Virginia Lawyers Weekly VA Lawyers Weekly
The Western District of Virginia conditionally certified a class of bartenders and barbacks who claimed a rock festival violated the Fair Labor Standards Act, or FLSA, and Virginia laws in 2021 and 2022.
The defendants argued that class certification wasn’t warranted because the plaintiffs didn’t prove they were all similarly situated. And even if they did, the case would be unmanageable; the court would have to inquire about each claimant’s experience working at the festivals.
U.S. District Judge Norman K. Moon disagreed.
“At bottom, Plaintiffs’ evidentiary showing suffices at this stage of the case to establish that Plaintiffs and the other proposed collective action members are ‘similarly situated’ for purposes of the FLSA, and further, that no individualized inquiry would render inefficient their proceeding as a collective action,” he wrote. “Plaintiffs have established their entitlement to conditional certification of their FLSA collective action.”
The opinion is Sands, et al. v. Blue Ridge Rock Festival, et al. (VLW 023-3-223).
Unpaid wages
Jonathan Slye is the primary owner and managing member of the Virginia company that operated the Blue Ridge Rock Festival in 2021 and 2022. Fifteen people employed to work as bartenders and barbacks sued the defendants in September 2022.
The plaintiffs alleged that the defendants failed to pay minimum wage, overtime and tips required under the FLSA as well as Virginia’s Wage Payment Act and Minimum Wage Act.
In addition to themselves, the plaintiffs asserted their claims on behalf of at least 50 other tipped employees of the festivals. The plaintiffs say they worked 10-14 hours each day in beer tents; tips were to be pooled and divided among the tipped workers at each tent.
Instead, the plaintiffs say the defendants used a significant amount of the tips to pay managers, non-tipped employees and other vendors. The defendants paid them “for some, but not all hours worked” at a rate of $5 per hour, they claimed.
The plaintiffs later moved for conditional certification of their case as an FLSA collective action. Each of the plaintiffs — including several more who opted-in — submitted affidavits describing their experiences.
One plaintiff attested that he was a bartender at the 2021 festival and had personal knowledge that all of the class members were subject to the defendants’ unlawful payroll policies and unpaid wages and tips. The other declarations regarding each festival were similar.
To facilitate notice to the potential collective-action members, the plaintiffs requested an order for the defendants to produce names and contact information for all potential class members.
The defendants opposed class certification. After a hearing on the motion, the parties narrowed the scope of their disputes about the proposed notice.
Similarly situated
Moon said courts in this circuit generally follow a two-stage approach at the conditional certification stage of an FLSA claim. Only the first stage was discussed here, as the second stage occurs if the defendant moves for decertification after discovery.
“At the first stage, the court must 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,’” he described.
The judge noted that the FLSA doesn’t define the term “similarly situated” and the 4th U.S. Circuit Court of Appeals hasn’t yet interpreted its meaning.
“However, 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,’” Moon wrote.
This “fairly lenient” standard requires “only minimal evidence, such as factual evidence by affidavits or other means,” the judge added.
Here, Moon found the plaintiffs “more than met” that standard as their claims and “highly similar” affidavits “overlap to a great degree.”
“To be sure, Plaintiffs’ declarations could be supported by more detail,” Moon pointed out. “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 judge found nothing in the record disclosing any aspect of the plaintiffs’ claims or the underlying facts requiring any “highly individualized” inquiry, as the defendants argued.
“Numerous other courts have similarly held that bartenders can be similarly situated for purposes of joining together in an FLSA collective action,” he wrote.
Moon was unconvinced that the case was “unmanageable and inappropriate for collective treatment or adjudication.” He rejected the defendants’ belief that the case would “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.”
‘Cookie jar’
Gregg Greenberg, a Maryland employment lawyer, represents what is now a class of 17 plaintiffs who worked at the music festivals. He told Virginia Lawyers Weekly he looks forward to fleshing out the existence and nature of the defendants’ violations in discovery.
Under the FLSA, employers must show that a violation was the product of objective good faith, “meaning not what they thought was a reasonably prudent business decision, but what affirmative steps were taken to comply with the law,” he pointed out.
Both the FLSA and Virginia’s laws have similar liquidated damages provisions to multiply the amount of unpaid wages awarded to a claimant, as well as mandatory fee shifting, the litigator noted.
“If an employer were to stick their hand in the cookie jar and take pooled tips to pay non-tipped employees, even if it’s just a dollar, then they’ve tainted the entire process,” Greenberg explained.
He cautioned that a non-compliant employer could lose their entire tip credit for calculating the minimum wage a tipped worker should have been paid.
“That would mean the employee would be owed the differential plus the potential for multiple damages,” Greenberg pointed out.
He recommended that practitioners pay close attention to the notices required by the FLSA for employees who would earn the $2.13 hourly minimum tipped wage.
“Virginia’s notice requirements for tipped employees are unclear, but it’s well-settled with the FLSA,” he said.
