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Graham v. Hall's Southern Kitchens LLC

United States District Court, D. South Carolina, Charleston Division

November 27, 2018

Jonathan Graham, on behalf of himself and all others similarly situated, Plaintiff,
v.
Hall's Southern Kitchens, LLC d/b/a High Cotton, Defendant.

          ORDER AND OPINION

          Richard M. Gergel United States District Court.

         This matter is before the Court on Plaintiffs' motion for conditional certification. (Dkt. No. 12.) For the reasons set forth below, the Court grants Plaintiffs' motion for conditional certification.

         I. Facts

         Plaintiff Jonathan Graham, a tipped worker at High Cotton restaurant, filed this class and collective action on behalf of himself and all others similarly situated against Defendant Hall's Southern Kitchens, LLC, alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the South Carolina Payment of Wages Act, SC Code § 41-10-10 et seq. (Dkt. No. 1 at ¶ 1-3.) Four other individuals have opted in as plaintiffs.[1] Specifically, Plaintiffs allege that they and all other similarly situated tipped workers were paid less than the applicable minimum wage and denied overtime wages because they were improperly included in a tip pool with employees who do not regularly receive tips and their wages were subject to an improper deduction for uniform cleaning. (Dkt. No. 1.)

         Under the FLSA, Plaintiff moves for conditional collective action certification and permission to send an opt-in notice to similarly situated individuals. (Dkt. No. 1 at ¶ 2; 12-1; 21-1.) Defendants do not object to conditional certification, but do object to certain aspects of the proposed notice. (Dkt. No. 21.)

         II. Legal Standard

         The FLSA permits a plaintiff to bring a collective action on behalf of himself and other employees that are "similarly situated" to the plaintiff. See 29 U.S.C. § 216(b). The collective action provision, 29 U.S.C. § 216(b), provides,

An action to recover [unpaid overtime compensation] 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. No. employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

         "In order to expedite the manner in which collective actions under the FLSA are assembled, 'district courts have discretion in appropriate cases to implement ...§ 216(b)... by facilitating notice to potential plaintiffs."' Purdham v. Fairfax Cnty. Pub. Schs., 629 F.Supp.2d 544, 547 (E.D. Va. 2009) (quoting Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169(1989)).

         Certification of a collective action is a two-stage process. See Turner v. BFI Waste Servs., LLC, 268 F.Supp.3d 831, 840 - 41 (D.S.C. 2017). First, "a plaintiff seeks conditional certification by the district court in order to provide notice to similarly situated plaintiffs" that they can "opt-in" to the collective action. See Pelczynski v. Orange Lake Country Club, Inc., 284 F.R.D. 364, 367 - 68 (D.S.C. 2012). At this "notice stage," the court reviews the pleadings and affidavits to determine whether the plaintiff has carried his burden of showing he is similarly situated to the proposed class members. Id. at 368. If the court determines that the proposed class members are similarly situated, the court will conditionally certify the class. Id. at 841. The putative class members are then given notice and the opportunity to "opt-in," and the action proceeds as a representative action throughout discovery. Higgins v. James Doran Co., Inc., No. CV 2:16-2149-RMG, 2017 WL 3207722, at *1 (D.S.C. July 28, 2017).

         After discovery, defendants may take advantage of the second stage and move to decertify the collective action, "pointing to a more developed record to support its contention that the plaintiffs are not similarly situated to the extent that a collective action would be the appropriate vehicle for relief." Higgins v. James Doran Co., Inc., No. CV 2:16-2149-RMG, 2017 WL 3207722, at *2 (D.S.C. July 28, 2017)

         III. Discussion

         A. Similarly Situated

         A court should conditionally certify a collective action and authorize notice where the members "share common underlying facts and do not require substantial individualized determinations for each class member...." Turner, 268 F.Supp.3d at 835 citing Purdham, 629 F.Supp. at 549. At this first stage, the burden of demonstrating that a plaintiff and putative class members are "similarly situated" is fairly lenient and requires "only a modest factual showing that members of the proposed class are 'victims of a common policy or plan that violated the law.'" Higgins v. ...


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