United States District Court, D. South Carolina, Charleston Division
Jonathan Graham, on behalf of himself and all others similarly situated, Plaintiff,
Hall's Southern Kitchens, LLC d/b/a High Cotton, Defendant.
ORDER AND OPINION
Richard M. Gergel United States District Court.
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
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. 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.)
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.)
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.
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,
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).
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,
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. ...