United States District Court, S.D. Indiana, Indianapolis Division
v. JONES GROUP, AVON WINGS, LLC doing business as BUFFALO WILD WINGS, BW WINGS MANAGEMENT LLC, COLDWATER WINGS, LLC, COLONIAL WINGS, LLC, COOL WINGS, LLC, DANVILLE WINGS II, LLC, GREENCASTLE WINGS, LLC, MECHANICSVILLE WINGS, LLC, SHELBYVILLE WINGS, LLC, and VINCENNES WINGS, LLC Defendants.
BAKER, UNITED STATES MAGISTRATE JUDGE
order comes on the heels of the District Judge's denial
of Defendants' motion to dismiss. [Filing No. 77.] In
light of this denial, and for reasons explained below, the
Magistrate Judge finds it is appropriate to conditionally
certify and notify potential class members about this suit.
In total, four motions currently pend before the Magistrate
Judge: Plaintiffs' motion for step-one notice [Filing No.
27], Defendants' motion to submit supplemental authority
[Filing No. 75], Plaintiffs' motion to toll the statute
of limitation [Filing No. 62], and Plaintiffs' motion to
compel [Filing No. 56]. Each motion is addressed below.
brought this action against Defendants for allegedly
violating the Fair Labor Standards Act. In short, Plaintiffs
allege that Defendants paid them an hourly tip-wage of $2.13,
but required them to perform substantial amounts of
non-tipped work and pay for shortages and walkouts from their
tips. Defendants filed a motion to dismiss in response to
Plaintiffs' complaint. While that motion was pending,
Plaintiffs filed the present motion for step-one notice.
Plaintiffs wish to pursue this case as a collective action,
and seek conditional certification to notify potential
Plaintiffs about this suit and allow them to opt in.
Defendants reasonably requested that the Magistrate Judge
postpone ruling on the motion for step-one notice until the
District Judge ruled on Defendants' motion to dismiss.
The Magistrate Judge obliged.
brief delay, the District Judge denied Defendants' motion
to dismiss, finding that Plaintiffs' claims are viable.
The delay was primarily to allow the District Judge an
opportunity to consider the recent decision of Schaefer
v. Walker Bros. Enterprises, Inc., ___F.3d___, 2016 WL
3874171, *2 (7th Cir. 2016), which recognized the Department
of Labor's interpretation of the Field Operations
Handbook that a tipped employee may be paid a tip-wage,
unless performing dual jobs or unrelated non-tipped work more
than 20 percent of the time. [Filing No. 66.] The Schaefer
court found that the majority of the duties complained about,
such as making coffee and cleaning tables, were related. For
time spent performing the unrelated duties, wiping burners
and woodwork and dusting picture frames, the Schaefer court
held that the tipped employees may be paid a tip-wage because
their time spent on that work was “negligible, ”
and well under 20 percent of a shift. Schaefer, 2016 WL
3874171, at *3.
District Judge noted that Schaefer did not clarify whether
the Department of Labor's 20 percent rule for unrelated
work is controlling. [Filing No. 77, at ECF p. 16-18.]
However, because a 20 percent threshold for unrelated work is
a reasonable quantifier, the District Judge denied
Defendants' motion to dismiss. The District Judge
explained that unlike the plaintiffs in Schaefer, Plaintiffs
here allege that they spend 50 percent of their time as
servers and 35-40 percent of their time as bartenders,
performing unrelated non-tipped work while earning a
District Judge's denial indicates that the pleadings
sufficiently allege a violation of FLSA because the alleged
time spent on unrelated non-tipped work is more than
negligible and above the 20 percent threshold. With this
decision in hand, the Magistrate Judge turns to whether
conditional certification for step-one notice is appropriate.
ask the Court to conditionally certify their class and
authorize Plaintiffs' counsel to notify them about this
action. Plaintiffs' proposed class is comprised of
“current and former employees of Defendants'
Buffalo Wild Wings restaurants who were paid sub-minimum
wages in the last three years.” [Filing No. 27.] Plaintiffs
argue these individuals are “similarly situated,
” and submit a proposed notice for Court approval.
[Filing No. 28-10.] Defendants argue that Plaintiffs'
proposed class is not similar enough to warrant conditional
certification. Alternatively, Defendants argue that the
proposed notice should be rejected and access should be
limited so that participation is not encouraged. As explained
below, conditional certification is appropriate and the
step-one notice is approved with one addition.
Similarly situated individuals
moved pursuant to section 16(b) of the FLSA to conditionally
certify this suit as a collective action and to authorize
class notice. Section 16(b) permits a collective action
against an employer for unpaid minimum wages “by any
one or more employees for and on behalf of himself or
themselves and other employees similarly situated.” 29
U.S.C. § 216(b) (2012); see Alvarez v. City of
Chicago, 605 F.3d 445, 448 (7th Cir. 2010) (“The
[FLSA] gives employees the right to bring their FLSA claims
through a ‘collective action' on behalf of
themselves and other ‘similarly situated'
employees.”). The appropriateness of conditional
certification therefore rests on whether Plaintiffs are
“similarly situated” to their proposed class.
the FLSA nor the Seventh Circuit has set forth criteria for
determining whether employees are similarly situated.
Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d
988, 990 (N.D.Ill. 2010). However, courts in this district
and around the country have settled on a two-step procedure
for dealing with collective actions under the FLSA.
Id.; Carter v. Indianapolis Power & Light
Co., No. IP-02-cv-01812-SEB-VSS, 2003 WL 23142183, *3
(S.D. Ind. 2003). The first step allows the Court to analyze
the pleadings and any affidavits to determine whether notice
should be given to similarly situated individuals-a
conditionally certified class. Carter, 2003 WL 23142183, at
*3.The second step allows the Court to determine whether that
class should be decertified or restricted because various
potential class members are not in fact similarly situated.
one, the Court decides whether the proposed class is
similarly situated. The Court only requires Plaintiffs to
make a minimal threshold showing that they are similarly
situated to the employees on whose behalf they are seeking to
pursue this claim. Carter, 2003 WL 23142183, *3; see also
Frebes v. Mask Restaurants, LLC, No. 13 C 3473, 2014
WL 1848461, at *2 (N.D.Ill. 2014) (“the
‘similarly situated' standard is liberal”);
Rottman, 735 F.Supp.2d at 990 (“courts have interpreted
the ‘similarly situated' requirement
leniently”); Howard v. Securitas Security Services,
USA Inc., No. 08 C 2746, 2009 WL 140126, at *5 (N.D.Ill.
2009) (“the court looks for no more than a
‘minimal showing' of similarity”). Because
the similarly situated standard is liberally applied, a
step-one inquiry generally results in the conditional
certification of a class. Rottman, 735 F.Supp.2d at 990.
standard is lenient at step one because the final
determination of whether collective action members are
similarly situated occurs at step two. Carter, 2003 WL
23142183, *3. (citing Champneys v. Ferguson Enterprises,
Inc. 2003 WL 1562219, *4 (S.D. Ind. 2003)). At the
second step, the Court's inquiry becomes more stringent.
Frebes, 2014 WL 1848461, at *2. At that point, discovery has
taken place and the Court is in a better position to
reevaluate the class to determine whether it should
“proceed to trial on a collective basis.”
argue they are similarly situated to current and former
servers and bartenders of Defendants' Buffalo Wild Wings
restaurants who were paid a tip-wage in the last three years.
As support, Plaintiffs provide eight declarations that
demonstrate within the past three years, Defendants have paid
servers and bartenders at their restaurants a tip-wage even
when performing job duties that do not allow them to earn
tips. [Filing No. 28-1, at ECF p. 2; Filing No. 28-2, at ECF
p. 2-3; Filing No. 28-3, at ECF p. 2; Filing No. 28-4, at ECF
p. 2; Filing No. 28-5, at ECF p. 2; Filing No. 28-6, at ECF
p. 2; Filing No. 28-7, at ECF p. 2; Filing No. 28-8, at ECF
p. 2.] One declaration provides copies of checklists
containing additional duties allegedly enforced by
management, requiring servers and bartenders to perform
non-tipped duties. [Filing No. 28-5, at ECF p. 8-17.]
Declarants estimate that they spend 30 to 60 percent of their
time performing non-tipped work. [Filing No. 28-1, at ECF p.
7 (50%; 35-40%); Filing No. 28-2, at ECF p. 7 (50%; 40%);
Filing No. 28-3, at ECF p. 6 (50%); Filing No. 28-4, at ECF
p. 5 (50%); Filing No. 28-5, at ECF p. 6 (40%); Filing No.
28-6, at ECF p. 6 (50-60%); Filing No. 28-7, at ECF p. 6
(30-35%); Filing No. 28-8, at ECF p. 6 (40-50%).] Declarants
also allege that servers and bartenders are required to
reimburse restaurants from their tips for customer walkouts
and cash drawer shortages. [Filing No. 28-1, at ECF p. 7;
Filing No. 28-2, at ECF p. 7; Filing No. 28-3, at ECF p. 6;
Filing No. 28-4, at ECF p. 6 Filing No. 28-5, at ECF p. 6;
Filing No. 28-6, at ECF p. 6; Filing No. 28-7, at ECF p. 6;
Filing No. 28-8, at ECF p. 6.]
complaint essentially makes the same allegation: that
Defendants pay servers and bartenders a tip-wage “even
when it requires those employees to perform non-tipped work
that is unrelated to their tipped occupation.” [Filing
No. 1, at ECF p. 3.] The complaint also alleges that
Defendants require servers and bartenders to pay Defendants
“from their tips for customer walkouts and cash drawer
shortages.” Id. In the complaint, Plaintiffs
list “sweeping, mopping, vacuuming, and deck brushing
restaurant floors; washing glasses, cups, platters, or
silverware; slicing fruit; portioning dressings; cleaning the
restaurant; and rolling silverware” as the unrelated
non-tipped duties. Id. Furthermore, the complaint
alleges that tipped employees must “perform [related]
non-tipped work for more than 20 percent of their time worked
each workweek.” Id. The complaint also alleges
the enforcement of laminated checklists of non-tipped duties
servers and bartenders are required to perform. Id.
Plaintiffs' complaint alleges that Defendants train all
new managers at their Avon restaurant before assigning them
to other restaurants. [Filing No. 1, at ECF p. 14.]
Plaintiffs allege that with this uniform training, all
servers and bartenders at all of Defendants' restaurants
are required to perform the same non-tipped work.
Id. Declarants make parallel allegations-that other
servers and bartenders experience the same treatment at
Defendants' other Buffalo Wild Wings restaurants. [Filing
No. 28-1, at ECF p. 7; Filing No. 28-2, at ECF p. 7; Filing
No. 28-3, at ECF p. 6; Filing No. 28-4, at ECF p. 6; Filing
No. 28-5, at ECF p. 6.; Filing No. 28-6, at ECF p. 6; Filing
No. 28-7, at ECF p. 6; Filing No. 28-8, at ECF p. 6.]
According to the declarants, servers and bartenders earn a
tip-wage and are required to vacuum and mop restaurant
floors, clean bathrooms, clean windows, wash walls and
baseboards, dust televisions, carry trash bags to the
dumpster, sift through trash for silverware, slice fruit and
vegetables, and wash silverware, platters, trays, and cups.
[Filing No. 28-1, at ECF p. 4-6; Filing No. 28-2, at ECF p.
4-6; Filing No. 28-3, at ECF p. 4-6; Filing No. 28-4, at ECF
p. 4-5; Filing No. 28-5, at ECF p. 5-6.; Filing No. 28-6, at
ECF p. 4-5; Filing No. 28-7, at ECF p. 3-4; Filing No. 28-8,
at ECF p. 4.]
on the declarations and the complaint, Plaintiffs demonstrate
they are similarly situated to the servers and bartenders at
Defendants' restaurants, on whose behalf they seek to
pursue this action. Plaintiffs make a modest factual showing
that current and former servers and bartenders of
Defendants' Buffalo Wild Wings restaurants were paid a
tip-wage while performing non-tipped work in the last three
years. Eight former servers and bartenders, who worked at six
of Defendants' restaurants in three states, submitted
sworn declarations alleging the same FLSA violations, which
track the same and similar non-tipped duties alleged in the
complaint. Enough similarities alleged in the complaint and
declarations exist that the Court finds Plaintiffs are
similarly situated to servers and bartenders that worked at
Defendants' restaurants in the past three years.
Accordingly, the Court conditionally certifies these
similarly situated individuals as a class of potential
Plaintiffs to receive step-one notice.
contend that just because these tipped employees allege they
spend more than 20 percent of their time engaged in unrelated
work does not mean Defendants have a uniform policy that
requires it. Defendants submit additional declarations and
point out that one server estimates that all servers and
bartenders spend less than 20 percent of their time on such
duties. [Filing No. 45-5, at ECF p. 20.] Specifically, she
states: “While I do not generally track how much time I
spend on my various duties which are unrelated to serving
guests, I would estimate that I spend less than 20% of my
time on duties. In my personal experience, the same also
applies to all the bartenders and servers.”
Id. Defendants argue this demonstrates that
Plaintiffs are not subject to a policy of performing
non-tipped work more than 20 percent of their time. However,
this declarant's assertion does not fly in the face of
Plaintiffs' assertions because it still reflects a policy
of requiring tipped employees to perform non-tipped work.
Like Plaintiffs, this declarant alleges that she earns an
hourly tip-wage. Id. at 18. Even though she does not
generally keep track of time, the declarant estimates
spending 90 minutes doing opening duties, 15 minutes doing
pre-guest duties, 30 minutes during shifts, and 30 to 60
minutes doing closing duties. Id. at 19-20. Like
Plaintiffs' declarants, she describes some of this work
as cutting fruit, filling condiments, wiping tables, filling
ice bins, carrying dishes, rolling silverware, and sweeping
the floor. Id. at 19. Depending on the day, she
alleges that she performs these duties faster or slower.
Id. at 20. Ultimately, when compared to
Plaintiffs' declarants, this declarant does not appear
dissimilar-aside from her estimated percentage.
difficult to imagine Defendants would maintain an express
policy that requires all servers and bartenders to spend more
than 20 percent of their time on non-tipped work. For now,
how much time servers and bartenders actually spend
completing non-tipped work is far from being answered. It is
reasonable to believe that some days, servers and bartenders
spend less time on non-tipped work than others. But these
issues go to the heart of the case, which is why step one is
so lenient. At this point, the facts are still developing and
discovery has yet to begin. Defendants' evidence
demonstrates that not all servers and bartenders have
identical experiences, but Plaintiffs' have shown that
many had similar experiences, spending more than 20 percent
of their time performing non-tipped work.
potential Plaintiffs opt in and the Court moves on to step
two, this issue can be revisited and the amount of time
employees spend and are required to spend on non-tipped work
can be more closely examined. At step one, however, the Court
does not need to resolve such issues to decide that these
servers and bartenders are similarly situated and conditional
certification is appropriate. Despite the different time