United States District Court, E.D. Louisiana
CRYSTAL SMITH, ET AL.
DASUYA ENTERPRISES LLC, ET AL.
ORDER & REASONS
J. BARBIER, UNITED STATES DISTRICT JUDGE
the Court are a Motion to Conditionally Certify FLSA
Collective Action and to Facilitate Notice (Rec.
Doc 67) filed by Plaintiffs Crystal Smith and
Tiffany Earin, an opposition thereto (Rec. Doc. 72) filed by
all Defendants, and a reply (Rec. Doc. 81) by Plaintiffs.
Having considered the motion and memoranda, the record, and
the applicable law, the Court finds that the motion should be
AND PROCEDURAL BACKGROUND
a collective action filed by Plaintiffs under the Fair Labor
Standards Act of 1938 (“FLSA”), 29 U.S.C. §
201 et seq. Plaintiffs bring this suit on behalf of
themselves and all others similarly situated to recover
allegedly unpaid minimum wages and overtime wages for work
they performed for Defendant Dasuya Enterprises, LLC
(“Dasuya”), which owns or operates Subway
franchises in New Orleans and Jefferson Parish. Dasuya was
allegedly founded in 2014 by Defendants Minakshi Pandit and
Hanu Kaushal in order for Kaushal and his wife, Defendant
Sandal Kaushal, to operate a Subway restaurant on Jefferson
Highway. Defendant Rohin Sharma is alleged to be the owner of
the franchise agreement for that location and to have been
involved in the day-to-day operation of the business along
with his wife, Defendant Harpreet Sharma. At some point in
2018, after this lawsuit was filed, Minakshi Pandit and Hanu
Saushal were removed as members of Dasuya and Rohin Sharma
became the sole member of Dasuya. In July 2018, Rohin Sharma
and Minakshi Pandit are alleged to have transferred their
interest in Dasuya to Defendants Jasbir Kaur and Narinder
Singh, who currently operate the business.
allege that they and their coworkers were employed by
Defendants as hourly employees and were regularly required to
work off the clock hours, for which they were not paid.
Plaintiffs further allege that they and their coworkers
regularly worked in excess of forty hours per week.
Plaintiffs claim that Defendants willfully failed to pay them
and other similarly situated employees for every hour worked,
thereby reducing their rate of pay to below the federal
minimum wage, in violation of 29 U.S.C. § 206, and
willfully failed to pay overtime wages for hours worked in
excess of forty hours per week, in violation of 29 U.S.C.
§ 207. Accordingly, Plaintiffs seek to recover unpaid
wages, interest, liquidated damages, and reasonable
attorney's fees and costs on behalf of themselves and
other similarly situated employees who worked for Defendants
during the past three years.
also assert individual claims against Defendants. Plaintiff
Smith brings a retaliation claim for her termination
allegedly because she attempted to make a worker's
compensation claim. Plaintiff Earin asserts a pregnancy
discrimination claim challenging her termination. Finally,
both Smith and Earin assert a claim for failure to pay final
seek to maintain their FLSA claim as a collective action
pursuant to 29 U.S.C. § 216(b) and move the Court to
conditionally certify a collective class of Defendants'
employees limited to the following:
All persons employed by Defendants since December 2016 who
were paid on an hourly basis but were required to work off
the clock hours for which they were not paid, thereby
depriving them of the federal minimum wage and/or were not
paid at an overtime rate of one and one-half times their
hourly rate of pay for each hour worked in excess of 40 per
week in violation of the Fair Labor Standards Act, 29 U.S.C.
201, et seq.
argue that the allegations in their pleadings as well as
their attached sworn declarations demonstrate clear violations
of the FLSA attributable to Defendants' policies and
practices that applied to all hourly employees. Plaintiffs
contend that this information establishes that there is a
group of similarly situated individuals entitled to receive
notice of this lawsuit. Plaintiffs request that the Court
approve the proposed notice and opt-in form, allow Plaintiffs
to notify potential opt-in plaintiffs, and direct Defendants
to provide the names, telephone numbers, email addresses, and
last known mailing addresses of potential opt-in members.
oppose conditional certification, arguing that Plaintiffs are
not covered by the FLSA. They contend that enterprise
coverage does not apply because none of the Defendants have
had a gross revenue exceeding $500, 000 and that individual
coverage does not apply because Plaintiffs were not engaged
in interstate commerce.
their reply, Plaintiffs first contend that the Court should
not consider merits-based arguments on FLSA coverage at the
conditional certification stage. Plaintiffs next argue that
they are covered individually by the FLSA because they
handled credit card, check, and cash transactions that
originated from out of state and also used materials and
equipment that originated from out-of-state vendors. Finally,
Plaintiffs assert that Defendants have provided no evidence
of their income to demonstrate that enterprise coverage does
FLSA “establishes the general rule that employees must
receive overtime compensation at one and one-half times the
regular rate for hours worked in excess of 40 hours during a
seven-day workweek.” McGavock v. City of Water
Valley, 452 F.3d 423, 424-25 (5th Cir. 2006) (citing 29
U.S.C. § 207). The FLSA affords workers a right of
action for violations of this rule. 29 U.S.C. § 216(b).
Such workers may sue individually or collectively on behalf
of “themselves and other employees similarly
situated.” Id. “District courts are
provided with discretionary power to implement the collective
action procedure through the sending of notice to potential
plaintiffs.” Lima v. Int'l Catastrophe Sols.,
Inc., 493 F.Supp.2d 793, 797 (E.D. La. 2007). The notice
must be “timely, accurate, and informative.”
Id. (citing Hoffman-La Roche, Inc., ...