Necessity is the mother of invention…
In Naider v. A-1 Limousine, (Dkt. No 14-2212, October 8, 2014), a case filed in federal court in New Jersey, the defendant attempted to preempt a FLSA collective action by filing a motion to dismiss very early on in the case. The defendant asserted that the Plaintiff had failed to sufficiently plead a valid collective action under the FLSA because the Plaintiff did not make substantial allegations that other employees were treated similarly. USDJ Wolfson denied the motion.
The plaintiff was a limousine driver and there were other drivers who performed similar job functions as Plaintiff. The Plaintiff alleged that he and other drivers routinely worked in excess of 40 hours a week, but were compensated by the same hourly rate for all hours worked, regardless of whether any of those hours were overtime. The plaintiff asserted that although he and other drivers received additional compensation in the form of so-called “gratuities,” these gratuities were not FLSA tips, because Defendant charged them as flat fees/service charges that were not given at the discretion of the customers.
Although Plaintiff had not moved for an initial certification of the collective action, Defendant sought to preemptively strike the collective action claims based on insufficient pleadings. The Court rejected that initiative, finding that the Plaintiff had made sufficient factual allegations, which, when assessed in the context of a motion to dismiss, stated a possible collective action. Importantly, Plaintiff alleged that many policies were in violation of the FLSA — no overtime and the use of flat fees/service charges as de facto gratuities. The Plaintiff argued that these practices applied to all similarly situated employees.
The Defendant did not dispute that Plaintiff was subjected to the alleged practices, but argued that the Complaint lacked any substantial allegations that these practices applied to similarly situated employees. However, at this juncture, based on Plaintiff’s pleadings, the Court ruled it was reasonable to infer that all drivers were treated similarly. Accordingly, the allegations were more than mere “speculation” and there could reasonably be, in fact other similarly situated employees.
It was worth a try.