United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
SONJA F. BIVINS, Magistrate Judge.
This case is before the Court on Plaintiffs' Motion for Conditional Certification (Doc. 11), and Defendants' Motion to Strike Plaintiffs' Supplemental Evidentiary Submission (Doc. 35). The motions, which have been fully briefed and are ripe for resolution, have been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c). Upon consideration of all matters presented, the undersigned RECOMMENDS, for the reasons stated herein, that Plaintiffs' Motion for Conditional Certification be granted, in part, and denied in part, and that Defendants' Motion to Strike Plaintiffs' Supplemental Evidentiary Submission be denied.
I. Background Facts
Plaintiff Jessica Miller filed the instant action alleging that Defendants violated the Fair Labor Standards Act ("FLSA") by not paying servers and bartenders the required minimum wage. (Doc. 1). In the Complaint, Miller alleges that Defendant Edwin J. Spence is the owner of Defendant Port II Seafood & Oyster Bar, Inc., Defendant The Shrimp Basket, Inc., and Defendant Gulf Coast Steamer, Inc., and through these companies, he operates the Steamer restaurant in Gulf Shores (hereinafter "Steamer"), Mikee's Seafood in Gulf Shores (hereinafter "Mikee's"), and twenty Shrimp Basket ("Shrimp Basket") restaurants in Mississippi (2), Florida (8) and Alabama (10). Defendant Edwin Spencer, Jr. is alleged to be the son of Edwin S. Spence, Sr., the general manager of Mikee's Seafood, and the district manager for several of the other referenced restaurants. (Id. at 1-3).
In her Complaint, Plaintiff Miller asserts that she was employed by Defendants as a server/bartender in the Gulf Shores restaurant,  that she was paid an hourly wage of $2.13 as a server, and $5.00 as a bartender, and that Defendants required servers/bartenders to remit a portion of their tips each shift to a tip pool, that was improperly distributed to employees who do not customarily receive tips, such as food expeditors, oyster shuckers, and dishwashers. (Id. at 4-5). Miller further alleges that while working as a server, she, and other servers, were required to perform cleaning and other side work "off the clock" before and after their regularly scheduled shifts, were not permitted to "clock in" until customers were seated in their section, and if they were designated as closers, they would be permitted to remain "on the clock" and would be assigned additional cleaning duties, but would only be compensated at the non-tip producing wage. (Id.). Finally, Miller alleges that Defendant Edwin Spence Jr., District Manager, instructed managers and assistant managers to "roll back" or reduce the hours recorded if employees worked over forty hours a week, in order to avoid paying employees their overtime rate. (Id. at 10). Miller asserts that all other similarly situated servers were subject to Defendants' illegal pay practices and are similarly situated for purposes of their job duties. (Id.)
In her Motion for Conditional Certification (Doc. 11), Miller asks the court to conditionally certify this matter as a collective action and to order court-facilitated notice to all current and former employees, including servers and bartenders, of Defendants Mikee's, Steamer, and Shrimp Basket restaurants who were paid below minimum wage and were required to contribute a portion of their tips to non-tipped employees. According to Miller, Defendants violated the FLSA by requiring her and other "tipped" employees to remit a portion of their tips to Defendants for the purpose of distributing monies to non-tipped employees. Miller asserts that "[t]his policy was uniformly applied to the entire putative class, rendering the putative class members similarly situated' for the purposes of conditional certification." (Id. at 8). The proposed class for conditional certification is described as:
all current and former employees, including servers, of Mikee's Seafood, the Shrimp Basket, and Steamer who were paid a cash wage less than minimum wage (excluding any credit for tips retained), or for whom Defendant claimed a "tip credit" while requiring employees to contribute a portion of their tips to food expeditors, dishwashers, oyster shuckers and/or other non-tipped employees from November 19, 2011 through November 19, 2014.
In support of the motion, Miller submitted the declarations of Rebeka Norwood, Richard Boyett, and Tyra Gardner. (Docs. 11-1, 11-2, 11-3). In her Declaration, Norwood asserts that she worked as a server at the Shrimp Basket in Gulf Shores, Foley, and Orange Beach, Alabama from January 2013 through February 2014, that she was paid $2.13 per hour, plus tips, and that she was required to contribute a portion of her tips to food expeditors, who did not interact with customers. (Doc. 11-1).
Richard Boyett avers that he worked as a server at Mikee's in Gulf Shores starting in March 2013, that in October 2013, he worked as a manager, and that his employment ended in September 2014. Boyett asserts that as a server, he was paid $2.13 per hour, with tips, and that he was required to contribute $2.00 from his tips to food expeditors, who did not interact with customers, and 2% of his tips to dishwashers. (Doc. 11-2).
Tyra Gardner avers that she worked as a server at Mikee's and Steamer in Gulf Shores, Alabama from March through July 2014. According to Gardner, as a server, she was required to contribute to a tip pool for food expeditors, who did not interact with customers, oyster shuckers (at Mikee's) and dishwashers based on a formula that utilized her food sales. Gardner further asserts that she believes that there are others who would join the lawsuit if given notice. (Doc. 11-3).
Also included in support of the Motion for Conditional Certification are four consent forms executed by Richard Boyett, Darlla Longo Bezerra, James Chadwick Franks, and Rebecca Norwood. (Docs. 11-4, 11-5, 11-6, 11-7). The consent form relates solely to Defendants' policy or practice of requiring servers/bartenders to contribute to a tip pool, which included expeditors, dishwashers, or other kitchen staff. (Doc. 11-9) While Boyett, Bezerra, Franks, and Norwood express an interest in joining this action, Bezerra's form does not indicate at which of Defendants' restaurant she was employed. Franks' form reflects that he was employed by Mikee's Seafood in Gulf Shores, Alabama, from May 2013 to August 2014 as a server at $2.13 per hour, and that he was required to contribute to a tip pool that benefited expeditors and dishwashers.
Defendants have denied the substantive allegations in Miller's Complaint and opposed the Motion for Conditional Certification. In their Response in Opposition, Defendants acknowledge that servers at Mikee's, Shrimp Basket, and Steamer are paid an hourly wage of $2.13 plus tips, and that they are required to contribute a percentage of their tips, based on their total food sales, to a tip pool. According to Defendants, the certification motion should be denied for a myriad of reasons, including that Miller is not similarly situated to the putative class members. (Doc. 24). Defendants have also submitted competing affidavits from twelve current and two former employees who dispute Miller's substantive allegations. (Docs. 24-1, 24-2, 24-3, 24-4, 24-5, 24-6, 24-7, 24-8, 24-9, 24-10, 24-11, 24-12, 24-13, 24-14).
Subsequent to the filing of her Motion for Conditional Certification, Miller filed a motion to amend her complaint in order to add five opt-in Plaintiffs, namely Richard Boyett, Rebeka Norwood, Darla Bezerra, James Franks, and Amber Race, as named Plaintiffs. (Doc. 25). In an order dated March 10, 2015, the motion was granted, in part. (Doc. 38). The Court observed that the allegations raised in Norwood's and Boyett's declarations reflect that they were employed as servers at Defendants' restaurants, that like Miller, they alleged that they were required to contribute to a tip pool with non-tipped employees, and that they were required to perform "work off the clock" both before and after their respective shifts. Because their allegations are substantially similar to those of Plaintiff Miller, the Court granted Plaintiffs' Motion as to Norwood and Boyett. (Id.) The Court denied the Motion with respect to Darla Bezerra, James ...