Conditional class certified in bartender/barback wage suit

Where bartenders and barbacks who worked at a music festival in 2021 and 2022 raised similar issues regarding whether they were paid minimum wage, overtime and tips required by federal and Virginia law, a class was conditionally certified.

Background

Plaintiffs in this case are bartenders and barbacks who worked at the Blue Ridge Rock Festival in 2021 and 2022. They allege that the owners and operators of the festival failed to pay minimum wage, overtime and tips that the federal Fair Labor Standards Act, or FLSA, and Virginia wage and hour laws require. Plaintiffs ask the court to conditionally certify an FLSA collective action.

Standard

The court must initially determine whether “there is sufficient evidence to reasonably determine that the proposed class members are similarly situated enough to conditionally certify the collective action and provide potential class members with initial notice of the action and the opportunity to ‘opt-in.’”

District courts in the Fourth Circuit have generally held that plaintiffs are similarly situated under § 216(b) if they “raise a similar issue as to coverage, exemption, or nonpayment of minimum wages or overtime arising from at least a manageably similar factual setting with respect to the job requirements and pay provisions.” The standard is “fairly lenient” and requires “only minimal evidence, such as factual evidence by affidavits or other means.”

Certification

Plaintiffs have more than met the standard and shown that those included in the collective action class “raise a similar legal issue as to coverage, exemption, or nonpayment of minimum wages or overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions.”

Defendants argue that plaintiffs’ submission offers nothing more than “bare assertions” that they are similarly situated, and that they offer “no common proof such as declarations.” They also cite cases to argue that boilerplate declarations are insufficient to support conditional certification. But here, there is no lack of evidence. Plaintiffs’ showing is based on, among other things, sworn declarations from each of the fifteen named plaintiffs, as well as several additional “opt-in” plaintiffs. Nor are these mere bare-bones declarations.

To be sure, plaintiffs’ declarations could be supported by more detail. But they are more than sufficient to satisfy the minimal evidentiary burden to show plaintiffs and the other putative collective action members “raise a similar legal issue as to coverage, exemption, or nonpayment of minimum wages or overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions.”

The claims regarding defendants’ alleged unlawful failure to pay required minimum wage, overtime and unlawful taking of tips are all highly similar. Further, the alleged facts underlying those claims overlap to a great degree.

Defendants also argue that the proposed collective action is “unmanageable and inappropriate for collective treatment or adjudication.” Defendants believe this proposed collective action will “require this Court to inquire into each putative claimant’s experiences at the festival(s) with the sign-in and sign-out process, tip pool procedure, and with his or her managers at a painstaking level of detail.” This court has previously rejected similar arguments.

Notice

“The district court has broad discretion regarding the ‘details’ of the notice sent to potential opt-in plaintiffs.” First, the notice shall refer to the “Blue Ridge Rock Festival” rather than Plaintiffs’ preferred “Virginia Rock Festival.” Second, some description of defendants’ position is warranted and supportive of a balanced and neutral notice.

Third, defendants seek to include the following sentences: “Currently, there is not money available, nor is there a guarantee that money will become available. However, your legal rights are affected, and you have a choice to make now.” Defendants offer no precedent or argument in support of that language. It shall not be included.

Fourth, defendants seek to add a clause specifically describing that the information that may be requested from potential plaintiffs “includ[e] sitting for a deposition and testifying in court.” Such language is “regularly accepted” to notify potential plaintiffs of their potential obligations associated with joining the suit. Finally, to the extent defendants contend that they should not have to provide plaintiffs the phone numbers of the members of the putative collective action class, the objection is unpersuasive.

Plaintiffs’ motion for conditional certification of a collective action granted.

Sands v. Blue Ridge Rock Festival, Case No. 6:22-cv-00056, April 26, 2023. WDVA at Lynchburg (Moon). VLW 023-3-223. 14 pp.