Guzman v. Three Amigos SJL Inc.

117 F. Supp. 3d 516, 2015 WL 4597427
CourtDistrict Court, S.D. New York
DecidedJuly 30, 2015
DocketNos. 14 Civ. 10120(GBD)(GWG), 15 Civ. 823(GBD)(GWG)
StatusPublished
Cited by31 cases

This text of 117 F. Supp. 3d 516 (Guzman v. Three Amigos SJL Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guzman v. Three Amigos SJL Inc., 117 F. Supp. 3d 516, 2015 WL 4597427 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDI3R

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Yadira Guzman, Daniris Espinal, Evelyn Rodriguez, Janine Bonderenko, Jennifer Eller, and Kayla Atkins have filed the above-referenced actions against their former employers, Three Amigos SJL Inc., Three Amigos SJL Rest., Inc., Times Square Restaurant No. 1, Inc., Times Square Restaurant Group, Ltd., Selim “Sam” Zherka, and Dominica O’Neill for violations of the Fair Labor Standards Act, 29 U.S.C. §§ '201 et seq. (“FLSA”), and the New York Labor Law. On April 1, 2015, the two actions were consolidated for all purposes, including trial, under docket number 14 Civ. 10120.1 See Order Consolidating Cases, filed Apr. 1, 2015 (Docket # 14 in 14 Civ. 10120 and Docket # 12 in 15 Civ. 823), Plaintiffs now move to have this case conditionally approved as a collective action with notice being sent to “all individuals who worked at Cheetah’s as [519]*519entertainers.”2 PI. Mem. at 12. , For the following reasons, ..plaintiffs’ motion is granted.

1. BACKGROUND

A. Facts Alleged by Plaintiffs

The following facts have been alleged by plaintiffs in their declarations filed as part of the instant motion:

Defendants operate a business called Cheetahs Gentlemen’s Club & Restaurant (“Cheetahs”). See Declaration of Yadira Guzman, dated Apr. 6, 2015 (annexed as Ex. B to Swartz Decl.) (“Guzman Decl.”), ¶ 2; Declaration of Daniris Espinal, dated Apr. 15, 2015 (annexed as Ex. C to Swartz Decl.) (“Espinal Decl.”), ¶2; Declaration of Evelyn Rodriguez, dated Apr. 14, 2015 (annexed as Ex. D to Swartz Decl.) (“Rodriguez Decl.”), ¶ 1; Declaration of Janine Bonderenko, dated Apr. 13, 2015 (annexed as Ex. E to Swartz Decl.) (“Bonderenko Decl.”), ¶ 2; Declaration of Jennifer Eller, dated Apr. 9, 2015 (annexed as Ex. F to Swartz Decl.) (“Eller Decl.”), ¶ 1; Declaration of Kayla Atkins, dated Apr. 14, 2015 (annexed as Ex. G to Swartz Decl.) (“Atkins Deck”), ¶2. Plaintiffs all worked as “entertainers] / dancer[s]” at Cheetahs.3 Guzman Decl. ¶ 2; Espinal Decl. ¶ 2; Rodriguez Decl. ¶ 1; Bonderenko Decl. ¶ 2; Eller Decl. ¶ 1; Atkins Decl. ¶ 2. Plaintiffs worked at Cheetahs during various periods between 2007 and 2013, with some plaintiffs having worked, there for a few months and others having worked there as long as five years. See Guzman Decl. ¶ 2; Espinal Decl. ¶ 2; Rodriguez Decl. ¶ 1; Bonderen-ko Decl. ¶ 2; Eller Deck ¶ 1; Atkins Decl. ¶2. Each plaintiff had weeks when she worked over 40 hours per week and days when she worked over 10 hours per day. Guzman Deck ¶ 3; Espinal Deck ¶ 3; Rodriguez Deck ¶ 2; Bonderenko Deck ¶ 3; Eller Deck ¶ 2; Atkins Deck ¶ 3. However, none of plaintiffs’ hours worked were monitored or recorded by Cheetahs, and plaintiffs were never required to record the hours worked themselves. Guzman Deck ¶4; Espinal Deck ¶ 4; Rodriguez Deck ¶ 3; Bonderenko Deck ¶ 4; Eller Decl. ¶ 3; Atkins Deck ¶ 4.

During their employment, plaintiffs were not paid any hourly wages by Cheetahs for their work as entertainers. Guzman Deck ¶ 6; ■ Espinal Deck ¶ 6; Rodriguez Deck ¶ 5; Bonderenko Deck ¶ 12; [520]*520Eller Decl. ¶ 5; Atkins Decl. ¶ 6. When plaintiffs worked in excess of 40 hours per week, plaintiffs were not paid any overtime for the hours worked above 40. Guzman Decl. ¶7; Espinal Decl. ¶7; Rodriguez Decl. ¶6; Bonderenko Decl. ¶ 15; Eller Decl. ¶ 6; Atkins Decl. ¶7. When they worked in excess of 10 hours per day, plaintiffs were not paid any additional wages by Cheetahs. Guzman Decl. ¶ 8; Espinal Decl. ¶ 8; Rodriguez Deck ¶ 7; Bonderenko Decl. ¶ 14; Eller Decl. ¶ 7; Atkins Decl. ¶ 8. Cheetahs also unilaterally determined the entertainers’ method of compensation. Guzman Decl. ¶ 24; Espi-nal Decl. ¶ 24; Rodriguez Decl. ¶ 23; Bon-derenko Decl. ¶ 26; Eller Decl. ¶ 23; Atkins Decl. ¶ 24.

Plaintiffs were required to pay to Cheetahs a “house fee” of approximately $40 or $60 to $100 or $120 per shift worked, depending on the shift and time plaintiffs worked, a requirement that applied to all entertainers. See Guzman Decl. ¶ 10; Es-pinal Decl. ¶ 10; Rodriguez Deck ¶ 9; Bonderenko Deck ¶ 5; Eller Deck ¶ 8; Atkins Deck 1110. Additionally, plaintiffs were also required , to . pay fees if they arrived late to work or if they did not work a scheduled shift, even if they provided advance notice, another requirement that applied to all entertainers. Guzman Decl. ¶ 11; Espinal Deck ¶ 11; Rodriguez Decl. ¶10; Bonderenko Decl. ¶6; Eller Deck ¶ 9; Atkins Decl. ¶ 11.

Plaintiffs received tips from customers when they performed on stage and when they performed private “lap dances.” Guzman Deck ¶ 12; Espinal Deck ¶ 12; Rodriguez Deck ¶ 11; Bonderenko Decl. ¶ 7; Eller Deck ¶ 10; Atkins Deck ¶ 12. These tips were received directly from customers and did not pass through Cheetahs. Guzman Deck ¶ 12; Espinal Decl. ¶ 12; Rodriguez Deck If 11; Bonderenko Deck ¶7; Eller Deck ¶ 11; Atkins Decl. ¶ 12. However,' Cheetahs required plaintiffs to “tip out” other individuals who worked at Cheetahs, such as the “House Mom” and the DJ, each of whom plaintiffs paid at least $20 per shift. Guzman Deck ¶ 13; Espinal Deck ¶ 13; Rodriguez Deck ¶ 12; Bonderenko Deck ¶ 8; Eller Decl. ¶ 12; Atkins Deck ¶ 13. However, both the DJs and the “House Moms” had little or no contact with customers. Guzman Decl. ¶ 13; Espinal Deck II13; Rodriguez Deck ¶ 12; Bonderenko Deck ¶9; Eller D¿cl. ¶ 12; Atkins Deck ¶ 13. Plaintiffs were also required to “tip out” the “private room hostess” when performing work in a private room. Guzman Deck ¶ 13; Espinal Decl. ¶ 13; Rodriguez Deck ¶ 12; Bonder-enko Decl. ¶ 8; Eller Deck ¶ 12; Atkins Deck 1113. Cheetahs required all of its entertainers to similarly “tip out” the other individuals who’ worked at Cheetahs. Guzman Deck ¶ 13; Espinal Deck ¶ 13; Rodriguez Deck ¶ 14; Bonderenko Decl. If 10; Eller Deck ¶ 13; Atkins Deck If 13.

In addition to cash tips, plaintiffs also received tips in the form of “Cheetah Dollars,” which customers could purchase directly from Cheetahs. Guzman Decl. ¶ 14; Espinal Deck ¶ 14; Rodriguez Deck ¶ 13; Bonderenko Decl. ¶ 11; Eller Decl. ¶ 14; Atkins Deck ¶ 14. When plaintiffs exchanged the “Cheetah Dollars” for cash, Cheetahs retained 10% for itself. See Guzman ¶ 14; Espinal Deck ¶ 14; Rodriguez Deck T13; Bonderenko Deck ¶ 11; Eller Deck ¶ 14; Atkins Deck ¶ 14,

Throughout plaintiffs’ periods of employment, Cheetahs enforced a uniform policy, which required all of the entertainers to wear club-approved outfits, hairstyles, and make-up, and to purchase, launder, and maintain their uniforms at their own expense. Guzman Deck ¶ 16; Espinal Deck ¶ 15; Rodriguez Deck ¶ 15; Bonderenko Deck ¶ 17; Eller Deck ¶ 15; Atkins Deck ¶ 15. Entertainers were required to wear [521]*521approved bikini tops and bottoms when dancing on the “bar stage,” to wear gowns or dresses when dancing on the main stage, and to wear high-heeled shoes at all times. Guzman Decl. ¶ 15; Espinal Deck ¶ 15; Rodriguez Deck ¶ 15; Bonderenko Deck ¶ 17; Eller Deck ¶ 15; Atkins Deck ¶ 15. The uniforms required special treatment to maintain, and they were not worn as part of plaintiffs’ ordinary wardrobes. Guzman Deck ¶ 15; Espinal Deck ¶ 15; Rodriguez Deck ¶ 15; Bonderenko Deck ¶ 17; Eller Deck ¶ 15; Atkins Deck ¶ 15. Cheetahs also sold clothing and shoes that entertainers could use to fulfill their uniform requirement.

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117 F. Supp. 3d 516, 2015 WL 4597427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guzman-v-three-amigos-sjl-inc-nysd-2015.