Johnsey v. Bal Tk, LLC

          MEMORANDUM OPINION AND ORDER

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE

         The 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.

         I. FACTUAL BACKGROUND

         BAL TK 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).^[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).^[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).

         The 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).

         Second, 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).^[3]

         Based 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).^[4]

         II. DISCUSSION

         The 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).

         In the 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).

         A 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.

         A 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 ...