The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the plaintiff's Motion for an Order to Authorize Notice to Similarly Situated Persons (Doc. 39) and its memorandum in support (Doc. 40). The defendant, Great American Real Fast Food, Inc., ("Great American") filed a memorandum in opposition (Doc. 43) to which the plaintiff, Lori Curless, filed a reply (Doc. 45).
The plaintiffs here are tipped employees, servers, at Great American Real Food Fast's restaurants. Curless alleges violations of the Fair Labor Standards Act ("FLSA") and the Illinois Minimum Wage Law in her complaint (Doc. 2). In Count I, Curless alleges Great American violated the FLSA by paying Curless tipped-employee minimum wage without complying with the requirements of the FLSA by having the employees perform non-tipped work without proper compensation. 29 U.S.C. §203(m). Curless further alleges Great American failed to inform Curless of the tip credit subsection of the FLSA and regularly required her to perform non-tipped work without paying minimum wages for this work. Curless states Great American regularly required its 265 tipped employees in their twelve restaurants around the United States to perform non-tipped work without compensating pay accordingly. In Count II, Curless alleges the same conduct also violated the Illinois Minimum Wage Law but not as a class action. 820 ILCS 105/1 et seq.
Curless filed the present motion seeking to be permitted to issue Notice of the Lawsuit to similarly situated employees, use the form of Notice and Consent submitted, and to issue the notice through the mail, employee pay envelopes, and a workplace posting at each of Great American's restaurants (Docs. 39, 40). In support of her motion, Curless argues all the current opt-in plaintiffs and potential opt-in plaintiffs are tipped employees performing the same jobs and same job duties at Great American's restaurants. She further argues all were paid in the same manner and subjected to the same practices that are alleged to violate the FLSA. Curless now seeks to conditionally certify a class of current and former tipped employees who worked in any Great American restaurant in the United States since April 15, 2007. Currently, there are opt-in plaintiffs from each of Great American's Illinois restaurants and from one of the Ohio restaurants who claim they were required to do similar additional non-tipped duties while being paid a tipped wage. Curless also argues the statute of limitations should be equitably tolled from April 15, 2007 (the filing of the complaint) because Great American refused to provide information on class members.
Great American argues Curless's motion should be denied because she has failed to present evidence of a national uniform practice or policy which violated the FLSA (Doc. 43). Great American focuses on the declarations of the plaintiffs to show that the work varies from restaurant to restaurant and therefore would require individual analysis of each potential plaintiff. Great American also points out only one opt-in plaintiff is from outside of Illinois. It goes on to argue, however, that class certification for just Illinois is still not appropriate because the jobs differed at individual restaurants and some restaurants required more or less side-work (work such as cleaning, stocking, preparing dishes) to be completed. Great American further argues thirteen employees from Princeton have joined and the lack of opt-in plaintiffs from other Illinois locations (two opted-in from Mt. Vernon, two from Marion, and one from McLean) indicate there is only a problem in Princeton, IL. On the issues equitable tolling and the notice form to be mailed, Great American has asked to be allowed to file supplemental briefs but briefly states equitable tolling is not applicable because it did not act in bad faith.
In her reply, Curless argues Great American has conflated the issues by focusing on the individual non-tipped daily activities of each class member. Her central argument is that she has produced substantial evidence Great American "maintained a wide-spread, systematic practice of utilizing tipped employees, who were paid a sub-minimum wage, to perform non-tipped work." (Doc. 45). Curless also states that if the Court were to allow for additional briefing on the issue of equitable tolling, she would rather take the Defendant's proposed date of August 23, 2010 than have an additional delay of another briefing schedule.
II. Conditional Certification 1. Standard
The FLSA provides that an action to recover liability for violations of the "may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). In order to be included in an action brought on behalf of a group of similarly situated employees, a claimant must affirmatively opt into the action. Id. A collective action allows FLSA plaintiffs "the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged [unlawful] activity." Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989) (age discrimination case implementing FLSA enforcement mechanism).
Courts have developed a two-step process to implement a plaintiff's right under § 216(b) to bring an action on behalf of others similarly situated to him. See, e.g., Petersen v. Marsh USA, Inc., 2010 WL 5423734, at *2 (N.D. Ill. Dec. 23, 2010) (citing Russell v. Illinois Bell Tel. Co., 575 F. Supp. 2d 930, 933 (N.D. Ill. 2008)). At the first step, sometimes called the notice stage, a plaintiff is required to show that there are "similarly situated employees who are potential claimants." Smallwood v. Illinois Bell Tel. Co., 710 F. Supp. 2d 746, 750 (N.D. Ill. 2010). A plaintiff can do this by making a "modest factual showing" that he and other potential plaintiffs were victims of a common unlawful policy or plan. Id. (quoting Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003)). "[A] plaintiff need only demonstrate a factual nexus that binds potential members of a collective action together." Gambo v. Lucent Techs., Inc., 2005 WL 3542485, *4 (N.D. Ill. Dec. 22, 2005).
At this stage, the Court does not resolve factual disputes, decide substantive issues going to the merits or make credibility determinations. Marshall v. Amsted Indus., Inc., 2010 WL 2404340, * 5 (S.D. Ill. June 16, 2010). If a plaintiff succeeds at the notice stage, the Court will conditionally certify the collective action and will authorize notice of the action to potential plaintiffs who may want to join. Smallwood, 710 F. Supp. 2d at 750. The standard at the notice stage is lenient, Russell, 575 F. Supp. 2d at 933, and courts have broad discretion to implement the notice provisions of § 216(b). Hoffman-La Roche, 493 U.S. at 169.
The second step occurs after the opt-in period and further discovery. There, at a defendant's request, the Court asks "whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." Smallwood, 710 F. Supp. 2d at 750 (internal quotations omitted). If there is not sufficient similarity, the Court may reconsider its decision to allow the case to proceed as a collective action and dismiss the opt-in plaintiffs' claims without prejudice. Russell, 575 F. Supp. 2d at 933; Marshall, 2010 WL 2404340 at * 5.
At this stage, Curless is only required to show that there are "similarly situated employees who are potential claimants." Smallwood, 710 F. Supp. 2d at 750.The declarations submitted by Curless and the other plaintiffs show a substantial similarity in the extra work that was required to be performed. Great American argues the work varied by location, however, Curless' claim is more than 20% of the work performed was non-tipped work which was not properly compensated; the claim does not argue each server was required to do the exact same non-tipped work. Further, at this stage, the Court "does not resolve factual disputes, decide substantive issues going to the merits or make credibility determinations." Marshall, 2010 WL 2404340 at * 5. The Court believes there is sufficient similarity between the claims to create a common nexus between the plaintiffs.
The Court next examines whether the potential plaintiffs were victims of a common policy or plan. Great American argues there was not a common policy because the restaurants determined their own requirements for non-tipped work based upon the restaurants' needs rather than Great American setting the work for each restaurant. The Court does not find this argument sufficiently convincing to defeat the requirement of a common policy. Great American is the owner of all of the restaurants and it is alleged their policy is to require servers to perform non-tipped work. The fact that each restaurant determined what the details of the work would be does not defeat the alleged common plan or policy at this point. In Flores, the court held there was not a common policy or plan as required when only two employees out of fifty (less than 2%) were able to allege a violation of the FLSA. 289 F. Supp. 2d at 1046. In the current matter, eighteen employees from multiple locations have opted in from approximately 265 (roughly 7%) potential plaintiffs, or almost four times as many as in Flores.
Curless has attached the Great American Real Food-Fast Employee Handbook which discusses some of the work waitresses must do such as cleaning windows, vacuuming, etc. There are also fifteen affidavits of servers being required to do substantial non-tipped work. Although Great American questions the accuracy of the affidavits, this is not the time to "resolve factual disputes, decide substantive issues going to the merits or make credibility determinations." Marshall, 2010 WL ...