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Garcia v. Salamanca Group

March 24, 2008


The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow


Plaintiff Luis Garcia, on behalf of himself and all other persons similarly situated, has brought a suit under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., against defendants for failure to pay overtime wages for all time worked in excess of forty hours in any individual work week. Garcia also brings individual claims under the Illinois Wage Payment and Collection Act, 820 Ill. Comp. Stat. §115/1 et seq., for unauthorized deductions from his wages and for defendants' failure to compensate him for all time worked, as well as a claim under 29 U.S.C. §215 for retaliatory discharge.

Before the court is plaintiff's motion for an order authorizing notice to similarly situated persons pursuant to 29 U.S.C. §216(b). Specifically, plaintiff seeks an order (1) allowing the plaintiff's proposed opt-in notice to be issued to similarly situated persons, (2) approving the form of the proposed Notice and Consent forms, (3) approving the issuance of the Notice and Consent forms, and (4) requiring defendants to submit to plaintiff, within seven days of this order, a complete list of the names and addresses of all current and former employees employed by defendants within the last three years. For the following reasons, plaintiff's motion [#18] will be granted.


Defendants, The Salamanca Group, Ltd., Flash Express Westside, Inc., and Ulysses Salamanca, individually (collectively, "defendants"), operate four restaurants and a catering business in Chicago: Flash Taco, Flash Express Westside, Underdogg, Café Con Leche, and Andrea's Catering. According to Garcia's affidavit, which he submitted along with his motion, all five of these businesses are operated by Ulysses Salamanca or Liliana Salamanca. Ulysses Salamanca ("Salamanca") is responsible for hiring, firing, and disciplining employees, directing the work of employees, setting employee schedules, and performing the payroll functions for each of the restaurants. Garcia further states that the various restaurants operated by the defendants share supplies and inventory among locations and that the restaurants also share employees. For example, Garcia states that he has worked at all of the restaurants, as have other employees.

According to his affidavit, Garcia worked at the defendants' restaurants between about September 2001 and December 2002, and between about April 2003 and October 5, 2007. Prior to about January 2005, Garcia held the titles of "cook" and "food preparer." Garcia Aff. ¶ 10. In or around late January 2005, he was given the title of "Manager #2 Day Shift." Id. Despite these changes in job title, Garcia maintains that there were no material differences in job duties and that throughout his employment at defendants' restaurants, he never had the authority to hire or fire employees, discipline employees, interview new hires, set pay rates, or otherwise participate in decisions regarding employee compensation. Rather, Garcia states, he always performed the same job duties: he cooked, prepared food, performed general cleaning duties, and on occasion performed cashier duties.

According to Garcia's affidavit, while working at the defendants' restaurants, he and his fellow employees were subjected to the same common pay practices: defendants paid employees a set amount of wages for working a fixed number of hours per week. For example, Garcia states that between April 2003 and July 2004, he was paid $350 per week to perform sixty hours of work per week and that other employees were similarly paid a set amount for working a fixed number of hours. Garcia also claims that defendants required plaintiff and all the other employees to punch in fifteen minutes prior to their scheduled start time but that defendants did not pay them for the period between the time they punched in and their scheduled start time.

According to his affidavit, Garcia often worked six shifts per week and nine to ten hours per shift, routinely working in excess of forty hours per week, but was never paid overtime wages (i.e., at a rate of one and a half times his regular rate of pay) for time he worked in excess of forty hours per week. Garcia claims that defendants' other employees also worked in excess of forty hours per week and, likewise, were not paid overtime wages.


The FLSA expressly provides that an employee may bring a collective action on "behalf of himself . . . and other employees similarly situated" to recover unpaid overtime compensation.

29 U.S.C. § 216(b); see also Riddle v. National Sec. Agency, Inc., No. 05 C 5880, 2007 WL 2746597, at *5 (N.D. Ill. Sept. 13, 2007). A prospective member of the collective action may "opt-in" by filing a written consent form in the court where the action is brought; a person who does not opt-in is not part of the FLSA collective action and is not bound by the court's decision. Gambo v. Lucent Techs., Inc., No. 05 C 3701, 2005 WL 3542485, at *3 (N.D. Ill. Dec. 22, 2005).

Although a plaintiff in an FLSA collective action is not required to seek leave of the court prior to issuing notice of the lawsuit to prospective members, Heitmann v. City of Chicago, No. 04 C 3304, 2004 WL 1718420, at *2 (N.D. Ill. July 30, 2004), district courts in this district have regularly exercised discretionary authority over the notice process. Gambo, 2005 WL 3542485, at *3. The Seventh Circuit has determined that a district court may not prohibit a plaintiff from sending notice altogether. Id. (citing Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir. 1982)). Beyond that limitation, the Court of Appeals has not provided guidance on how a district court should exercise its discretion in the notice process under 29 U.S.C. § 216(b). Id.

A number of courts in this district have used a two-step method to determine whether a plaintiff is "similarly situated." See, e.g., id.; Persin v. CareerBuilder, LLC, No. 05 C 2347, 2005 WL 3159684, at *2 (N.D. Ill. Nov. 23, 2005). At the first step, "[a] named plaintiff can show that the potential claimants are similarly situated by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003) (citing Taillon v. Kohler Rental Power, Inc., No. 02 C 8882, 2003 WL 2006593, at *1 (N.D. Ill. Apr. 29, 2003)) (internal quotation marks omitted). "Once such a 'modest factual showing' has been made, a court may, in its discretion, order that notice be provided to putative collective action plaintiffs. The second step consists of the court determining whether the ...

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