United States District Court, E.D. Arkansas, Western Division
JACQUELINE ESRY, individually and on behalf of all others similarly situated PLAINTIFF
P.F. CHANG'S CHINA BISTRO, INC., d/b/a P.F. CHANG'S CHINA BISTRO DEFENDANT
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
Esry was a server at P.F. Chang's China Bistro,
Inc.'s location in Little Rock, Arkansas. She brought
this action under the Fair Labor Standards Act, alleging that
she was paid $2.63 per hour, which was below the minimum wage
required by the FLSA. She says that P.F. Chang's used a
“tip credit” to calculate her wages for purposes
of meeting the minimum wage requirements, citing 29 U.S.C.
§ 203(m). Esry alleges that she devoted more than twenty
percent of her time to non-tipped duties. The Department of
Labor has interpreted the statute and regulations to mean
that no tip credit may be taken for non-tipped duties when
tipped employees spend a substantial amount of time, defined
as more than twenty percent of the hours worked in a
workweek, performing non-tipped duties.
has now moved for conditional certification of a collective
action. She proposes that the class would include all persons
whom P.F. Chang's paid as tipped employees at any time
since February 23, 2015. Although she does not expressly say
that the class would be nationwide, both she and the
defendant have briefed the motion as though she seeks to
represent a nationwide class. P.F. Chang's opposes the
motion for class certification. It argues that Esry cannot
represent a nationwide class because she has failed to show
that employees in other locations similarly situated with
respect to the issues here. It also argues that she cannot
represent persons other than servers at the P.F. Chang's
location in Little Rock.
FLSA authorizes “similarly situated” employees to
proceed collectively to recover damages for violations of the
FLSA's overtime provisions. 29 U.S.C. § 216(b).
Employees are similarly situated for FLSA purposes when they
are subject to a common policy that violates the FLSA and
“when proof of that policy or of conduct in conformity
with that policy proves a violation as to all the
plaintiffs.” Bouaphakeo v. Tyson Foods, Inc.,
765 F.3d 791, 796 (8th Cir. 2014) (quoting O'Brien v.
Ed Donnelly Enters., Inc., 575 F.3d 567, 585 (6th Cir.
Court and others within the Eighth Circuit have applied the
two-step approach set out in Lusardi v. Xerox Corp.,
118 F.R.D. 351 (D.N.J. 1987), to determine whether class
certification is proper. See Maclin v. Montgomery and
Sons Const., Inc., No. 4:12CV5, 2012 WL 5818163 at *1
(E.D. Ark. Nov. 15, 2012) (applying the two-step approach);
In re Pilgrim's Pride, No. 1:07CV1832, 2008 WL
4877239, at *2 (W.D. Ark. Mar. 13, 2008) (citing to federal
courts that follow the two-step approach and adopting it);
Davis v. NovaStar Mortgage, Inc., 408 F.Supp.2d 811,
815 (W.D. Mo. 2005) (applying the two-step approach);
Kalish v. High Tech Inst., Inc., No. Civ. 041440,
2005 WL 1073645, at *1 (D. Minn. Apr. 22, 2005) (applying the
two-step approach); McQuay v. Am. Int'l Group,
No. 4:01CV00661, 2002 WL 31475212, at *2 (E.D. Ark. Oct. 25,
2002) (noting that “a majority of courts have adopted a
two-step process”). Generally, the plaintiffs move for
conditional certification at an early stage in the
litigation, and a class is conditionally certified for notice
purposes. Davis, 408 F.Supp.2d at 815. Then, the
defendant is allowed the opportunity to move for
de-certification at the close of discovery. Id.
first stage, or “notice stage, ” courts apply a
lenient standard to determine whether persons similarly
situated to the named plaintiffs exist and should receive
notice. Chin v. Tile Shop, LLC, 57 F.Supp.3d 1075,
1082 (D. Minn. 2014). The plaintiffs bear the burden of proof
at this stage, and they “can meet this burden by making
a modest factual showing sufficient to demonstrate that they
and potential plaintiffs together were victims of a common
policy or plan that violated the law.” Kautsch v.
Premier Commc'ns, 504 F.Supp.2d 685, 689 (W.D. Mo.
2007) (quoting Realite v. Ark Rests. Corp., 7
F.Supp.2d 303, 306 (S.D.N.Y. 1998)). The burden can be met
through the use of affidavits, supported by admissible
evidence. Jost v. Commonwealth Land Title Ins. Co.,
No. 4:08CV734, 2009 WL 211943, at *2-3 (E.D. Mo. Jan. 27,
2009). “The plaintiffs may not meet this burden through
unsupported assertions of additional plaintiffs and
widespread FLSA violations.” Littlefield v. Dealer
Warranty Servs., LLC, 679 F.Supp.2d 1014, 1017 (E.D. Mo.
2010). However, the Court “does not make any
credibility determinations or findings of fact with respect
to contrary evidence presented by the parties.”
Chin, 57 F.Supp.3d at 1083.
issue of whether Esry is similarly situated to other
employees, the only evidence that Esry submits is her own
declaration. Esry describes her work and the work of other
servers, but she says nothing about tipped employees other
than servers, such as bartenders. Furthermore, she claims no
specific knowledge about servers in locations other than in
Little Rock, except to say that she was informed by the
defendant that the hourly rate of $2.63 was paid to all
servers employed by the defendant. P.F. Chang's has
submitted evidence that there is no company-wide policy or
practice that servers will spend any particular amount of
time or percentage of time on non-tipped work. According to
evidence submitted by P.F. Chang's, the amount of time
that tipped employees spend on non-tipped work varies from
location to location because busier restaurants tend to use
more bussers to clear and set tables and to bring dirty
dishes to the kitchen than do the slower restaurants.
has met the minimal requirements of representing a collective
action for servers at the Little Rock location. She has not,
however, shown that she is similarly situated to non-servers
or servers in other locations.
seeks to represent a class of employees dating back to
February 23, 2015, three years before the commencement of
this action. While the Court will permit her to seek to
represent such a class, the notice should include “a
statement explaining that claims of employees who have not
worked for P.F. Chang's within the past two years may be
time-barred.” Resendiz-Ramirez v. P&H Forestry,
LLC, 515 F.Supp. 937, 944 n.9 (W.D. Ark. 2007).
proposes a ninety-day opt-in period, which P.F. Chang's
argues is excessive. Sixty days is sufficient time to notify
potential class members and allow them to decide whether to
opt-in. See Tegtmeier v. P.J. Iowa, L.C., 208
F.Supp.3d 1012, 1025 (S.D. Iowa 2016).
may be sent by U.S. mail. Esry also requests authorization to
follow-up with cards and text messages or e-mail messages
beginning thirty days after the opt-in period begins to
potential plaintiffs who have not responded. One reminder
notice may be sent by postcard thirty days after the initial
notice has been mailed to potential class members who have
not responded. Notice may be sent electronically to any
potential class member whose notice is returned for
Court will not require P.F. Chang's to post a notice in
Chang's objects to including the caption and styling of
the case on the notice. That objection is overruled.
Chang's must provide plaintiffs counsel in electronically
readable or importable form the names and addresses of all
persons who were employed at the P.F. Chang's location in
Little Rock as servers from February 23, 2015, to date, as
well as the e-mail address or cell phone number for any
potential class member whose notice is returned for