United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY United States District Judge.
eight current and former servers at five restaurants operated
by Defendants, claim that Defendants violated federal and
state laws concerning the minimum wage, overtime pay, and
sick leave. In the instant motion,  Plaintiffs seek conditional
certification of an opt-in collective action under federal
and D.C. law. For reasons set forth below, the Court will
grant the motion in part and deny it in part. Conditional
certification will be granted, with the following
the putative class is limited to servers.
conditional certification is not granted with respect to the
following factual allegations: (a) Plaintiffs'
“homework” allegations; (b) Plaintiffs'
allegations regarding uncompensated time at pre-shift
meetings insofar as they relate to the Founding Farmers
Tysons restaurant in Virginia; and (c) Plaintiffs'
allegation that Defendants failed to aggregate hours worked
at different restaurants for overtime purposes.
the putative class will be divided into three sub-classes,
one for each of the three relevant jurisdictions (the
District of Columbia, Maryland, and Virginia).
Defendants will be required to produce names, mailing
addresses, and email addresses for notice purposes within the
next twenty days but, absent a further order of the Court,
will not be required to produce telephone numbers or to
include notices with paychecks mailed to employees. The
opt-in period will last sixty days from when notice is sent.
the Court does not approve Plaintiffs' proposed form of
notice (Pls.' Br., Ex. A, ECF No. 14-1). Instead, the
Court will order the parties to meet, confer, and submit to
the Court a revised form of proposed notice consistent with
this Opinion by February 9, 2018.
The Amended Complaint
Farmers Restaurant Group operates five restaurants in the
D.C. metropolitan area: three in the District of Columbia
(Founding Farmers DC, Farmers Fishers Bakers, and Farmers &
Distillers), one in Maryland (MoCo's Founding Farmers),
and one in Virginia (Founding Farmers Tysons). ECF No. 5
(“Am. Compl.”) ¶ 3. Plaintiffs allege that
the two individual Defendants, Daniel Simons and Michael
Vucurevich, own Farmers Restaurant Group. Id. ¶
eight current and former employees at the restaurants, claim
that Defendants' conduct violated the minimum wage and
overtime provisions of the federal Fair Labor Standards Act
of 1938 (“FLSA”),  Am. Compl. ¶¶ 45-59,
the minimum wage and overtime provisions of the D.C. Minimum
Wage Act (“DCMWA”),  Am. Compl. ¶¶
60-74, the sick leave provisions of the D.C. Accrued Sick and
Safe Leave Act of 2008 (“Sick Leave Act”),
Compl. ¶¶ 75-78, the minimum wage and overtime
provisions of the Maryland Wage and Hour Law,  Am. Compl.
¶¶ 79-94, and the payment requirements of the
Maryland Wage Payment and Collection Law,  Am. Compl.
¶¶ 95-101. Plaintiffs have brought their case as a
putative opt-in collective action under the FLSA and D.C.
law, id. ¶¶ 10-15, and as a putative Rule
23 opt-out class action under D.C. and Maryland law,
id. ¶¶ 16-32. The instant motion relates
only to Plaintiffs' proposed collective action, and
accordingly Plaintiffs' Maryland-law claims are not
relevant to the issues presently before the Court.
claim that Defendants engaged in the following allegedly
improper employment practices:
• Defendants required employees to use their own money
“to purchase uniforms including, but not limited to,
specific denim chambray shirts, suspenders, black non-slip
shoes, aprons, and bow ties, ” id. ¶ 36,
and “to clean, starch, and press their uniforms,
” id. ¶ 38.
• Defendants required employees “to purchase
equipment for use while at work, including, but not limited
to, bottle openers, corkscrews, black lighters, and black
click-top pens.” Id. ¶ 37.
• Defendants required employees “to attend
pre-shift meetings” before each shift that lasted
“on average 15 to 20 minutes, ” and employees
were not compensated for time spent at the meetings.
Id. ¶ 39.
• Defendants required employees “to engage in
close-out duties for 30 minutes to two hours per shift,
” and such duties included without limitation
“rolling silverware, resetting tables, polishing
silver, and cleaning and setting up the restaurants.”
Id. ¶ 40. Similarly, Defendants required
employees to spend time “sweeping cleaning, and
preparing the restaurants to open before their shifts.”
Id. ¶ 49(d).
• Defendants “required plaintiffs to pool their
tips and share tip proceeds with staff who do not customarily
and regularly receive tips and gratuities, including their
managers.” Id. ¶ 44.
• When employees worked at multiple restaurants within
Farmers Restaurant Group, Defendants “counted the hours
of work at each location separately for purposes of
calculating overtime to avoid paying overtime.”
Id. ¶ 41. Defendants generally failed to
compensate Plaintiffs “for all hours worked over 40 in
a workweek at the proper overtime rate.” Id.
• Defendants failed to provide employees with sick
leave. Id. ¶ 42.
• Plaintiffs allege that they were paid using the
“tip credit” for purposes of federal and state
labor law. See Id. ¶ 35. That is, employees
were paid a small cash wage (which under federal law must be
at least $2.13), with the remainder of the minimum wage made
up by tips. See Id. ¶ 51.
allegedly applied these practices to the named Plaintiffs and
to similarly situated employees, namely “servers, wait
staff, and bartenders.” Id. ¶ 14.
the Amended Complaint was filed, Plaintiffs have submitted
opt-in consents from five additional putative class members
that seek to participate in the action. See ECF Nos.
of the eight named Plaintiffs have submitted declarations in
support of the motion.The declarations explain that each
Plaintiff either previously worked or still works as a
“server” at one (or, in some cases, two) of the
restaurants, with each Plaintiffs tenure beginning at some
point since March 2015 and lasting for various lengths of
time. See Calvillo Decl. ¶ 1; Clark Decl.
¶ 1; Krohn Decl. ¶ 1; Pitt Decl. ¶ 1; Stephens
Decl. ¶ 1; Storey Decl. ¶ 1; Willig Decl. ¶ 1.
Four named Plaintiffs worked at two restaurants, and each
such Plaintiff claims that the same policies applied at both
restaurants. See Calvillo Decl. ¶¶ 1-2;
Clark Decl. ¶¶ 1-2; Pitt Decl. ¶¶ 1-2;
Stephens Decl. ¶¶ 1-2. Only Plaintiff Calvillo
worked at the Maryland restaurant, MoCo's Founding
Farmers, see Calvillo Decl. ¶ 1, and only
Plaintiff Storey worked at the Virginia restaurant, Founding
Farmers Tysons, see Storey Decl. ¶ 1.
declarations attest to each Plaintiffs knowledge of the
allegedly unlawful practices at the restaurants. These
declarations track the allegations in the Amended Complaint
in most, but not all, respects.
• Plaintiffs declare that they were required to purchase
“uniforms” generally similar to those described
in the Amended Complaint, and that they were required to
launder the uniforms. See Calvillo Decl.
¶¶ 4-5; Clark Decl. ¶¶ 4-5; Krohn Decl.
¶¶ 3-4; Pitt Decl. ¶¶ 4-5; Stephens Decl.
¶¶ 4-5; Storey Decl. ¶¶ 3-4; Willig Decl.
¶¶ 3-4. The descriptions of the uniforms vary
somewhat from plaintiff to plaintiff. For example, while most
Plaintiffs include “denim chambray shirts” when
describing the uniform, e.g., Calvillo Decl. ¶
4, Plaintiff Pitt includes “white oxford shirts with
non-French cuffs” instead, Pitt Decl. ¶ 4.
Similarly, only two of the seven Plaintiffs mention
suspenders in their descriptions, Calvillo Decl. ¶ 4;
Stephens Decl. ¶ 4, and the word
“suspenders” appears to have been whited out in
Plaintiff Pitt's declaration, see Pitt Decl.
• Plaintiffs declare that they were required to purchase
equipment including “bottle openers, corkscrews, black
lighters, and click-top black ink pens” for work.
Calvillo Decl. ¶ 6; Clark Decl. ¶ 6; Krohn Decl.
¶ 5; Pitt Decl. ¶ 6; Stephens Decl. ¶ 6;
Storey Decl. ¶ 5; Willig Decl. ¶ 5.
• With two notable exceptions, Plaintiffs uniformly
report that they were required to attend pre-shift meetings
lasting, “on average, 15 to 20 minutes each” and
were prohibited from “clocking in” until the
meetings were over. Calvillo Decl. ¶ 7; Krohn Decl.
¶ 6; Pitt Decl. ¶ 7; Stephens Decl. ¶ 7;
Willig Decl. ¶ 6. However, Plaintiff Clark, who worked
at both Farmers & Distillers and Founding Farmers DC,
mentions only Farmers & Distillers when stating that servers
could not “clock in” before the meetings
(remaining silent on whether this was the case at Founding
Farmers DC). See Clark Decl. ¶ 7. And Plaintiff
Storey explains that employees are prohibited from
“clocking in” at Founding Farmers Tysons only if
they do not “come in at least 10 minutes early.”
Storey Decl. ¶ 6.
• Plaintiffs also claim that they lacked the opportunity
to earn tips during the pre-shift meetings. Calvillo Decl.
¶ 7; Clark Decl. ¶ 7; Krohn Decl. ¶ 6; Pitt
Decl. ¶ 7; Stephens Decl. ¶ 7; Storey Decl. ¶
6; Willig Decl. ¶ 6. Plaintiffs similarly describe
having performed “30 minutes to two hours” after
each shift of non-tipped close-out duties, such as
“folding linens, polishing silverware, bullets, and
ramekins, cleaning the wait stations, removing trash,
restocking the takeout and to go boxes, restocking
condiments, cleaning and restocking beverage stations,
polishing wine glasses, and preparing tables.” Calvillo
Decl. ¶ 8; see Clark Decl. ¶ 8; Krohn
Decl. ¶ 7; Pitt Decl. ¶ 8; Stephens Decl. ¶ 8;
Storey Decl. ¶ 7; Willig Decl. ¶ 7. Once again,
there are some variations among the duties described. For
example, Plaintiff Clark does not report having polished
silverware, and Plaintiffs Clark and Storey do not say that
they polished ramekins. See Clark Decl. ¶ 8;
Storey Decl. ¶ 7.
• All Plaintiffs report having pooled their tips with
other employees, in most cases with “bartenders,
bussers, runners, and stockers.” Calvillo Decl. ¶
9; Clark Decl. ¶ 9; Krohn Decl. ¶ 8; Pitt Decl.
¶ 9; Stephens Decl. ¶ 9; Storey Decl. ¶ 8.
Plaintiff Willig says that the tip pool includes
“bussers, runners, pastry workers, and stockers”
Willig Decl. ¶ 8.
• Only Plaintiff Stephens, who worked at Farmers &
Distillers and Farmers Fishers Bakers, reports that
Defendants would “count the hours worked at each
restaurant separately in order to avoid” paying
overtime. Stephens Decl. ¶ 11.
• Six Plaintiffs state that they were denied sick leave.
Calvillo Decl. ¶ 12; Clark Decl. ¶ 10; Krohn Decl.
¶ 9; Pitt Decl. ¶ 11; Stephens Decl. ¶ 13;
Willig Decl. ¶ 10. Three Plaintiffs further specify
that, when they requested sick leave, they were ordered to
come in to work. Clark Decl. ¶ 10; Pitt Decl. ¶ 11;
Stephens Decl. ¶ 13. Plaintiff Storey does not declare
that she was denied sick leave. See Storey Decl.
• Six Plaintiffs' declarations also include the
allegation, absent from the Amended Complaint, that their
first two weeks of work involved a “training”
period during which they were required to perform homework
for “one to two hours” each workday. Calvillo
Decl. ¶ 11; Krohn Decl. ¶ 10; Pitt Decl. ¶ 10;
Stephens Decl. ¶ 12; Storey Decl. ¶ 10; Willig
Decl. ¶ 9. Plaintiff Clark's declaration does not
mention any such homework. See Clark Decl.
• The cash wage that Plaintiffs earned varied by
jurisdiction: $2.77 in D.C., $3.63 in Maryland, and $2.13 in
Virginia. See, e.g., Calvillo Decl. ¶ 3; Storey
Decl. ¶ 2.
report that these practices applied to “other
servers” as well, with one exception: no Plaintiff
states that Defendants' alleged sick-leave policies
applied to employees other than the named Plaintiffs.
See Calvillo Decl. ¶ 13; Clark Decl. ¶ 11;
Krohn Decl. ¶ 11; Pitt Decl. ¶ 12; Stephens Decl.
¶ 14; Storey Decl. ¶ 11; Willig Decl. ¶ 11. In
addition, only Plaintiffs Calvillo, Stephens, and Storey say
that they worked overtime, and each reports having worked
overtime either a quarter or a third of the time.
See Calvillo Decl. ¶ 10; Stephens Decl. ¶
10; Storey Decl. ¶ 9.
filed four declarations, which accompanied their opposition
brief The declarations were filed by (1)
Defendant Simons, see Simons Decl., (2) the Director
of Accounting Operations at Founding Farmers Group,
see Guilford Decl. ¶ 1, (3) a former General
Manager at MoCo's Founding Farmers, see Smith
Decl. ¶ 1, and (4) a Service Manager at Farmers Fishers
Bakers, see Garcia Decl. ¶ 1.
declarations describe several differences among the
restaurants that they assert assist them in defeating
conditional certification. They explain that each restaurant
is owned by a separate limited liability company with a
different ownership structure, although Defendants do not
appear to deny that Founding Farmers Group operates the
restaurants (presumably through those other entities).
See Simons Decl. ¶ 3. Defendants also explain
that the restaurants have “operational
differences” that affect their wage and hour policies.
See Id. ¶ 4. For example, Defendants state that
the restaurants have varying volumes of work at different
times of the year and different hours of the day, resulting
in different policies with respect to shifts, pre-shift
meetings, and side work. See Id. ¶¶ 5-7,
11. Defendants also state that the restaurants offer
different types of food and service (for example, some offer
brunch buffets while others do not). See Id.
¶¶ 8-12. Defendants state that their clothing
policies (which they describe as “style guides”
rather than “uniforms”) vary among the
restaurants. See Id. ¶ 13. They further state
that there are variations in their policies regarding the tip
credit and tip pooling, see Id. ¶¶ 14,
17-18, and whether employees are required to roll and polish
silverware, see Id. ¶¶ 15-16.
declarations also deny several of Plaintiffs' substantive
allegations. The declarations state that employees are not
required to do homework, see Id. ¶ 19; that
Defendants have paid employees straight-time and overtime pay
as required, see Id. ¶¶ 20-21; Guilford
Decl. ¶¶ 3-4; that Defendants gave employees paid
time off to use as sick leave (and in some cases, paid
employees for unused sick leave at the end of their
employment), see Guilford Decl. ¶¶ 5-12;
that pre-shift meetings were not held at MoCo's Founding
Farmers, see Smith Decl. ¶ 6; and that such
meetings varied in length and frequency at Farmers Fishers
Bakers, see Garcia Decl. ¶¶ 6-9.
Defendants' declarations further state that employees are
not eligible to begin taking sick leave until 90 days after
they start their jobs, and that some employees work for fewer
than 90 days or for not much longer than that. See
Guilford Decl. ¶¶ 6-9. Finally, the declarations
state that at least two individual managers, and some
vendors, gave employees access to many of the tools that
Plaintiffs claim they had to purchase (such as pens,
“wine tools, ” and lighters). See Smith
Decl. ¶¶ 3-5; Garcia Decl. ¶¶ 3-5.
Conditional Certification Under the FLSA
FLSA affords employees a private right of action for
violations of the statute's minimum wage and overtime
provisions. See 29 U.S.C. § 216(b); Coffen
v. Wash. Conv. & Sports Auth., No. 16-cv-1064 (RJL),
2017 WL 4279320, at *2 (D.D.C. Sept. 25, 2017). Employees may
prosecute such actions “for and in behalf of . . .
themselves and other employees similarly situated, ”
but unlike in a Rule 23 opt-out class action, any other
employee seeking to join the action must affirmatively opt in
by filing “consent in writing to become such a
party.” 29 U.S.C. § 216(b). Once such a
“collective action” is filed, “the court
has a managerial responsibility to oversee the joinder of
additional parties to assure that the task is accomplished in
an efficient and proper way.” Hoffmann-La Roche
Inc. v. Sperling, 493 U.S. 165, 170-71 (1989). This
responsibility includes ensuring that notice to putative
class members “is timely, accurate, and
informative.” Id. at 172. “District
courts enjoy ‘considerable discretion' to decide
whether and how collective actions should proceed and to
fashion procedures for ‘joining similarly situated
employees in a manner that is both orderly and
sensible.'” Galloway v. Chugach Gov't
Servs., Inc., 263 F.Supp.3d 151, 155 (D.D.C. 2017)
(quoting Dinkel v. MedStar Health, Inc., 880
F.Supp.2d 49, 52 (D.D.C. 2012)).
absence of guidance from our Court of Appeals, courts in this
Circuit have followed the lead of other federal courts in
adopting a “two-stage inquiry for determining when a
collective action is appropriate.” E.g.,
Ayala v. Tito Contractors, 12 F.Supp.3d 167, 170
(D.D.C. 2014) (quoting Dinkel, 880 F.Supp.2d at 52).
At the first stage, the Court determines whether and how to
notify putative class members. See Id. While this
stage is typically referred to as “conditional class
certification, ” no class is actually created, and the
“procedural safeguards” that govern certification
of Rule 23 opt-out class actions do not apply.
Galloway, 263 F.Supp.3d at 154-55. Rather,
plaintiffs must merely propose a class of “potential
opt-in plaintiffs who may be ‘similarly
situated' to the named plaintiffs with respect to whether
a FLSA violation has occurred.” Ayala, 12
F.Supp.3d at 170 (quoting Myers v. Hertz Corp., 624
F.3d 537, 555 (2d Cir. 2010) (emphasis added)). If
conditional certification is granted, then the matter
proceeds as a collective action through the close of
discovery, at which time the defendant may move for
“decertification, ” prompting a “more
searching” inquiry into whether putative class members
are in fact “similarly situated.” Id.;
see Galloway, 263 F.Supp.3d at 155-56.
the nature of conditional certification, the “bar for a
plaintiff . . . is not high.” Ayala, 12
F.Supp.3d at 170. Plaintiffs need only make a “modest
factual showing sufficient to demonstrate that [named] and
potential plaintiffs together were victims of a common policy
or plan that violated the law.” Id.
(alteration in original) (quoting Castillo v. P&R
Enters., Inc., 517 F.Supp.2d 440, 445 (D.D.C. 2007)).
This burden “may be satisfied based on pleadings and
affidavits.” Blount v. U.S. Sec. Assocs., 945
F.Supp.2d 88, 93 (D.D.C. 2013). But “pure
speculation” is not sufficient. Ayala, 12
F.Supp.3d at 170 (quoting Symczyk v. Genesis HealthCare
Corp., 656 F.3d 189, 193 (3d Cir. 2011), rev'd
on other grounds, 569 U.S. 66 (2013)). Courts have
denied conditional certification, or certified a class
narrower than the one proposed, where plaintiffs have failed
“to produce any evidence that there was a common
practice” covering the entire proposed class.
Dinkel, 880 F.Supp.2d at 55.
plaintiffs have met their burden, defendants may not thwart
conditional certification merely by contradicting
plaintiffs' claims, even if defendants provide
“voluminous documentation” purporting to show
that no violations occurred. Bhumithanarn v. 22 Noodle
Mkt. Corp., No. 14-cv-2625 (RJS), 2015 WL 4240985, at *4
(S.D.N.Y. July 13, 2015). Rather, “district courts
should ordinarily refrain from resolving factual disputes and
deciding matters going to the merits.” Dinkel,
880 F.Supp.2d at 53. Moreover, “[p]laintiffs need only
show that their positions are similar, not identical, to the
positions held by the putative class members.”
Ayala, 12 F.Supp.3d at 170 (quoting Grayson v. K
Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)).
Accordingly, defendants cannot defeat conditional
certification by pointing to immaterial variations in how the
improper policies alleged by the plaintiff were applied.
See, e.g., Blount, 945 F.Supp.2d
at 94-95. Conditional certification is also often appropriate
despite differences among putative class members that go to
damages, because a trial on liability may be followed by
“individualized damages calculations.”
Id. at 96. Nonetheless, conditional certification
may be inappropriate where defendants' liability to each
putative class member turns on individualized questions.
See, e.g., Dinkel, 880 F.Supp.2d at 54-55.
Conditional Certification Under the DCMWA and the Sick Leave
law permits DCMWA and Sick Leave Act claims to be brought
“[c]onsistent with the collective action procedures of
the Fair Labor Standards Act, ” in an opt-out class
action, or in a collective action that is subsequently
converted into a class action. D.C. Code §
32-1308(a)(1)(C)(iii)-(v). While D.C. law thus incorporates the
FLSA's procedural provisions, D.C. law differs from the
FLSA in that it provides a definition of “similarly
(2) For the purposes of this subsection, 2 or more employees
are similarly situated if they:
(A) Are or were employed by the same employer or employers,
whether concurrently or otherwise, at some point during the