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Frebes v. Mask Restaurants, LLC

United States District Court, N.D. Illinois, Eastern Division

May 8, 2014

JAMES FREBES, MICHAEL ARGEROPOULOS and MARC HOCHMUTH, Individually, and on behalf of all others similarly situated, Plaintiffs,


MARVIN E. ASPEN, District Judge.

Plaintiffs James Frebes, Michael Argeropoulos, and Marc Hochmuth, individually, and on behalf of themselves and others similarly situated (hereinafter "Plaintiffs"), sue Defendants Mask Restaurants, LLC, d/b/a Tavern at the Park restaurant, Peter de Castro, Jr., and Donny de Castro (hereinafter "Defendants") for violations of Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"). Plaintiffs allege that they received an incorrect, sub-minimum wage rate due to Defendants' invalid use of a tip pool. (Compl. ¶¶ 49-51.) Specifically, Plaintiffs allege that tipped employees were required to pay a percentage of their tips to Defendants, who then distributed a portion of those tips to employees who did not regularly receive tips, in violation of the FLSA. ( Id. ¶¶ 50-51.)

Plaintiffs have moved, pursuant to 29 U.S.C. § 216(b), to conditionally certify the suit as a collective action and to authorize their proposed class notice. (Dkt. No. 36.) Additionally, Plaintiffs ask that we order Defendants to produce a computer-readable data file containing the names, addresses, telephone numbers, and email addresses of the FLSA class, and order the posting of notice at a location in Defendants' restaurant where members of the class are likely to view it. (Mem. at 13.) Finally, Plaintiffs seek authorization to send notice at their expense through U.S. First Class mail and to e-mail all members of the FLSA class "to inform them of their right to opt-in to the lawsuit." (Mem. at 14.) For the reasons discussed below, we grant the motion for class certification. We grant Plaintiffs' requests for proposed notice in part and deny them in part, for the reasons discussed below.


The named Plaintiffs and the persons they represent are tipped employees of Defendants who work or have worked as servers, bartenders, and bussers. (Mem. at Ex. J., Pls.' Proposed Notice.) They allege that Defendants failed to comply with tip-credit provisions of the FLSA and the Illinois Minimum Wage Law ("IMWL"). (Mem. at 2.) Plaintiffs allege that Defendants violated the FLSA, which allows employers of "tipped employees" to pay less than minimum wage if employers comply with the statute's tip-credit provision. 29 U.S.C. § 203(m). The FLSA authorizes a tipping pool if tips are distributed among employees who customarily receive tips. Id. Under the FLSA, "[t]ipped employee' means any employee engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips." 29 U.S.C. § 203(t).

Plaintiffs claim that Defendants violated the provisions by requiring their servers, bussers, and bartenders to participate in a tip pool that directed a portion of the tips to non-tipped employees, specifically, "food runners." (Compl. ¶ 2.) Plaintiffs allege that some of these food runners were merely "food expediters" who "performed all their duties in the kitchen and had no customer interaction." ( Id. ) Plaintiffs plead that both "food runners" and what they consider "food expediters" do not qualify as tipped employees for satisfying the tipping pool requirements under the FLSA and IMWL. ( Id. )


Plaintiffs move for conditional class certification and for court-facilitated notice to potential class members pursuant to 29 U.S.C. § 216(b), on behalf of all servers, bartenders, and bussers employed by Defendants from May 9, 2010 to the present date.[1] (Mem. at 13.) According to Defendants, we should not certify the class because Plaintiffs are not sufficiently similarly situated.

A. Legal Standard

We first consider whether Plaintiffs are similarly situated for the purposes of certifying a collective action. "Courts in this district have adopted a two-step process for determining whether an FLSA suit should proceed as a collective action." Cramer v. Bank of Am., N.A., No. 12 C 8681, 2013 WL 6507866, at *1 (N.D. Ill.Dec. 12, 2013) (citing Kelly v. Bank of Am., No. 10 C 5332, 2011 WL 4526674, at *2 (N.D. Ill. Aug. 30, 2011); Betancourt v. Maxim Healthcare Servs., Inc., No. 10 C 4763. 2011 WL 1548964, at *4 (N.D. Ill. Apr. 21, 2011)). The first step requires a group of plaintiffs to make a modest factual showing that the members of the class are similarly situated, and that they were "injured by a common policy or plan that violated the law." Cramer, 2013 WL 6507866, at *1; Betancourt, 2011 WL 1548964, at *4. This showing is a lenient standard. Cramer, 2013 WL 6507866, at *1. "Plaintiffs do not have to show that the potential class members have identical positions for conditional certification to be granted, " and Plaintiffs can have different "job titles, functions, or pay" yet still be similarly situated. Jirak v. Abbott Labs., Inc., 566 F.Supp.2d 845, 848-49 (N.D. Ill. 2008) (emphasis in original).

Because the "similarly situated" standard is liberal, it "typically results in conditional certification of a representative class." Rottman v. Old Second Bancorp, Inc., 735 F.Supp.2d 988, 990 (N.D. Ill. 2010) (quoting Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 n.2 (11th Cir. 2003)); Smallwood v. Illinois Bell Tel. Co., 710 F.Supp.2d 746, 752 n.4 (N.D. Ill. 2010). At the second step, after discovery, the court's inquiry becomes more stringent. At that point, the court will reevaluate the class and determine whether it should "proceed to trial on a collective basis." Cramer, 2013 WL 6507866, at *2.

"Although the inquiry is undemanding, the court is under no obligation, as it would be on a motion to dismiss, to accept the plaintiff's allegations as true.'" Rottman, 735 F.Supp.2d at 990 (quoting Hundt v. DirectSat USA, LLC, No. 08 C 7238, 2010 WL 2079585, at *2 (N.D. Ill. May 24, 2010)). With these standards in mind, we now turn to the record before us, including Defendants' and Plaintiffs' briefs and exhibits. Rottman, 735 F.Supp.2d at 990; Hundt, 2010 WL 2079585, at *2.

B. Analysis

Here, Plaintiffs seek to be conditionally certified as a class of regularly tipped employees consisting of bartenders, bussers, and servers employed by Defendants from May 9, 2010 to the present. (Mem. at 3.) Plaintiffs assert that they are part of a similarly situated class in that they are "required to participate in a mandatory, involuntary, and invalid tip pool, whereby servers, bartenders and bussers must pay a percentage of their tips to Defendants." ( Id. at 6.) Plaintiffs allege that Defendants then distributed "that portion of their tips to various employees, including employees titled food runners, ' who do not customarily and regularly receive tips." ( Id. at 6-7.)

Defendants argue that Plaintiffs are not similarly situated because they have different job duties and responsibilities. (Resp. at 6.) They also contend that Plaintiffs are not similarly situated because they have different pay rates and have different contributions to the tip pool ...

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