On August 6, 2013, the United States District Court ruled against Astoria Brewhouse (“Defendant”) in their motion to dismiss several claims filed by former employee/bartender Nicholas Ritz (“Ritz”) alleging violations of the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). The Defendant’s motion to dismiss was regarding a previous offer made to Ritz which it believed made the Plaintiff’s claims moot. More specifically, after Ritz received class certification in order to notify other current and former Astoria Brewhouse employees whose FLSA and NYLL rights were violated, the Defendants made what they believed to be a full offer of potential damages. Ritz did not respond to the offer, thus rejecting it, because it failed to address the claims of other current and former Astoria Brewhouse employees. In light of Ritz’s rejection, the Defendant moved to dismiss the lawsuit as they claimed recent Supreme Court of the United States (SCOTUS) decision, Genesis Healthcare Corp. v. Symczyk held that when a full offer is made to a plaintiff and it is nonetheless rejected, their claims become moot and the Court has the duty to dismiss the case. Ritz did not agree with this viewpoint as Fitapelli & Schaffer Partner, Brian Schaffer, stated during oral argument “the defendant is using the Rule 68 here as a tool to pick off plaintiffs and effectively short-circuit the collective action mechanism which was explicitly authorized by Congress in Section 216(b) of the Act.”
Judge Weinstein of the Eastern District of New York, did not agree with the Defendants sentiment that Ritz’s claims should be dismissed and instead held that the SCOTUS precedent from Genesis did not apply. More specifically, Judge Weinstein stated,
“Unlike the instant case, in Genesis, at the time of defendant’s offer of judgment, plaintiff had not moved for conditional certification under the FLSA. Nor had the trial court ruled on the issue… [there] the Court did not reach this question and instead ‘assume[d], without deciding, that defendant’s Rule 68 offer mooted plaintiff’s individual claim.’ It was only after assuming mootness that the Court analyzed consequence… A case is dismissed as moot when an offer of full relief to the named plaintiff is rejected and no other parties have opted in the litigation despite reasonable opportunity to do so, especially if no motion for conditional certification has been made.”
In the instant case, conditional certification was already granted yet Ritz was not given the opportunity to inform other current and former Astoria Brewhouse employees of their right to opt into the case. Therefore Judge Weinstein properly held that the Defendants motion to dismiss would need to be rejected and Ritz would need to be provided more time (60 days) to inform the certified class of their opportunity to join the case. In Judge Weinstein’s words, “anything else would frustrate the statute.”
Astoria Brewhouse is owned, operated and controlled by the Mike Rory Corporation, Sean Straw and Brendan Straw and is run as a bar as well as a dining area which features an outdoor space utilized year round. Since opening in 2006, Astoria Brewhouse has served as an Astoria drinking establishment which can hold events for parties with up to 200 guests. The Defendants also own and operate the Broadway Station Bar and Restaurant, Ditmars Station Bar, and Vertigo Bar and Restaurant. Ritz was employed by the Defendants as a Bartender at Astoria Brewhouse from March through November 2011. According to Ritz, the Defendants routinely fail to pay minimum wage, overtime and spread of hours pay, continuously shave time off their employees time cards and unlawfully deduct from their pay for walk outs and unpaid customer bills at the end of each night. The Defendants have yet to refute these claims.
Current and former tipped workers at Astoria Brewhouse or any other restaurant owned by the Mike Rory Corporation, Sean Straw or Brendan Straw such as the Broadway Station Bar and Restaurant, Ditmars Station Bar, and Vertigo Bar and Restaurant, should contact Fitapelli & Schaffer, LLP, (212) 300-0375. The Employment Lawyers at Fitapelli & Schaffer have successfully represented many club, bar and restaurant workers for unpaid wages including Minimum Wage, Overtime and Tips.
Anyone who works or has worked at a restaurant, in a tipped or non-tipped position, within the past six years may have a wage claim. Please contact the New York City employment lawyers at Fitapelli & Schaffer, LLP, (212) 300-0375, to schedule a free consultation so that we can discuss your rights under the FLSA and the NYLL.