United States District Court, D. Kansas
PATRICIA A. McCOY, et al.,
OVER EASY MANAGEMENT, INC., et al., Defendants. individually and on behalf of all others similarly situated, Plaintiffs,
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Plaintiffs Patricia A. McCoy, Retta A. Feldkamp, and Christina L. Reeves, on behalf of themselves and all others similarly situated, filed this wage and hour suit against Defendants Over Easy Management, Inc., Over Easy LP, Over Easy Number IX, LP, Over Easy Number X, LP, and Gregg A. Hansen alleging violations of the Fair Labor Standards Act and Kansas Wage Payment Act. This matter is before the Court on Plaintiffs' Motion for Conditional Certification of Class Claims under § 216(b) of the FLSA (Doc. 24). Because the Court finds that Plaintiffs have met the lenient standard for conditional certification, the Court grants Plaintiffs' motion.
I. Factual and Procedural Background
Plaintiffs brought this class action suit on September 19, 2014, alleging that the pay policies and practices of their former or current employer, Defendants Over Easy Management, Inc. ("OEM"), Over Easy LP ("OELP"), Over Easy Number IX, LP ("OELP#9"), Over Easy Number X, LP ("OELP#10"), and Hansen violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), and the Kansas Wage Payment Act ("KWPA"). Defendants are franchisees of Huddle House, a 24/7 diner-type restaurant that operates in twenty-one states. Defendant Hansen is an officer and director of Defendant OEM. Defendant Hansen is directly involved in the operation of the Huddle House Restaurants in Kansas. Defendant OEM is the general partner of OELP#9 and OELP#10. OELP#9 is a Huddle House Restaurant located within a "Pilot Flying J" truck stop in Emporia, Kansas. OELP#10 is a Huddle House Restaurant located within a "Pilot Flying J" truck stop in Salina, Kansas. OELP#9 and OELP#10 are both supervised by Karen Kersey as Regional Manager.
Plaintiffs have filed sworn declarations in support of their motion. These declarations state that Plaintiff McCoy has been employed at the Salina Huddle House restaurant since January 20, 2014. She initially worked as a server, was promoted to lead server, and now works as a cook. The declarations also state that Plaintiffs Feldkamp and Reeves are former employees of the Salina Huddle House restaurant, where they worked as servers. Finally, the declarations provide that opt-in Plaintiff Tracey Francis has worked at the Salina Huddle House restaurant since September 4, 2012, as a server.
Plaintiffs allege the following facts: (1) Defendants deducted time for breaks of less than thirty minutes from the time that servers and cooks at the restaurants worked; (2) Defendants did not make the necessary disclosures to servers about how tips were to be recorded and paid to them; (3) Defendants' payroll system improperly computed the tips earned by servers, causing them to retain Plaintiffs' earned tips; (4) servers were required to wash dishes in addition to those duties normally performed by wait staff; and (5) Defendants failed to pay McCoy over-time for time worked in excess of forty hours per week.
Plaintiffs ask the Court for an Order conditionally certifying a class of all persons described as: "Cooks and servers employed at Huddle House restaurants in Salina and Emporia, Kansas, operated by Over Easy Management, Inc., Over Easy LP, Over Easy Number IX, LP, Over Easy Number X, LP, and Gregg Hansen, from September 19, 2013 to the Present." In addition, Plaintiffs ask the Court to (1) order Defendants to provide the names, last known addresses, and telephone numbers of putative class members in an easily malleable format; (2) designate McCoy, Feldkamp, and Reeves as class representatives and their counsel as class counsel; and (3) approve Plaintiffs' notice of claim and right to opt-in form and consent to join forms.
II. Legal Standard
The FLSA permits legal action "against any employer... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Unlike class actions pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, a collective action brought under the FLSA includes only those similarly-situated individuals who opt into the class. But the FLSA does not define what it means to be "similarly situated." Instead, the Tenth Circuit has approved an ad-hoc, two-step approach to § 216(b) certification claims. The ad hoc approach employs a two-step analysis for determining whether putative opt-in plaintiffs are similarly situated to the named plaintiff.
First, in the initial "notice stage, " the court "determines whether a collective action should be certified for purposes of sending notice of the action to potential class members." The notice stage "require[s] nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." The standard for conditional certification at the notice stage is lenient and typically results in certification for the purpose of notifying potential plaintiffs.
The second step of the ad hoc approach occurs after discovery. At this stage, the district court applies a stricter standard and reviews the following factors to determine whether the opt-in plaintiffs are similarly situated: (1) the disparate factual and employment conditions of the individual plaintiffs; (2) defenses available to the defendant that are individual to each plaintiff; and (3) other fairness and procedural conditions.
A. Conditional Certification under FLSA § 216(b)
The parties agree that this case is in the notice stage for collective action certification under § 216(b) as little discovery has occurred. Plaintiffs argue that potential class members are similarly situated because the servers employed by Defendants and the cooks employed by Defendants performed the same duties. Plaintiffs further argue that Defendants treated all servers and all cooks the same by failing to make, keep, and preserve accurate records of Plaintiffs' wages, hours, and conditions ...