United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
plaintiffs in this action bring claims under the Fair Labor
Standards Act against defendant BAL TK, LLC. The plaintiffs
ask the Court to certify an opt-in class of employees and to
approve notice to potential opt-in plaintiffs, so that the
plaintiffs may pursue their FLSA claims in a collective
action. (Doc. 20). The plaintiffs, who were servers at BAL
TK's restaurant, assert that BAL TK required them to work
off the clock and to purchase uniforms with their own money.
BAL TK opposes conditional certification of an opt-in class.
(Doc. 25). For the reasons explained below, the Court grants
the plaintiffs' motion.
operated a restaurant in Birmingham, Alabama under the trade
name “The Tilted Kilt.” (Doc. 7, pp. 4-5, ¶
16; Doc. 21, pp. 23, 28, & 33 at ¶ 1).The named
plaintiffs -- Ms. Johnsey, Ms. Hilton, and Ms. Wagner --
worked at the Tilted Kilt restaurant from July 2016 to
November 2016, May 2016 to October 2016, and July 2016 to May
2017, respectively. (Doc. 21, pp. 23, 28, & 33 at ¶
1). The plaintiffs were servers at the restaurant and were
known as “Kilt Girls.” (Doc. 21, pp. 23, 28,
& 33 at ¶ 2). As Kilt Girls, the plaintiffs were
required to wear a uniform consisting of “a required
bra, blouse, kilt, socks, and shoes.” (Doc. 21, pp. 24,
29, & 34 at ¶ 5).
plaintiffs allege two FLSA violations. First, the plaintiffs
contend that BAL TK required them to work before and after
their scheduled shifts without pay. (Doc. 7, pp. 6-7,
¶¶ 25, 26; pp. 8-9, ¶¶ 32-33; Doc. 21,
pp. 24, 29, & 34 at ¶ 8). The plaintiffs assert that
they had to appear for their shift 30 minutes before its
scheduled start to change into their uniforms, adjust their
hair and makeup to appear “camera ready, ” and
attend pre-shift meetings. (Doc. 7, pp. 6-7, ¶ 25; pp.
8-9, ¶ 33; Doc. 21, pp. 24, 29, & 34 at ¶ 5).
Because BAL TK did not permit the plaintiffs to wear their
uniforms outside of the restaurant, the plaintiffs had to
change out of their uniforms before leaving the premises.
(Doc. 7, pp. 8-9, ¶¶ 31, 33; Doc. 21, pp. 25, 30,
& 35 at ¶ 13). The plaintiffs had to clock out at
the end of their shifts before changing out of their
uniforms, which the plaintiffs allege added 10 minutes of
unpaid time to each shift. (Doc. 7, pp. 8-9, ¶¶ 31,
33; Doc. 21, pp. 25, 30, & 35 at ¶ 13).
the plaintiffs contend that they had to buy their own
uniforms, which brought their wages below minimum wage for
all hours worked. (Doc. 7, p. 2, ¶ 5; pp. 11-12
¶¶ 47-49; Doc. 21, pp. 24, 29, & 34 at ¶
9). The uniforms cost approximately $100, and the cost was
deducted from the plaintiffs' initial check. (Doc. 7, pp.
11-12, ¶ 48; Doc. 21, p. 24, 29, & 34 at ¶ 9).
The plaintiffs also had to pay for replacement uniforms when
their uniforms became worn. (Doc. 7, pp. 7-8, ¶ 29; Doc.
21, pp. 24, 29, & 34 at ¶ 10). On holidays, the
plaintiffs had to wear festive outfits and accessories, which
the plaintiffs had to purchase with their own money. (Doc. 7,
p. 2, ¶ 5; pp. 7-8, ¶ 29; Doc. 21, pp. 24-25,
29-30, & 34-35 at ¶¶ 11-12). The plaintiffs
assert that they “believe other Kilt Girls would also
be interested in pursuing claims if made aware of the
possibility of proceeding as a group of Kilt Girls.”
(Doc. 21, pp. 25, 30, & 35 at ¶ 16).
on these alleged FLSA violations, the plaintiffs seek to
represent an opt-in class consisting of:
All former Tipped Employees who have worked for Defendant at
The Tilted Kilt in Birmingham, Alabama at 15 Perimeter Park
So., within the statutory period covered by this Complaint,
and elect to opt-in to this action pursuant to the FLSA, 29
U.S.C. § 216(b).
(Doc. 21, p. 2).
FLSA enables an employee to bring a collective action on
behalf of similarly situated employees against an employer
who allegedly has violated the FLSA. See 29 U.S.C.
§ 216(b). The decision to certify an FLSA class rests
within the discretion of a district court. Hipp v.
Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219
(11th Cir. 2001). If the district court deems conditional
certification of the proposed class appropriate, then the
court also may authorize notice to other potential
plaintiffs. See Hoffman-LaRoche Inc. v. Sperling,
493 U.S. 165, 169 (1989).
Eleventh Circuit, certification of an FLSA collective action
proceeds in two stages: the conditional certification or
notice stage and the decertification stage. Morgan v.
Family Dollar Stores, Inc., 551 F.3d 1233, 1260-61 (11th
Cir. 2008). At the first stage, before conditionally
certifying a collective action, a district court must be
satisfied “that there are other employees . . . who
desire to ‘opt-in' and who are ‘similarly
situated' with respect to their job requirements and with
regard to their pay provisions.” Dybach v. Fla.
Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir.
1991).“The sole consequence of conditional
certification is the sending of court-approved written notice
to employees, . . . who in turn become parties to a
collective action only by filing written consent with the
court, § 216(b).” Genesis Healthcare Corp. v.
Symczyk, 569 U.S. 66, 75 (2013).
district court evaluates the limited record at the first
stage “‘using a fairly lenient standard,
'” and the evaluation “‘typically
results in ‘conditional certification' of a
representative class.'” Hipp, 252 F.3d at
1218 (quoting Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1214 (5th Cir. 1995)). The defendant initiates the
second stage of the certification process by filing a motion
for decertification. In the second stage, a district court
makes a closer examination of the FLSA class based on a more
developed factual record. Morgan, 551 F.3d at 1261.
plaintiff seeking conditional certification must show that
there is a reasonable basis for the contention that there are
other similarly situated employees. Morgan, 551 F.3d
at 1260. The FLSA does not define what it means for employees
to be similarly situated. Morgan, 551 F.3d at 1259.
For employees to be similarly situated, they do not have to
hold identical positions. See Dybach, 942 F.2d at
1567-68; Morgan, 551 F.3d at 1260. The similarity
required for an FLSA collective action is less demanding than