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Judge grants Conditional Certification of Collective Action in the Eastern District of New York

Restaurant PreparationRosario v. Baldwin Tavern Inc. d/b/a/ Kitty O’ Hara, and David Baker, individually, and Shay Leavy, individually. Docket No.: 17-cv-05879-SJF-ARL
As previously reported on this website, in Rosario v. Baldwin Tavern Inc. d/b/a/ Kitty O’ Hara, et. al., on October 6, 2017, Lead Plaintiff Mr. Rosario, on behalf of himself and those similarly situated, filed a collective action lawsuit against Baldwin Tavern Inc. d/b/a/ Kitty O’ Hara, et al. alleging willful violations of the Fair Labor Standards Act (“FLSA”), the New York Labor Law (“NYLL”), and the New York Comp. Codes, Rules, and Regulations (“NYCCRR”), including the failure of Defendants to compensate Plaintiff at the minimum wage rate and for overtime wages. The factual allegations of the case are referenced in our December 2017 blog post and are summarized as follows.

  • Defendants employed Plaintiff to work as a kitchen staff employee from around July 2014 through August 9, 2017;
  • Plaintiff Rosario’s duties consisted of washing dishes, cooking and preparing food, and cleaning the restaurant before it opened;
  • Throughout the entirety of his employment, Defendants required Plaintiff to work, and Plaintiff did work a total of between fifty-two and a half and fifty-five hours per week without a scheduled or uninterrupted break;
  • On each workday that Plaintiff worked for Defendants from January 2016 to August 9, 2017, he worked for at least eleven consecutive hours;
  • From the beginning of his employment until December 2016, Defendants paid Plaintiff $9.00 per hour for all hours worked per week. From January 2017 until the end of his employment, Defendants paid Plaintiff $13.00 per hour for all hours worked per week

Straight-time rate is particularly important because when a non-exempt employee works over forty hours per week, the employer is required by law to pay the employee at 1.5x his/her straight-time rate of pay for each hour worked in excess of forty. The additional pay is called the overtime rate. In this case, Defendants paid Plaintiff at his straight-time rate of pay for all hours worked. Thus, Defendants failed to pay Plaintiff at the rate of one and one-half times his regular rate of pay for any hour that Plaintiff worked in a week in excess of forty. Defendants violated rights guaranteed to Plaintiff by the overtime provisions of the FLSA, the NYLL, and the NYCCRR. 

Moreover, in accordance with the NYLL, on each day that an employee works more than ten consecutive hours from the beginning of a shift to the end, the employee must receive an additional hour’s pay at the New York State minimum wage rate. Although his spread of hours from the beginning of each shift to the end exceeded ten on most workdays between January 2016 until August 9, 2017, Defendants failed to compensate Plaintiff Rosario with an additional hour’s pay at minimum wage for any of those days.

Additionally, the NYLL requires that employers furnish employees with wage statements containing specific categories of accurate information on each payday. However, on each occasion when they paid Plaintiffs, Defendants failed to provide Plaintiff with proper wage statements that accurately listed his actual hours worked for that week.

Finally, both the FLSA and the NYLL prohibit retaliation for raising good faith complaints of practices made unlawful under the FLSA. In direct response to Plaintiff’s complaint about Defendants not paying him overtime pay, Defendant Baker further violated the law by terminating Plaintiff’s employment on August 9, 2017.
Certification of Collective Action

In this case, pursuant to the request of the Plaintiff, the judge reviewed claims that Plaintiff brought forward alleging that there are additional workers in the same "class" (performing the same or similar duties) whose rights have been violated. After reviewing the facts of this case, Judge Sandra J. Feuerstein granted "conditional certification" allowing the case to proceed as a collective action enabling any current and former kitchen workers who were not paid properly to join the lawsuit and seek redress for Defendants’ failure to compensate them in accordance with the law.

If you or a person you know worked for the Defendants named in the lawsuit during the time period of October 6, 2011 – present or has information that may be relevant to this case, contact Borrelli & Associates, P.L.L.C. as soon as possible through our website,, or by phone: (516) 248-5550, (516) ABOGADO, and (212) 679-5000.

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