Hallman v. Flagship Restaurant Group, LLC

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRITTNEY HALLMAN, on behalf of herself
and all other similarly situated;
Plaintiff,
vs.
FLAGSHIP RESTAURANT GROUP, LLC,
Defendant.
8:24CV222
MEMORANDUM AND ORDER
This matter is before the Court on the plaintiff’s motion for certification of a
collective action, Filing No. 82. The plaintiff asserts individual and collective claims for
violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). Plaintiff
Brittney Hallman, on behalf of herself and other similarly situated employees, asserts
defendant Flagship Restaurant Group, LLC (“Flagship”), operated unlawful tip credit
practices and failed to pay lawful overtime compensation. Filing No. 83 at 5.
I. Background
Flagship, a Nebraska company, owns and operates a number of restaurant brands
in several states1, including twenty locations of Blue Sushi Sake Grill (“Blue Sushi”). Filing
No. 63 at 1, ¶ 2. Hallman is a former Flagship employee at the Blue Sushi in Kansas City,
Missouri. Id., ¶ 1. During her employment, Hallman was a server and trainer. Id. at 9, ¶
50. In her second amended complaint, she alleges Flagship’s policies and practices
regarding servers and bartenders working at its restaurant violate the FLSA. Id. at 2, ¶
1 Flagship also owns Clio (1 location), Memoir (1 location), Pyro (1 location), Palma (1 location), Châm
Pang Lanes (1 location), Ghost Donkey (2 locations), Plank Provisions (3 locations), Anthem (1 location),
Blatt Beer & Table (3 locations), Flagship Commons (1 location), Revival House (1 location), and Roja
Mexican Grill (1 location).
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4. Hallman asks the Court to (a) conditionally certify a class of employees and (b) approve
of several notices and their dispatch, including a Notice (Filing No. 83-6), Consent to Join
Form (Filing No. 83-8) and Text Message notice (Filing No. 83-7).
(a) FLSA Conditional Class Certification
Hallman alleges she and other servers and bartenders received an hourly wage
below the federal minimum wage to take a credit against tips received. Filing No. 63 at
9, ¶ 51. Further, she alleges Flagship required the plaintiff to engage in non-tip producing
activities for more than 20 percent of her time at work. Id. at 10, ¶ 52. Hallman also
alleges Flagship failed to properly pay overtime wages when tipped employees worked
more than 40 hours per week. Filing No. 83 at 2. According to Hallman, Flagship
employed other servers/bartenders with the same job duties and pay structure as the
plaintiff. Filing No. 63 at 10, ¶ 53.
Hallman alleges Flagship required its servers and bartenders to share tips with
other non-tipped employees facilitated through its automated Point of Sales System
(“POS”). Filing No. 63 at 2. The POS calculated the tips received via cash or credit card
transactions and divided the total tips to servers/bartenders and other non-direct service
employees such as food runners, server assistants, supports staff, and sushi chefs. Id.
at 2–3, ¶ 9. Thus, the plaintiff alleges servers and bartenders received “less tips than
guests directly gave them as gratuities for their service.” Id. at 3, ¶ 13.
Further, the plaintiff states she did not request Flagship to impose the foregoing tip
pool policies and practices. Filing No. 63 at 3, ¶¶ 15–16. The tip-sharing practices were
designed, imposed, and administered by Flagship. Id. Hallman alleges Flagship only
verbally told its employees about the tip-sharing requirement, but the tip policy was
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neither mentioned in the employment manual nor posted in a conspicuous and accessible
place at the restaurant. Id. at 3–4. According to the plaintiff, when other servers and
bartenders complained about the tip pooling practices, Flagship’s management would
respond with statements such as: “It’s the policy” and “This is the way we do things.” Id.
at 3, ¶ 18.
In this motion, Hallman seeks FLSA conditional collective action certification of “All
people employed as servers/bartenders by Flagship Restaurant Group since June 14,
2021.”2 Filing No. 83 at 10. In support of her motion, Hallman submits her declaration
along with the declarations of Cara Cumberford, Catherine Howard, Claire Hutson, and
Brennen Zerbe. Id. at 5.
In her declaration, Hallman3 purports she was required to tip out “4% of total sushi
sales to the sushi chefs, 5% of drink sales to the bar, and 1% of total sale to support staff
. . ..” Filing No. 83-1 at 3 ¶ 18. Claire Hutson4 asserts the Dallas location would also
require servers and bartenders to tip out other employees. Filing No. 83-4 at 3, ¶ 17.
Hutson states, “In Austin, 1.25% of total sales went to server assistants such as food
runners and busboys, 4% of bar sales went to the bar, and 5% of sushi sales went to the
sushi chefs.” Id. at ¶ 18. Brennen Zerbe5 states he would have to tip out other employees,
mainly the sushi chefs, bartenders, bussers, and food runners. Filing No. 83-5 at 4, ¶ 20.
2 The plaintiff filed this action on June 14, 2024.
3 Hallman states she was employed at Blue Sushi in Kansas City, Missouri from late 2022 until June 2024.
Filing No. 83-1 at 1.
4 Hutson first worked at a Blue Sushi in Dallas, Texas from July 2019 to fall of 2021 as a server, bartender,
and occasional shift lead. Filing No. 83-4. In the fall of 2021, Hutson transferred to a Blue Sushi location
in Austin, Texas. Id. Hutson initially worked at a bartender, until she became a salaried manager in 2022.
Id. at 1. Hutson no longer works for Flagship as of July 2024. Id.
5 Zerbe worked at Blue Sushi at the Westwood, Kansas location from October 2021 to winter of 2023. Filing
No. 83-5 at 1. He moved to the Blue Sushi location in Kansas City, Missouri in February 2023, and he is
still currently employed there. Id.
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Specifically, Zerbe states 4% of his tips went to the sushi chefs. Id. at ¶ 21. Cara
Cumberford6 recalls having about 10 to 15 percent of her tips taken out for the “sushi
chef, host, and other non-service employees.” Filing No. 83-2 at 4, ¶¶ 24, 26. While
working at the Flagship Anthem Restaurant in Austin, Texas, Cumberford alleges she has
“seen their policies regarding pay and tip payouts for servers and bartenders are very
similar to the polices at Blue Sushi.” Id. at ¶ 29. Catherine Howard7 states part of her
tips was distributed to other employees, mainly sushi chefs, bartenders, and hosts, but
she did not specify the exact quantity. Filing No. 83-3 at 2, ¶ 10.
In her declaration, Hallman explains that during any given shift she would work
about one hour of non-tip generating side work before her shift, and during her shift, she
would work about 10 to 20 percent of non-tip generating side work.8 Filing No. 83-1 at 2,
¶¶ 5–6. Hutson states she worked about 20 to 30 percent of non-tip generating side
work9 as a bartender, as opposed to only one to two hours before or after her shift as a
server. Filing No. 83-4, at 2–3, ¶¶ 12, 16. Zerbe alleges he would work about one hour
of non-tip generating side work around closing time, plus 15 to 20 percent of non-tip
generating side work10 during his shift before closing time. Filing No. 83-5 at 2, ¶¶ 6, 10.
Cumberford alleges she was working about 30 to 40 percent of non-tip producing side
6 Cumberford worked at Blue Sushi in Westwood, Kansas from June 2021 to June of 2024. Filing No. 83-
2. In the summer of 2024, Cumberford began working at Flagship’s Anthem Restaurant in Austin, Texas.
Id. She remains employed at the Anthem restaurant. Id.
7 Howard worked at Blue Sushi in Des Moines, Iowa from June 2022 to April 11, 2024. Filing No. 83-3.
8 Hallman’s side work consisted of “folding napkins, restocking linens, restocking soy dishes, restocking
chopsticks, and refilling ice.” Filing No. 83-1 at 2, ¶ 7.
9 In both Dallas and Austin, Hutson’s side work consisted of taking down chairs, setting up tables, filling soy
sauces, cutting cucumbers and lemons, wiping down table, cleaning and scrubbing floors, refilling tea,
sweeping the restaurant, and preparing silverware and plates. Filing No. 83-4 at 2, ¶ 11.
10 Zerbe’s side work consisted of restocking glasses, getting ice, filling soy sauces, wiping down surfaces,
taking out trash, sweeping floors, deck brushing floors, drying floors, cleaning glasses, putting away sauces,
and wrapping soy sauce. Filing No. 83-5 at 2, ¶¶ 6, 9.
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work11 from the time the restaurant opened until the end of an opening shift. Filing No.
83-2 at 2, ¶ 10. Howard mentions she would work anywhere from 20 to 40 percent of
non-tip generating side work12 depending on the season and weekday. Filing No. 83-3 at
2, ¶ 8.
With regards to the tip pooling, Hallman asked a manager about her concerns but
the manager “never followed up with [Hallman] about it.” Filing No. 83-1 at 4, ¶ 21.
Hutson states she was told about the mandatory tip-out during onboarding, and she was
not given an option to opt-out. Filing No. 83-4 at 4, ¶ 20. Zerbe states13 he “always”
questioned whether the sushi chef tip out was proper, and he wondered why he had to
tip out server assistants even if they were not actually present. Filing No. 83-5 at 4, ¶ 23.
Zerbe asserts that when he asked the general manager about the tip out, he was told he
had to pay server assistant the full tip-out even if they did not work the entirety of their
shift. Id., ¶ 24. Cumberford states she expressed her concerns regarding her pay to the
managers, but “nothing ever changed.” Filing No. 83-2 at 4, ¶ 28. Howard alleges she
asked the managers about the tipping policies, and they told her “. . . it’s just the way it
was, and no option was given to change it.” Filing No. 83-3 at 2, ¶ 10.
11 Cumberford’s side work consisted of “filling soy sauces, stocking tea, stocking napkins, cleaning and
rolling silverware, dumping tea, cleaning drains, stocking ice, and cleaning the drink machine.” Filing No.
83-2 at 2, ¶ 11.
12 Howard’s side work consisted of cleaning, getting ice, resetting tables, taking up/down chair, sweeping
the floor, assembling the soda machine, making tea/coffee, folding napkins, cleaning windows, scrubbing
the floor, squeegeeing the floor, folding linen, cutting cucumbers, dumping tea, and cleaning soy. Filing No.
83-3 at 1–2, ¶¶ 5, 6.
13 Zerbe further states, “I had worked at other sushi establishments where the sushi chefs interacted with
the guest, and had seen them earn tips there. But at Blue sushi, the sushi chefs rarely if ever interacted
with the guests. They were more like typical back-of-house workers at other restaurants.” Filing No. 83-5
at 4, ¶ 23.
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(b) Notices
In addition to the conditional collective class action certification, Plaintiff asks this
Court to approve the plaintiff’s proposed collective action Notice, Consent to Join Form,
and Text Notice to all class members with a 90-day opt-in deadline from the date of
mailing. Filing No. 82. The proposed text message addresses servers/bartenders at
“Flagship Restaurant Group, including Blue Sushi Sake Grill, Roja Mexican Grill, Blatt
Beer & Table, Plank Seafood Provision, or Anthem” with a hyperlink to the full Notice.
Filing No. 83-7. Hallman also requests the Court to order the defendant to provide
potential class member information14 within 10 days of this Court’s Order, including
employee’s full name, last known address, phone number, and email. Filing No. 83 at 13.
The plaintiff asks the Court to require defendant to post the Court-approved Notice and
Consent to Join Forms in conspicuous locations at all relevant worksite where job notices
are typically posted. Filing No. 82, ¶ 4. Additionally, in its brief, the plaintiff asks the Court
to authorize a reminder notice by mail and/or email to putative class members 30 days
before the 90-day opt-in deadline. Filing No. 83 at 12.
The defendant opposes the motion asserting the plaintiff’s evidence fails to
establish that all servers and bartender of every Flagship restaurant are similarly situated.
Filing No. 86 at 2. Defendant emphasizes that its different restaurants across several
states15 have different minimum wage, overtime requirements, and tipping arrangements.
Id. at 3, 5. Flagship also argues its compensation, including tip pools, are different
14 In its brief, Plaintiff asks “the names, last known addresses, dates of employment, job title, phone number,
and email addresses of each prospective member of the class.” Filing No. 83 at 11.
15 Flagship operates numerous restaurants in several state, including restaurants locate in Nebraska,
Missouri, Texas, Arizona, Illinois, Alabama, Colorado, Iowa, Indiana, Kansas, Kentucky, Ohio, and
Tennessee. Filing No. 87-4 at 1, ¶ 5.
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between restaurants depending on the type of restaurant and location. Out of the thirteen
unique restaurant concepts Flagship operates, only the Blue Sushi concept employs
sushi chefs. Filing No. 86 at 4. The defendant offers Mark Kantaras’s16 affidavit stating
Anthem does not employ sushi chefs and it does not include them in the tip pool
arrangement. Filing No. 87-4. Further, the defendant highlights how only one individual,
Cumberford, alleged to have worked at a Flagship restaurant other than Blue Sushi. Filing
No. 86 at 8. Kantaras asserts sushi chefs participate in certain tip pool arrangements
with other employees because they prepare food in a manner that also creates a unique
guest experience. Filing No. 87-4 at 2, ¶ 8.
Arguing in the alternative, the defendant urges the Court to limit the putative class
to just those servers and bartenders employed by Blue Sushi Sake Grill Concept during
the relevant timeframe. Filing No. 86 at 2. The defendant asks the Court to allow a 45-
day opt-in deadline as opposed to the 90-day opt-in deadline proposed by the plaintiff.
Id. at 11.
Flagship also proposes several changes to the Consent to Join Form, Text
Message, and Collective Action Notice that was submitted by the plaintiff. Filing No. 87-
1 – Filing No. 87-3. The defendant’s suggestions mainly revolve around the limited
putative class definition and 45-day opt in period. Id. Flagship proposes a change in the
plaintiff’s notice heading17 to a different heading18 to prevent the appearance of suit
endorsement by this Court. Filing No. 87-1. Additionally, the defendant urges this Court
16 Mark Kantaras is an employee of Flagship as the Director of Operations. Filing No. 87-4 at 1.
17 The plaintiff’s proposed notice has the following heading: “IN THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA” (Filing No. 83-6).
18 The defendant proposes changing the Notice’s heading to: “THIS NOTICE AND ITS CONTENTS HAVE
BEEN AUTHORIZED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA,
BY THE HONORABLE JOSEPH F. BATAILLON. THE COURT HAS TAKEN NO POSITION IN THE CASE
REGARDING THE MERITS OF THE PARTIES’ CLAIMS OR DEFENSES” (Filing No. 87-1).
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to deny the proposed text message, and reminder requests by the plaintiff. Filing No. 86
at 10–12. With regards to the information request, Flagship suggests it should only need
to provide the name and last known mailing addresses of potential members within 14–
21 days of this Court’s order. Id. at 12.
II. Law
Section 216(b) of the FLSA allows named plaintiffs to sue “for and on behalf of . .
. themselves and other employees similarly situated.” 29 U.S.C. § 216(b). However, “[n]o
employee shall be a party plaintiff to any such action unless he gives his consent in writing
to become such a party and such consent is filed in the court in which such action is
brought.” Id. Unlike a Rule 23 collective actions containing the “opt-out” provision, the
FLSA collective action functions as an “opt-in” lawsuit, where plaintiffs must consent to
join the suit. Chin v. Tile Shop, LLC, 57 F. Supp. 3d 1075, 1082 (D. Minn. 2014).
The FLSA “leaves the collective action procedures—beyond the requirement of a
written opt-in—open.” Campbell v. City of Los Angeles, 903 F.3d 1090, 1108 (9th Cir.
2018). Thus, many circuit courts, including the Second, Third, Ninth, Tenth, and Eleventh
Circuits, have endorsed a two-step analysis.19 See Myers v. Hertz Corp., 624 F.3d 537,
553–54 (2d Cir. 2010); Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir.
2013); Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678, 681–83 (9th
Cir. 2025); Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1102 (10th Cir. 2001);
Morgan v. Fam. Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008). At the first
step,20 the plaintiff moves the court to authorize notice to a proposed collective class by
19 Neither the plaintiff nor the defendant have objected to the use of the two-step process.
20 This step is often called the “preliminary certification”, “provisional”, or “conditional” certification of an
FLSA collective action. Campbell, 903 F.3d at 1101.
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making “a threshold showing that there is a material factual dispute as to whether the
proposed collective is similarly situated.” Richards v. Eli Lilly & Co., 149 F.4th 901,
906,913 (7th Cir. 2025). At the second step,21 the defendant typically moves to challenge
whether the collective class is similarly situated. Id.
Other circuits, such as the Fifth and Sixth Circuit, conduct a one-step analysis
focusing on whether other employees are sufficiently similarly situated to the plaintiff with
a more stringent approach. Newson-Pace v. United States, 177 Fed. Cl. 262, 274 (2025);
See, e.g., Swales v. KLLM Transp. Servs., L.L.C., 985 F.3d 430, 441–43 (5th Cir. 2021);
Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023). Although the
Eighth Circuit has not articulated a standard for conditionally certifying FLSA classes, the
majority of the district courts in the Eighth Circuit use the two-step analysis. See Haworth
v. New Prime, Inc., 448 F. Supp. 3d 1060, 1066 (W.D. Mo. 2020); Kautsch v. Premier
Commc'ns, 504 F. Supp. 2d 685, 688–89 (W.D. Mo. 2007); Davis v. NovaStar Mortg., Inc.,
408 F. Supp. 2d 811, 815 (W.D. Mo. 2005). As such, this court will employ the two-step
analysis used within several circuit courts, including the Eight Circuit’s district courts.
(a) FLSA Conditional Class Certification
The FLSA does not define “similarly situated” nor does it provide a test to
demonstrate if a prospective collective action members “similarly situated” to the plaintiff.
“The plaintiff bears the burden of establishing he or she is similarly situated to other
members of the proposed class.” Haworth, 448 F. Supp. 3d at 1066 (quoting Taylor v.
Bear Commc'ns, LLC, No. 4:12-CV-01261-BCW, 2013 WL 3270971, at *2 (W.D. Mo. June
27, 2013) (citation omitted)). “Plaintiffs may be similarly situated when ‘they suffer from
21 This step is often called the decertification or certification of an FLSA collective action. Campbell, 903
F.3d at 1101.
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a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity
with that policy proves a violation as to all the plaintiffs.’” Bouaphakeo v. Tyson Foods,
Inc., 765 F.3d 791, 796 (8th Cir. 2014) (“Bouhaphakeo I”), aff’d, Tyson Foods, Inc. v.
Bouaphakeo, 577 U.S. 442 (2016) (quoting Thiessen, 267 F.3d at 1103); see also
Campbell, 903 F.3d at 1117 (“Party plaintiffs are similarly situated, and may proceed in a
collective, to the extent they share a similar issue of law or fact material to the disposition
of their FLSA claims.”).
During the first stage, “the ‘similarly situated’ threshold requires only a ‘modest
factual showing.’” Kautsch, 504 F. Supp. 2d at 689 (quoting Realite v. Ark Restaurants
Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998)). At the initial conditional-certification
stage, the plaintiffs' burden is not rigorous; they must only show that there is a “colorable
basis for their claim” and “that a class of similarly situated plaintiffs exists.” Smith v.
Heartland Auto. Servs., Inc., 404 F. Supp. 2d 1144, 1149 (D. Minn. 2005). Courts do not
evaluate the merits of the plaintiff's claim at this early stage. Haworth, 448 F. Supp. 3d at
1066. Instead, a plaintiff need only establish a colorable basis for a claim that the putative
class members were together the victims of a single decision, policy, or plan. Id. This
lenient standard generally results in conditional certification of a representative class. Id.
Any doubts in the notice stage should favor allowing conditional certification. Id.; see also
Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (noting that the “similarly
situated” standard is considerably less stringent than Rule 23(b)(3) class action
standards).
Courts have held that plaintiffs “need show only that their positions are similar, ‘not
identical to the positions held by the putative class members.’” Smith, 404 F. Supp. 2d at
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1149 (quoting Grayson, 79 F.3d at 1096); see also Morisky v. Pub. Serv. Elec. & Gas Co.,
111 F. Supp. 2d 493, 498 (D.N.J. 2000) (“[A] collective action would only be appropriate
where the plaintiffs make some showing that the nature of the work performed by other
claimants is at least similar to their own.” (internal quotations and alterations omitted).
At the decertification stage, however, the standard is stricter, and three factors are
analyzed: (1) the disparate factual and employment settings of the individual plaintiffs; (2)
the various defenses available to defendant that appear to be individual to each plaintiff,
and (3) fairness and procedural considerations. Douglas v. First Student, Inc., 888 F.
Supp. 2d 929, 933 (E.D. Ark. 2012). Ultimately, whether “disparate factual and
employment settings of the individual plaintiffs” are sufficient to bar collective treatment is
a question for the second stage of the certification process. Id.
(b) Notices
“The sole consequence of conditional certification is the sending of court-approved
written notice to employees, . . . who in turn become parties to a collective action only by
filing written consent with the court, § 216(b).” Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 75 (2013). The Supreme Court has reasoned that “[c]ourt authorization of
notice serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting
cutoff dates to expedite disposition of the action.” Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165, 172 (1989). Although the FLSA does not mandate any process for
providing notice, courts have the discretion to facilitate the notice process. Id. at 165. “By
monitoring preparation and distribution of the notice, a court can ensure that it is timely,
accurate, and informative.” Id. at 166.
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The court overseeing the action has discretion to authorize the sending of notice
to potential plaintiffs, informing them of the opportunity to opt in. Hoffmann-La Roche
Inc., 493 U.S. at 170–71; see also Bigger v. Facebook, Inc., 947 F.3d 1043, 1046–47 (7th
Cir. 2020). In the notice, the court must respect judicial neutrality and avoid even the
appearance of endorsing the action’s merits. Id. at 174. Further, inclusion of the Court’s
name at the top of the Notice “is improper because it may be misconstrued as judicial
support for the plaintiffs’ litigation.” Martinez v. Cargill Meat Sols., 265 F.R.D. 490, 499
(D. Neb. 2009) (citing Woods v. New York Life Ins. Co., 686 F.2d 578, 581 (7th Cir. 1982).
Under 29 U.S.C. § 256, an opt-in class member's claim for relief under FLSA does
not commence until the date the opt-in member's written consent to join the representative
action is filed. Sperling v. Hoffmann-La Roche, Inc., 24 F.3d 463, 464 (3d Cir. 1994). The
notice period under the FLSA generally should be measured from the date of the court's
order granting the motion for conditional certification, not from the date that the complaint
was filed. Ritz v. Mike Rory Corp., No. 12 CV 367 JBW RML, 2013 WL 1799974, at *3
(E.D.N.Y. Apr. 30, 2013); see also Doucoure v. Matlyn Food, Inc., 554 F. Supp. 2d 369,
373 (E.D.N.Y. 2008) (stating the end point for the lookback period for providing notice is
generally the date of the notice, i.e., notice of pendency would be provided to potentially
similarly-situated plaintiffs employed by defendant in three-year period preceding date of
the notice).
Under the FLSA, the statute of limitations is “two years after the cause of action
accrued . . . except that a cause of action arising out of a willful violation may be
commenced within three years after the cause of action accrued.” 29 U.S.C. § 255(a).
Courts have generally held that where willfulness is in dispute, a three-year statute of
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limitations applies at the conditional certification stage. Ritz, 2013 WL 1799974, at *3. A
“willful” violation of the FLSA occurs when “the employer either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by the statute.” McLaughlin
v. Richland Shoe Co., 486 U.S. 128, 133 (1988); see also Jarrett v. ERC Props., Inc., 211
F.3d 1078, 1082 (8th Cir. 2000). To be considered willful, the employer's conduct must
be more than negligence. McLaughlin, 486 U.S. at 133.
Finally, many district courts make a discretionary call to limit the opt-in periods,
typically ranging from 45–90 days. See Chin, 57 F. Supp. 3d at 1094 (approving 90-day
notice opt-in period); Ondes v. Monsanto Co., No. 4:11CV197 JAR, 2012 WL 13055951,
at *5 (E.D. Mo. Jan. 11, 2012) (adopting a 90-day notice period); Martinez, 265 F.R.D. at
501. Sandoval v. Serco, Inc., No. 4:18-CV-01562 JAR, 2019 WL 13123412, at *4 (E.D.
Mo. July 29, 2019) (allowing a 60-day opt-in period).
III. Discussion
(a) FLSA Conditional Class Certification
The Court finds the plaintiff’s motion for conditional certification should be granted.
Based on the factual record, the Court finds the plaintiffs are likely similarly situated
employees based on potential FLSA violations, that if proven, would give rise to class-
wide liability. Hallman has met her lenient burden of establishing she and the collective
class members were victims of a single decision, policy, or plan. See Haworth, 448 F.
Supp. 3d at 1066.
Although there are some different accounts to the wage amount and required
hours, many of the declarants share similar perspectives. For instance, many of the
employees allegedly did not get information regarding the tip pooling, aside from verbal
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confirmation. Even on occasions where employees, such as Hallman and Howard, asked
for clarification from managers, the employees were dismissed or given no follow up.
Further, Hutson and Zerbe, allege they were explicitly told the tip pooling was mandatory,
but the tip pooling policy was not listed in the employee handbooks or employment
information.
The Court notes some of the tasks listed by the declarants are restaurant specific
such as restocking soy dishes, restocking chopsticks, wrapping soy sauce, and cutting
cucumbers. However, many of the employees have other similar non-tip generating
activities such as rolling silverware, cleaning, sweeping the floor, making tea/coffee,
setting up tables, restocking linen, stocking napkins, wiping chairs, wiping tables, cleaning
drains, and taking out the trash. Even if some tasks only apply to Blue Sushi, a significant
number of other tasks could apply to any, or most, restaurants across the country.
The defendant argues every restaurant varies based on location and concept.
Also, Flagship asserts only the Blue Sushi concept contains the sushi chefs. However,
all the declarants mentioned tipping out to other employees aside from sushi chefs. For
instance, Hallman, Hutson, and Zerbe, mention sharing tips with support staff and/or
server assistants. Additionally, Cumberford and Howard state they shared tips with other
non-service employees such as hosts. It is likely Flagship’s other restaurants have
support staff, server assistants, and/or hosts at other restaurants.
Arguing in the alternative, Flagship contents the class should include only Blue
Sushi employees. This is because out of all five declarants, only one of them has worked
at another restaurant. However, the employee that worked at another restaurant, Cara
Cumberford, alleges the wage and tip practices she saw at Blue Sushi were very similar
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to the wage and tip practices at Anthem. Additionally, Blue Sushi is Flagship’s most
common concept with twenty locations as opposed to the other concepts that have at
most, three locations. It is possible that the practices of its most common restaurant carry
over to other restaurants.
Hallman has satisfied her burden at the first stage of the certification process.
Flagship’s arguments in opposition to the collective class certification are the sort of merit-
based inquiries that are properly addressed at the second stage, also known as the
decertification. See Douglas, 888 F. Supp. 2d at 929, 933. Thus, the Court finds Plaintiff’s
motion for conditional collective class certification should be granted. Further, the Court
finds a collective class consisting of the following should be certified in this case: “All
people employed as servers/bartenders by Flagship Restaurant Group since June 14,
2021.”
(b) Notices
The Court has reviewed Plaintiff’s proposed Notice (Filing No. 83-6) and the
defendant’s proposed Notice heading (Filing No. 87-1). See Hoffmann-La Roche Inc.,
493 U.S. at 174. The Court will adopt the defendant’s proposed Notice heading to avoid
the appearance of endorsement by this Court. The other proposed changes to the Notice
are minimal and lead to inconsequential disparities; thus, the rest of the Notice will remain
as proposed by the plaintiff. The Court instructs the plaintiff to modify its heading to the
defendant’s proposed heading.22 Further, the Court instructs the plaintiff to insert relevant
22 The defendant’s proposed Notice heading states: “THIS NOTICE AND ITS CONTENTS HAVE BEEN
AUTHORIZED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA, BY
THE HONORABLE JOSEPH F. BATAILLON. THE COURT HAS TAKEN NO POSITION IN THE CASE
REGARDING THE MERITS OF THE PARTIES’ CLAIMS OR DEFENSES” (Filing No. 87-1).
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information in the placeholders of the document, such as the class administrator’s phone
number, the date of this order, and the date of mailing, on the Notice before dispatch.
Next, the Court finds the Consent to Join Form (Filing No. 83-8) requires minor
changes. The plaintiff shall amend the Form to conform to the defendant’s proposed
changes, except for the proposed changes in the first two lines. Aside from the first two
lines of the Consent to Join Form, the plaintiff shall modify the rest of the form according
to Defendant’s proposed edits.
Flagship has not shown good cause to an opt-in period less than 90 days. Given
Flagship operates several restaurants across multiple states, the Court finds a 90-day
opt-in period is appropriate. Thus, this collective action will contain a 90-day opt-in period
from the date of this Order.
The Court authorizes the plaintiff to email and mail the Notice (Filing No. 83-6) and
Consent to Join Form (Filing No. 83-8) to potential class members. Also, Hallman asks
the Court to require Defendant to post the Court-approved Notice and Consent to Join
Forms in conspicuous locations at all relevant worksites, such as breakrooms, employee
bulletin boards, or next to time clocks, the entirety of the 90-day opt-in period. The Court
grants the request to post the Notice and Form in conspicuous locations at all relevant
worksites during the 90-day opt-in period.
Hallman proposes sending a reminder to potential class members but does not
specify if the reminder consists of the Notice, or a separate document. Further, Hallman
asks the Court to authorize a text message (Filing No. 83-7) to potential class members
who have not responded 30 days before the opt-in deadline. The Court finds a reminder
text message potentially invasive to the recipients of the message; thus, the Court denies
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Plaintiff’s request to send the text message reminder. However, the Court grants the
plaintiff leave to email a reminder consisting of the Notice (Filing No. 83-6) and Consent
to Join Form (Filing No. 83-8) for potential members who have not responded within 30
days before the end of the 90-day opt-in period.
Finally, Flagship shall produce to the plaintiff the first and last name, last known
mailing addresses, and email address for potential opt-in plaintiffs, in an electronically
manipulable format, such as a spreadsheet, within 21 days of the date of this order.
THEREFORE, IT IS SO ORDERED THAT:
1. Plaintiff’s motion for conditional certification of the FLSA collective class
action (Filing No. 82) is granted. This action is certified as an FLSA
collective class action consisting of: “All people employed as
servers/bartenders by Flagship Restaurant Group since June 14, 2021.”
2. The FLSA collective class action shall have an opt-in period of 90 days from
the date of this order.
3. Plaintiff’s proposed Notice (Filing No. 83-6), and Consent to Join Form
(Filing No. 83-8), modified as set forth in this Memorandum and Order, are
approved.
4. Plaintiff is granted leave to send the approved Notice (Filing No. 83-6) and
Consent to Join Form (Filing No. 83-8) to potential opt-in plaintiffs via U.S.
mail and email.
5. Plaintiff is denied leave to follow up with a text notice to potential collective
members who do not respond within 30 days before the opt-in deadline.
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6. Defendant shall post the Notice (Filing No. 83-6) and Consent to Join From
(Filing No. 83-8) in relevant worksites.
7. Defendant shall provide to the plaintiff the first and last name, last known
mailing addresses, and email address, in an electronically manipulable
format, such as a spreadsheet, within 21 days of the date of this order.
Dated this 7th day of November 2025.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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