In Huertero-Morales v. Raguboy Corp., the Southern District denied a motion for conditional certification of a collective action consisting of various restaurant workers paid on an hourly basis. See No. 17-CIV-2429 (JCF) (S.D.N.Y. Sept. 12, 2017). The plaintiff alleged that he and other workers were required to work off-the-clock and that they participated in an invalid “tip pool” because a manager received a portion of the tips. The Court found that the plaintiff’s motion was plagued by “general and conclusory allegations.”

The Court acknowledged that the two-step Myers v. Hertz Corp., 624 F.3d 537 was “not stringent,” but also noted that “certification is not automatic” and found the plaintiff’s evidence and allegations wanting. For example, while the plaintiff plead a claim for failure to pay the minimum wage, the plaintiff nevertheless alleged that he and all other workers were paid $7.50/hour, $.25/hour in excess of the minimum wage. Likewise, while the plaintiff alleged that a manager participated in the “tip pool,” a violation under the FLSA only exists if, without the tip credit, the employee’s compensation falls short of the minimum wage. Here too, the Court found the plaintiff failed to provide supporting allegations.

The Court also commented that, as a general matter, the plaintiff failed to provide any details that would warrant extending his allegations to other workers. While he stated that “other employees…frequently worked in excess of hours that they were paid for,” he only identified a handful by their first name, did not explain the reason(s) for the unpaid work, and failed to identify when or even at what restaurant these alleged violations occurred. Ultimately, the Court denied his motion because he “provide[d] no details about his conversations with other employees and provide[d] no affidavits from any other employees corroborating his claims.

Huertero-Morales serves as an apt reminder that conditional certification of a collective is not automatic. An employer faced with a conditional certification motion should weigh the sufficiency of the allegations against cases like this to determine the chances of a successful opposition.