Trinidad v. Pret

• Decision Date: 11 July 2013
• Docket Number: No. 12 Civ. 6094(PAE).,12 Civ. 6094(PAE).
• Citation: 962 F.Supp.2d 545
• Parties: Manuel A. TRINIDAD, et al., Plaintiffs, v. PRET A MANGER (USA) LIMITED, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

962 F.Supp.2d 545

Manuel A. TRINIDAD, et al., Plaintiffs,

v.PRET A MANGER (USA) LIMITED, et al., Defendants.

No. 12 Civ. 6094(PAE).

United States District Court, S.D. New York.

July 11, 2013.

C.K. Lee, Lee Litigation Group, PLLC, New York, NY, for Plaintiffs.

Michael J Gray, Wendy C. Butler, Kristina Ann Yost, Jones Day, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Manuel Trinidad brings this action on behalf of himself and similarly situated persons, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and New York Labor Law (“NYLL”) §§ 191 et seq. Trinidad alleges that a number of stores owned by Pret A Manger (USA) Limited (“Pret”) in New York City maintained unlawful employment practices, involving failure to adequately compensate employees for off-the-clock and overtime work, and violations of tip-pooling regulations.

Plaintiffs move for conditional certification of a class under the FLSA, and court-facilitated notice to all non-exempt Pret “Team Members” employed by Pret in New York City stores during the last six years. Pret opposes that motion, and moves to strike declarations filed by four plaintiffs. For the reasons that follow, the Court (1) denies Pret's motion to strike; (2) grants conditional certification for plaintiffs' claims of overtime violations, limited to six Pret locations in New York City, but denies certification based on allegations of non-overtime off-the-clock work and alleged tip-pooling violations; and (3) approves court-facilitated notice for the six Pret locations by means of certified mail to prospective class members and non-public posting of notice in the designated Pret locations.

I. Background¹A. Factual Allegations

Pret is a foreign corporation with 33 stores in New York City,² as well as locations in several other U.S. cities. All New York stores are wholly-owned subsidiaries of the parent corporation. Am. Compl. ¶¶ 6–8.

To date, five Plaintiffs have opted in to this action: Manuel Trinidad, Janckell Fermin, Jason Fermin, Prospero Trinidad, and Solange Troncoso. These plaintiffs were employed by Pret at various times between 2008 and 2012. Trinidad Decl. ¶ 1; Janckell Decl. ¶ 1; Jason Decl. ¶ 1; Prospero Decl. ¶ 1; Solange Decl. ¶ 1.

Pret hires its employees into a general “Team Member” position, cross-training Team Members for both front-of-house and kitchen duties. Anders Dep. 28–29. Team Members are often called to work on Pret's cash registers during busy periods, and kitchen employees are often charged with running food to stock food-display cases, known as “langars.” Id. at 31–32, 92–93, 129, 133. As set forth in the Complaint and in each plaintiff's declaration, plaintiffs allege that Pret adopted the following illegal policies: (1) failure to pay the proper overtime premium under the FLSA; (2) failure to pay proper tip compensation due to an invalid tip-pooling policy; (3) failure to pay for off-the-clock work; (4) and failure to comply with various provisions of the NYLL. Am Compl. ¶¶ 25–31. The allegations of the individual plaintiffs, derived from their declarations and depositions, are summarized below.

1. Manuel Trinidad

Manuel Trinidad worked for Pret between March 2010 and June 2010. Trinidad Decl. ¶ 1. He was hired as a sandwich maker and cashier at the store located at 1200 Avenue of the Americas. Id. In his declaration, Trinidad also attested to having worked at stores located at 287 Madison Avenue and 30 Rockefeller Center. Id. During his deposition, Trinidad listed various additional Pret stores at which he worked, including: 51st Street and 6th Avenue, 48th Street and Madison Avenue, 38th Street and 7th Avenue, 56th Street and 6th Avenue, and 53rd Street and Lexington Avenue. Trinidad Dep. 35, 198–203.

Trinidad alleged that between March 2010 and May 2010, he worked nine hours per day, five days a week, for a total of 45 hours per week. Am. Compl. ¶ 24. In June 2010, Trinidad alleged, he worked seven hours per day for five days per week, for a total of 35 hours per week. Id. In his deposition, he added that although he was regularly scheduled to work from 12 p.m. to 9 p.m., he often worked past 9 p.m. Trinidad Dep. 55–56.

In his declaration, Trinidad attested that he was not compensated for all hours worked, nor paid the appropriate overtime premium. Trinidad Decl. ¶ 2. He also attested that he observed that all cashiers were required to share tips with non-cashier employees, “even when such employees never served customers.” Id. ¶ 5. He attested that he was required to arrive 30 minutes before his scheduled start time, and that he “frequently” worked past his scheduled end time, but was never compensated for this time. Trinidad Supp. Decl. ¶¶ 1–2.

2. Janckell Fermin

Janckell Fermin worked for Pret between August 2009 and June 2011. Janckell Decl. ¶ 1. He initially worked exclusively in the kitchen, but in February 2010 he began to work also as a cashier. Id. He began his employment at the store located at 880 Third Avenue, but, in February 2010, transferred to the store located at 630 Lexington Avenue. Id.; Janckell Dep. 26, 36–37.

In his declaration, Janckell attested that he was not compensated for all hours worked, nor paid the appropriate overtime premium. Janckell Decl. ¶ 2. He attested that his regular schedule was Monday through Friday from 1 p.m. to 9 p.m., with a 30–minute lunch break, but that he “frequently” worked through lunch and was not compensated for lunch-break work. Id. ¶ 3. He further attested that he was required to arrive early to his shift, and “frequently” worked past his scheduled end time by 30 minutes to two hours, but was required to clock in and out using only his scheduled hours and was thus not compensated for this time. Id. ¶¶ 4–5. He also attested that he had observed that all cashiers were required to share tips with non-cashier employees, “even when such employees never served customers.” Id. ¶ 8. He also attested that he shared in the tip pool even when he had not served customers during his shift. Id. ¶ 9.

3. Jason Fermin

Jason Fermin worked as a cashier for Pret between November 2010 and June 2011. Jason Decl. ¶ 1. During his employment at Pret, Jason worked at stores located at 47th Street and Lexington Avenue and 54th Street and Lexington Avenue. Id.; Jason Dep. 24, 31.

In his declaration, Jason asserted that he was not compensated for all hours worked, nor paid the appropriate overtime premium. Jason Decl. ¶ 2. He stated that his regular schedule was Monday, Tuesday, Wednesday, and Friday from 4 p.m. to 9 p.m., with no scheduled break, but that he “frequently” worked “in excess of six hours per day” with no break. Id. ¶ 3. He further attested that he was required to arrive early to his shift, and “frequently” worked past his scheduled end time by anywhere between 1.5 and three hours, but was required to clock in and out using only his scheduled hours and was thus not compensated for this time. Id. ¶¶ 4–6. He attested that during his first few days at work he signed in and out based on his actual working time, but that a Team Member Trainer named Jennifer informed him that company policy was to sign in and out based on scheduled working hours. Id. ¶ 5. Nevertheless, Jason attested that at times he would clock out using his actual end time, but still would not be paid accordingly. Id. ¶ 6. He also attested that he had observed that all cashiers were required to share tips with non-cashier employees, “even when such employees never served customers.” Id. ¶ 9.

4. Prospero Trinidad

Prospero Trinidad worked as a Team Member for Pret between October 2009 and April 2010. Prospero Decl. ¶ 1. He worked primarily as a cashier, but also did occasional work in the kitchen. Id. In his declaration, Prospero attested to having worked at stores located at 50th Street and 7th Avenue, 32nd Street and Park Avenue, 42nd Street and 6th Avenue, 48th Street and Madison Avenue, and 16th Street and Broadway. Id. In his deposition, he also testified to having worked at additional stores located at 41st Street and Lexington Avenue, 54th Street and 5th Avenue, and Rockefeller Center. Prospero Dep. 126, 131, 138–39.

In his declaration, Prospero attested that he was not compensated for all hours worked, nor paid the appropriate overtime premium. Prospero Decl. ¶ 2. He attested that his regular schedule was Monday to Friday from 6:30 a.m. to 2:30 p.m., with a 30–minute lunch break, but that he would work through lunch when his store was busy. Id. ¶ 3. He further stated that he was required to arrive early to his shift, and worked past his scheduled end time “on a daily basis” by one to 1.5 hours, but was required to clock in and out using only his scheduled hours and was thus not compensated for this time. Id. ¶¶ 3–5. He attested that, on occasion, he would clock out using his actual end time, but his store manager would cross out the extra time, so he was not paid for the time he actually worked. Id. ¶ 5. He also attested that he saw a store manager named Roblyn shredding the sign-in sheet. Id. He also attested that he had observed that all cashiers were required to share tips with non-cashier employees, “even when such employees never served customers.” Id. ¶ 8.

5. Solange Troncoso

Solange Troncoso worked as a Team Member for Pret from May or July 2008 to January 2012. Solange Decl. ¶ 1; Solange Dep. 9. She primarily worked as a cashier, but occasionally worked in the kitchen as well. Solange Decl. ¶ 1. In her declaration, Solange attested to having worked at stores located at 39th Street and Broadway, 54th Street and Park Avenue, 53rd Street and 3rd Avenue, and 41st Street and Lexington Avenue. Id. In her deposition, she also testified to having worked “occasionally” at three other locations.³ Solange Dep. 76.

In her declaration, Solange attested that she was not compensated for all hours worked, nor paid the appropriate overtime premium. Solange ...