In Perez v. La Abundancia Bakery & Restaurant, Inc., the Eastern District of New York partially granted a motion to conditionally certify an FLSA collective action consisting of a group of restaurant workers who alleged they were not paid the minimum wage or overtime. See No. 17-CV-0656 (RLM) (E.D.N.Y. Aug. 4, 2017).

The Court analyzed the motion under the first-step of the familiar two-step process endorsed by the Second Circuit in Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010). Thus, the Court considered the pleadings and supporting affidavits to determine whether “the plaintiff [] demonstrated that the potential opt-in plaintiffs [were] ‘similarly situated’ to the named plaintiffs” by virtue of being “victims of a common plan or policy that violated the law.” The Court noted, consistent with Second Circuit precedent, that the burden is only “modest” and that evidence submitted by defendants disputing the facts alleged by plaintiffs will not undermine the plaintiffs’ motion.

The Defendant argued that certification was inappropriate because the three Named Plaintiffs consisted of two dishwashers and one waitress, yet they sought to certify a collective consisting of various other restaurant positions. The Defendant further argued that the Named Plaintiffs together worked at only two of its six locations. The Court rejected the first argument altogether, but partially credited the second.

The Court held that the proposed Opt-In Plaintiffs need not share the same job title or job duties provided there is “some identifiable factual nexus which binds the Named Plaintiffs and potential class members together as victims.” The Court found the allegation that all workers were denied overtime sufficient to meet this standard, since it was supported by four affidavits and since the workers were often shifted among positions.

The Court also held, however, that the affidavits and other evidence supplied implicated only four of six restaurants. The Court rejected the Plaintiffs’ argument that common ownership was sufficient to support certification of all restaurants, and instead held that evidence of a common plan or policy was necessary to include the workers at the two additional restaurants. Because this evidence was lacking, the Court limited the scope of the collective.

While conditional certification is often an uphill battle, Perez serves as a reminder that an employer may still advance meritorious arguments that may serve to limit the scope of the collective sought.