Michael Starr is a Partner in Holland & Knight's New York office
In Stevens v. Farmers Restaurant Group, 2018 WL 647638 (D.D.C. Jan. 31, 2018), the district court's grant of conditional certification in a wage-hour opt-in class contains important lessons for restaurants and other hospitality employers. The case shows that small but significant gains can be achieved early in a lawsuit if issues are properly presented to the court. Based on a "modest" showing of a common policy, the court allowed the plaintiff servers to proceed on a collective basis with respect to their attempt to disallow the tip credit for "close-out" work, which included rolling silver, resetting tables and also sweeping, cleaning and preparing the restaurant to open for the next day.
Tip Pools. The court refused to certify conditionally an opt-in class that included bartenders with whom the servers claimed, among other things, their tips were pooled and improperly shared because the bartenders had not contributed tips to the allegedly invalid tip pool. That result follows naturally from the fact that even if there is an invalid tip pool, the only persons with a claim of harm are those who contributed to the pool, not those who only received money from it.
Email Notice: In addition, the court rejected the plaintiffs' request for telephone numbers of potential class members, as that would intrude on the privacy of class members and subject them to unsolicited phone calls and text messages. The court required the restaurants just to provide mail and email addresses of the potential class members.
Paycheck Notice: The court also rejected the proposal that the defendants include the class notice in paychecks, accepting the argument that this would imply the restaurant defendants' endorsement of the notice and put managers in the uncomfortable position of possibly being asked by employees to explain the lawsuit.
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