. ¶ 1; Clark Decl. ¶ 1; Krohn Decl. ¶ 1; Pitt Decl. ¶ 1; Stephens Decl. ¶ 1; Storey Decl. ¶ 1; Willig Decl. ¶ 1. Four named Plaintiffs worked at two restaurants, and each such Plaintiff claims that the same policies applied at both restaurants. See Calvillo Decl. ¶¶ 1–2; Clark Decl. ¶¶ 1–2; Pitt Decl. ¶¶ 1–2; Stephens Decl. ¶¶ 1–2. Only Plaintiff Calvillo worked at the Maryland restaurant, MoCo's Founding Farmers, see Calvillo Decl. ¶ 1, and only Plaintiff Storey worked at the Virginia restaurant, Founding Farmers Tysons, see Storey Decl. ¶ 1.

The declarations attest to each Plaintiff's knowledge of the allegedly unlawful practices at the restaurants. These declarations track the allegations in the Amended Complaint in most, but not all, respects.

• Plaintiffs declare that they were required to purchase "uniforms" generally similar to those described in the Amended Complaint, and that they were required to launder the uniforms. See Calvillo Decl. ¶¶ 4–5; Clark Decl. ¶¶ 4–5; Krohn Decl. ¶¶ 3–4; Pitt Decl. ¶¶ 4–5; Stephens Decl. ¶¶ 4–5; Storey Decl. ¶¶ 3–4; Willig Decl. ¶¶ 3–4. The descriptions of the uniforms vary somewhat from plaintiff to plaintiff. For example, while most Plaintiffs include "denim chambray shirts" when describing the uniform, e.g. , Calvillo Decl. ¶ 4, Plaintiff Pitt includes "white oxford shirts with non-French cuffs" instead, Pitt Decl. ¶ 4. Similarly, only two of the seven Plaintiffs mention suspenders in their descriptions, Calvillo Decl. ¶ 4; Stephens Decl. ¶ 4, and the word "suspenders" appears to have been whited out in Plaintiff Pitt's declaration, see Pitt Decl. ¶ 4.

• Plaintiffs declare that they were required to purchase equipment including "bottle openers, corkscrews, black lighters, and click-top black ink pens" for work. Calvillo Decl. ¶ 6; Clark Decl. ¶ 6; Krohn Decl. ¶ 5; Pitt Decl. ¶ 6; Stephens Decl. ¶ 6; Storey Decl. ¶ 5; Willig Decl. ¶ 5.

• With two notable exceptions, Plaintiffs uniformly report that they were required to attend pre-shift meetings lasting, "on average, 15 to 20 minutes each" and were prohibited from "clocking in" until the meetings were over. Calvillo Decl. ¶ 7; Krohn Decl. ¶ 6; Pitt Decl. ¶ 7; Stephens Decl. ¶ 7; Willig Decl. ¶ 6. However, Plaintiff Clark, who worked at both Farmers & Distillers and Founding Farmers DC, mentions only Farmers & Distillers when stating that servers could not "clock in" before the meetings (remaining silent on whether this was the case at Founding Farmers DC). See Clark Decl. ¶ 7. And Plaintiff Storey explains that employees are prohibited from "clocking in" at Founding Farmers Tysons only if they do not "come in at least 10 minutes early." Storey Decl. ¶ 6.

• Plaintiffs also claim that they lacked the opportunity to earn tips during the pre-shift meetings. Calvillo Decl. ¶ 7; Clark Decl. ¶ 7; Krohn Decl. ¶ 6; Pitt Decl. ¶ 7; Stephens Decl. ¶ 7; Storey Decl. ¶ 6; Willig Decl. ¶ 6. Plaintiffs similarly describe having performed "30 minutes to two hours" after each shift of non-tipped close-out duties, such as "folding linens, polishing silverware, bullets, and ramekins, cleaning the wait stations, removing trash, restocking the takeout and to go boxes, restocking condiments, cleaning and restocking beverage stations, polishing wine glasses, and preparing tables." Calvillo Decl. ¶ 8; see Clark Decl. ¶ 8; Krohn Decl. ¶ 7; Pitt Decl. ¶ 8

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