By: Daily Record Staff//March 9, 2011
By: Daily Record Staff//March 9, 2011//
U.S. District Court, Northern District of New York
Class Actions — Certification
Rudd v. T.L. Cannon Corp.
Background: Plaintiffs Ann Marie Rudd, Matthew Roach, Melissa Longo, Jennifer Doty and Garrett Titchen, all former employees of the defendants, operators of approximately 53 Applebee’s Neighborhood Grill & Bar Restaurants throughout New York state, have commenced this action, styled as an “FLSA Collective Action and Class Action”, against the defendants. The plaintiffs’ complaint alleges the existence of systemic policies and practices in place at the defendants’ restaurants resulting in violations of various provisions of the New York Labor Law and the Fair Labor Standards Act. The plaintiffs moved for certification of the case as a class action with respect to their state law claims, and for approval to pursue a collective action for purposes of the FLSA claims asserted.
The plaintiffs worked in various positions at the Applebee’s on Upper Front Street in Binghamton, including as server, host, carside-to-go employee, prep cook, general utility dishwasher, expediter, bartender, mid-line cook, fry cook, broil cook, general utility dishwasher, as well as in managerial positions such as opening manager and a middle manager.
Five causes of action alleged arise under the New York Labor Law, including a failure on the part of the defendants to reimburse employees for laundry fees, failure to reimburse for uniform fees, failure to provide proper compensation for “spreads of hours” exceeding ten hours, failure to adequately compensate employees for “split-shifts”, and a failure to properly compensate employees for rest time, regular time, and overtime. The plaintiffs’ remaining claims are asserted under the FLSA, and are based upon their contention that the defendants have failed to properly compensate hourly employees for wages and overtime; improperly classified employees as exempt “bona fide executive” employees, thereby avoiding the requirement of paying overtime under the act; and improperly classified employees as exempt “salaried managers,” in that way also avoiding the requirement of paying overtime.
Ruling: Certification of this action as a collective action for purposes of the FLSA is granted in part, and the plaintiffs’ motion for class certification under Federal Rule of Civil Procedure 23 with regard to the claims under New York Labor Law is denied without prejudice. The court grants the plaintiffs’ application for certification of the case as a collective action, but only as to present and former employees of the Applebee’s location in which the plaintiffs all principally worked. The plaintiffs are permitted to engage in discovery initially focusing upon the Rule 23 certifications issues.
Dennis G. O’Hara for the plaintiffs; Craig R. Benson for the defendants