- From LexisNexis® Mealey’s™ Daily Legal News.
A New York federal judge on June 11 conditionally certified a class of restaurant chain tipped employees who claim that they were required to omit any overtime hours when entering their hours into the time-keeping system, finding that all the minimum requirements for certification were met (Michael Guttentag, et al. v. Ruby Tuesday, Inc., et al., No. 12-3041, S.D. N.Y.; 2013 U.S. Dist. LEXIS 82350).
Michael Guttentag and Steven Reeves were both employed by Ruby Tuesday Inc.
Guttentag worked as a food runner and bartender at a restaurant in New York. Reeves worked as a bartender at a Florida restaurant and a server in a New York restaurant. Guttentag and Reeves filed suit against Ruby Tuesday and some unnamed defendants, alleging that Ruby Tuesday has a nationwide policy requiring the tipped staff (bartenders, servers and food runners) to not enter any of their overtime hours into Ruby Tuesday’s time-keeping system. The plaintiffs seek all unpaid wages pursuant to the Fair Labor Standards Act (FLSA) and New York and Florida state laws.
Guttentag and Reeves moved for conditional certification of a nationwide class consisting of “[a]ll current and former Tipped Employees who have worked for Defendant within the statutory period covered by this Complaint and elect to opt-in to this action pursuant to the FLSA.”
Conditional Cert Granted
Judge Harold Baer Jr. granted the motion. “Here, the minimal factual burden to support a conditional certification has been met. For one, Plaintiffs have shown that Defendant maintains uniform job descriptions for all bartenders, servers, and food runners, as well as uniform task checklists for servers, bartenders, and managers, throughout its restaurants. But even more significant is the evidence that Defendant has a companywide policy of prohibiting overtime work, a centralized timekeeping system that allows Defendant to track each restaurant’s overtime record, and a uniform bonus policy that applies to all restaurant managers, which considers, among others, the restaurant’s labor costs. . . . Plaintiffs have also identified Defendant’s centralized system of staffing all of its restaurants using the same software program and updating the staffing plans on a quarterly basis at the level of its regional directors, rather than at the level of individual restaurants. . . . Lastly, the individual declarations and depositions of Plaintiffs and opt-in Plaintiffs cover the practice of ‘off the clock’ work in eight different restaurants located in four different states,” he wrote.
Judge Baer denied Ruby Tuesday’s principal argument, that the plaintiffs’ proposed nationwide class is too large and diverse. “Plaintiffs’ declarations and depositions cover at least eight store locations in four states. But more importantly, such evidence is complemented by both documentary evidence and depositions that support Plaintiffs’ contention that Defendant has a nationwide policy that at least is reticent to pay for overtime work by its employees, as well as a centralized staffing and labor budget management system. At this stage, nothing more is required,” he wrote.
Adam R. Gonnelli, Christopher Marlborough and Lubna M. Faruqi of Faruqi & Faruqi in New York; Gerald D. Wells III and Robert J. Gray of Faruqi & Faruqi in Jenkintown, Pa.; and Steven S. Siegel of Cronin & Byczek in Lake Success, N.Y., represent the plaintiffs.
John E. MacDonald in Princeton, N.J., James M. Coleman in Lawrenceville, N.J. and Maureen R. Knight in Fairfax, Va., all of Constangy, Brooks & Smith, represent Ruby Tuesday.