Sears et al v. Os Restaurant Services, LLC et al

Middle District of Florida, flmd-8:2016-cv-01115

COMPLAINT against BLOOMIN' BRANDS, INC., OS Restaurant Services, LLC with Jury Demand (Filing fee $ 400 receipt number TPA036534) filed by Elizabeth Thomas, David Sears.

Interested in this case?

Current View

Full Text

4 PageID 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA CASE NO. DAVID SEARS and ELIZABETH THOMAS, individually and on behalf of others similarly situated, Plaintiffs, v. OS RESTAURANT SERVICES, LLC; and BLOOMIN' BRANDS, INC., together d/b/a OUTBACK STEAKHOUSE, Defendants. _________________________________________/ COLLECTIVE ACTION COMPLAINT Plaintiffs David Sears and Elizabeth Thomas (collectively "Plaintiffs"), individually and on behalf of all others similarly situated, by their attorneys, Shavitz Law Group, P.A., upon personal knowledge as to themselves, and upon information and belief as to other matters, allege as follows: NATURE OF THE ACTION 1. This lawsuit seeks to recover overtime compensation for Plaintiffs and similarly situated co-workers, salaried Assistant Managers, however variously titled, including Front-of-House Managers and Kitchen Managers (also known as Back-of-House Managers), and other exempt House Manager positions, however variously titled, (hereinafter "HMs"), who work or have worked for Defendants OS Restaurant Services, LLC; and Bloomin' Brands, Inc., together d/b/a Outback Steakhouse at Outback Steakhouse Restaurants nationwide (collectively "Outback"). 4 PageID 2 2. Bloomin' Brands, Inc. is "one of the world's largest casual dining restaurant companies in the world with a portfolio of leading, differentiated restaurant concepts. . . [including] the founder-inspired. . . Outback Steakhouse. . ." (2015 10-k at Part I, Item 1). According to its Form 10-K, "Outback Steakhouse is a casual steakhouse restaurant focused on steaks, signature flavors and Australian decor." 3. For the fiscal year ending on December 27, 2015, Defendants operated 650 company-owned Outback Steakhouses in the United States, along with 105 domestic franchises; and employed 100,000 employees. Id. For the fiscal year 2015, Defendants earned over $4.3 billion dollars in revenue. Id. 4. Outback restaurants are organized between "Front-of-House," which focuses on customer service, and "Back-of-House," which focuses on food preparation. Employees may work between both "Front-of-House" and "Back-of-House," depending on the needs of the restaurant. 5. At Outback, HMs are required to perform, as their primary duties, the same non- exempt duties that hourly employees perform. 6. HMs spend the majority of their shifts performing such tasks as greeting and waiting on customers, expediting and serving food, cooking and preparing food, as well as clearing and setting tables and cleaning the restaurant. 7. HMs typically earn approximately between $34,500 and $50,000 per year. 8. Regardless of the number of hours worked, HMs do not receive overtime compensation. 9. Outback classifies all HMs as exempt from the overtime pay provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"). -2- 4 PageID 3 10. However, HMs' primary duties are food preparation and/or customer service and are similar to the duties performed by hourly non-exempt employees. 11. HMs should be classified as non-exempt from the overtime provisions of the FLSA. 12. Upon information and belief, Outback applied the same compensation and employment policies, practices, and procedures to all HMs nationwide. 13. Plaintiffs bring this action on behalf of themselves and similarly situated current and former HMs nationwide who elect to opt-in to this action pursuant to the FLSA and, specifically, the collective action provision of 29 U.S.C. § 216(b), to remedy Defendants' violations of the wage-and- hour provisions of the FLSA that have deprived Plaintiffs and other similarly situated employees of their lawfully earned wages. THE PARTIES Plaintiff David Sears 14. David Sears ("Sears") is an adult individual who is a resident of Grand Blanc, Michigan. 15. From in or around June 2013 to December 2014, Sears was employed by Defendants as an HM (Kitchen Manager) at Defendants' Outback location in Clarkston, Michigan. 16. As an HM, Sears frequently performed the functions of an hourly employee. 17. Sears frequently worked more than 50 hours per week. 18. Pursuant to Outback's policy and pattern or practice, Outback Steakhouse did not pay Sears premium overtime pay when he worked as an HM for its benefit in excess of 40 hours in a workweek. -3- 4 PageID 4 19. Sears is a covered employee within the meaning of the FLSA. 20. A written consent form for Sears is attached to this Collective Action Complaint. Plaintiff Elizabeth Thomas 21. Elizabeth Thomas ("Thomas") is an adult individual who is a resident of Santa Teresa, New Mexico. 22. From in or around October 2012 to June 2013, Thomas was employed by Defendants as an HM (Front-of-House Manager) at Defendants' Outback location in El Paso, Texas. 23. As an HM, Thomas frequently performed the functions of an hourly employee. 24. Thomas frequently worked more than 50 hours per week. 25. Pursuant to Outback's policy and pattern or practice, Outback Steakhouse did not pay Thomas premium overtime pay when she worked as an HM for its benefit in excess of 40 hours in a workweek. 26. Thomas is a covered employee within the meaning of the FLSA. 27. A written consent form for Thomas is attached to this Collective Action Complaint. Defendant OS Restaurant Services, LLC 28. OS Restaurant Services, LLC ("OS") has owned and/or operated Outback Steakhouse restaurants during the relevant period. 29. OS is a business corporation organized and existing under the laws of Florida. It is a wholly owned subsidiary of Defendant Bloomin' Brands, Inc. 30. OS's principal executive office is located at 2202 N. Westshore Boulevard, Fifth Floor, Tampa, Florida 33607. 31. At all times relevant, OS Restaurant Services, LLC has been the corporate entity listed on Plaintiffs' paychecks. -4- 4 PageID 5 32. OS is a covered employer within the meaning of the FLSA and, at all times relevant, employed Plaintiffs and similarly situated employees. 33. At all times relevant, OS maintained control, oversight, and direction over Plaintiffs and similarly situated employees, including timekeeping, payroll, and other employment practices that applied to them. 34. OS applies the same employment policies, practices, and procedures to all HMs at the Outback restaurants, including policies, practices, and procedures with respect to the payment of overtime compensation. 35. Upon information and belief, at all times relevant, OS's annual gross volume of sales made or business done was not less than $500,000.00. Defendant Bloomin' Brands, Inc. 36. Bloomin' Brands, Inc. ("Bloomin' Brands") is the parent corporation of OS and has owned and/or operated Outback restaurants during the relevant period. 37. Bloomin' Brands is a business corporation organized and existing under the laws of Delaware and authorized to do business in Florida. 38. Bloomin' Brands shares its principal executive office is located at 2202 N. Westshore Boulevard, Fifth Floor, Tampa, Florida 33607 with Defendant OS. 39. Bloomin' Brands is a covered employer within the meaning of the FLSA and, at all times relevant, employed Plaintiffs and similarly situated employees. 40. At all times relevant, Bloomin' Brands maintained control, oversight, and direction over Plaintiffs and similarly situated employees, including timekeeping, payroll, and other employment practices that applied to them. -5- 4 PageID 6 41. Bloomin' Brands applies the same employment policies, practices, and procedures to all HMs at the Outback restaurants, including policies, practices, and procedures with respect to the payment of overtime compensation. 42. Upon information and belief, at all times relevant, Bloomin' Brands' annual gross volume of sales made or business done was not less than $500,000.00. 43. Defendants do business under the trade name or mark of "Outback Steakhouse." 44. Each Defendant employed or acted in the interest of an employer towards Plaintiffs and other similarly situated current and former HMs and, directly or indirectly, jointly or severally, including, without limitation, directly or indirectly controlling and directing the terms of employment and compensation of Plaintiffs and other similarly situated current and former HMs. Upon information and belief, the Defendants operate in concert and together in a common enterprise and through related activities, as here relevant, so that the actions of one may be imputed to the other and/or so that they operate as joint employers within the meaning of the FLSA. 45. Each Defendant had the power to control the terms and conditions of employment of Plaintiffs and other similarly situated current and former HMs including, without limitation, those terms and conditions relating to the claims alleged herein. 46. Defendants jointly employed Plaintiffs and other similarly situated current and former HMs. JURISDICTION AND VENUE 47. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1337. 48. This Court also has jurisdiction over Plaintiffs' claims under the FLSA pursuant to 29 U.S.C. § 216(b). -6- 4 PageID 7 49. Venue is proper in the Middle District of Florida pursuant to 28 U.S.C. § 1391(b)(2) because Defendants reside in the District and a substantial part of the events or omissions giving rise to the claims occurred in this District. COLLECTIVE ACTION ALLEGATIONS 50. Plaintiffs bring the First Cause of Action, an FLSA claim, on behalf of themselves and all similarly situated persons who have worked as HMs at Outback restaurants nationwide, who elect to opt-in to this action (the "FLSA Collective"). 51. Defendants are liable under the FLSA for, inter alia, failing to properly compensate Plaintiffs and other similarly situated HMs. 52. Consistent with Defendants' policy and pattern or practice, Plaintiffs and the members of the FLSA Collective were not paid premium overtime compensation when they worked beyond 40 hours in a workweek. 53. All of the work that Plaintiffs and the members of the FLSA Collective have performed has been assigned by Defendants, and/or Defendants have been aware of all of the work that Plaintiffs and the FLSA Collective have performed. 54. As part of their regular business practice, Defendants have intentionally, willfully, and repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA with respect to Plaintiffs and the members of FLSA Collective. This policy and pattern or practice includes, but is not limited to: (a) willfully failing to pay its employees, including Plaintiffs and the members of the FLSA Collective, premium overtime wages for hours that they worked in excess of 40 hours per workweek; (b) willfully misclassifying Plaintiffs and the members of the FLSA collective as exempt from the protections of the FLSA; and (c) willfully failing to record all of the time that its employees, including Plaintiffs -7- 4 PageID 8 and the members of the FLSA Collective, have worked for the benefit of Defendants. 55. Defendants are aware or should have been aware that federal law required them to pay Plaintiffs and the members of the FLSA Collective overtime premiums for hours worked in excess of 40 per workweek. 56. Plaintiffs and the members of the FLSA Collective perform or performed the same primary duties. 57. Defendants' unlawful conduct has been widespread, repeated, and consistent. 58. There are many similarly situated current and former HMs who have been underpaid in violation of the FLSA who would benefit from the issuance of a court-supervised notice of this lawsuit and the opportunity to join it. 59. This notice should be sent to the FLSA Collective pursuant to 29 U.S.C. § 216(b). 60. Those similarly situated employees are known to Defendants, are readily identifiable and can be located through Defendants' records. COMMON FACTUAL ALLEGATIONS 61. Throughout their employment with Defendants, Plaintiffs and the members of the FLSA Collective consistently worked more than 40 hours per week. 62. Defendants were aware that Plaintiffs and the FLSA Collective worked more than 40 hours per workweek, yet Defendants failed to pay overtime compensation for hours worked over 40 in a workweek. 63. Defendants did not keep accurate records of hours worked by Plaintiffs or the FLSA Collective. 64. Defendants did not require Plaintiffs or the FLSA Collective to clock in or out, or otherwise record their time. -8- 4 PageID 9 65. Plaintiffs and the FLSA Collective's primary duties were routine, non-exempt tasks including, but not limited to: a. greeting and waiting on customers; b. expediting food and serving customers; c. preparing and cooking food; d. clearing and setting tables; and e. cleaning the restaurant. 66. Plaintiffs and the FLSA Collective spent the majority of their time serving customers in the dining area; preparing food in the kitchen area; and performing the same or similar tasks to hourly non-exempt employees. 67. Plaintiffs and FLSA Collective's duties did not differ substantially from the duties of hourly non-exempt employees. 68. Plaintiffs and FLSA Collective's primary job duties as HMs did not include: a. Hiring; b. Firing; c. Making recommendations for hiring, firing, or other employment decisions; d. Scheduling; or e. Disciplining other employees. 69. Plaintiffs and the FLSA Collective's primary duty was not directly related to Defendants' management or general business operations. 70. Plaintiffs and the FLSA Collective's primary duty did not include the exercise of discretion or independent judgment regarding matters of significance. 71. In that regard, Plaintiffs: -9- 4 PageID 10 a. were not involved in planning Defendants' long or short term business objectives; b. could not formulate, affect, implement or interpret Defendants' management policies or operating practices; c. did not carry out major assignments that affected Defendants' business operations; d. did not have authority to commit Defendants' in matters that have significant financial impact; and e. could not waive or deviate from Defendants' established policies or procedures without prior approval. 72. Plaintiffs and the FLSA Collective's primary duties were manual in nature. 73. The performance of manual labor duties occupied the majority of Plaintiffs' and the FLSA Collective's working hours. FIRST CAUSE OF ACTION Fair Labor Standards Act – Overtime Wages (Brought on behalf of Plaintiffs and the Members of the FLSA Collective) 74. Plaintiffs reallege and incorporate by reference all allegations in all preceding paragraphs. 75. Defendants have engaged in a widespread pattern and practice of violating the FLSA, as described in this Collective Action Complaint. 76. At all relevant times, Plaintiffs and the FLSA Collective were engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). 77. At all relevant times, Outback employed Plaintiffs and the FLSA Collective. 78. The overtime wage provisions set forth in §§ 201 et seq. of the FLSA apply to Defendants. - 10 - 4 PageID 11 79. At all relevant times, Outback has been an employer engaged in commerce and/or the production of goods for commerce within the meaning of 29 U.S.C. §§ 206(a) and 207(a). 80. At all times relevant, Plaintiffs and the FLSA Collective were employees within the meaning of 29 U.S.C. §§ 203(e) and 207(a). 81. Defendants have failed to pay Plaintiffs and the FLSA Collective the overtime wages to which they are entitled under the FLSA. 82. Outback's violations of the FLSA, as described in this Collective Action Complaint, have been willful and intentional. 83. Outback has not made a good faith effort to comply with the FLSA with respect to its compensation of Plaintiffs and the FLSA Collective. 84. Because Defendants' violations of the FLSA have been willful, a three-year statute of limitations applies, pursuant to 29 U.S.C. § 255. 85. As a result of Defendants' willful violations of the FLSA, Plaintiffs and the FLSA Collective have suffered damages by being denied overtime wages in accordance with 29 U.S.C. §§ 201 et seq. 86. As a result of the unlawful acts of Defendants, Plaintiffs and the FLSA Collective have been deprived of overtime compensation and other wages in amounts to be determined at trial, and are entitled to recover of such amounts, liquidated damages, prejudgment interest, attorneys' fees, costs and other compensation pursuant to 29 U.S.C. § 216(b). PRAYER FOR RELIEF WHEREFORE, Plaintiffs, individually and on behalf of all other similarly situated persons, respectfully request that this Court grant the following relief: A. That, at the earliest possible time, Plaintiffs be allowed to give notice of this - 11 - 4 PageID 12 collective action, or that the Court issue such notice, to all HMs and similarly situated employees who are presently, or have at any time from January 16, 2013, up through and including the date of this Court's issuance of court-supervised notice, worked at Outback.1 Such notice shall inform them that this civil action has been filed, of the nature of the action, and of their right to join this lawsuit if they believe they were denied proper wages; B. Unpaid overtime pay and an additional and equal amount as liquidated damages pursuant to the FLSA and the supporting United States Department of Labor regulations; C. Prejudgment and post-judgment interest; D. Reasonable attorneys' fees and costs of the action; and E. Such other relief as this Court shall deem just and proper. Dated: Boca Raton, Florida May 4, 2016 Respectfully submitted, SHAVITZ LAW GROUP, P.A. Gregg I. Shavitz Florida Bar No. 11398 Alan Quiles Florida Bar No. 62431 1515 S. Federal Hwy Boca Raton, Florida 33432 Telephone: (561) 447-8888 Attorneys for Plaintiffs and the Putative Collective 1 On January 16, 2016 the parties entered into a tolling agreement, effective that same date, to toll the statute of limitations for any claim of the FLSA or state wage and hour law, for Plaintiffs and those HMs who worked for Defendants in the United States. - 12 - DocuSign Envelope ID: 89480A76-C0C2-4850-9BCA-C388CD6C4458 4 PageID 13 CONSENT TO JOIN FORM 1. I consent to be a party plaintiff in a lawsuit against Defendant(s), _________________________, and/or related entities and individuals in order to seek redress for violations of the Fair Labor Standards Act, pursuant to 29 U.S.C. § 216(b). 2. I hereby designate the Shavitz Law Group, P.A. to represent me in bringing such claim, and to make decisions on my behalf concerning the litigation and settlement. I agree to be bound by any adjudication of this action by the Court, whether it is favorable or unfavorable. 3. I also consent to join any other related action against Defendant(s) or other potentially responsible parties to assert my claim and for this Consent Form to be filed in any such action. Signature Print Name DocuSign Envelope ID: F2BE4BDB-83B5-4852-933B-761A5626929A 4 PageID 14 CONSENT TO JOIN FORM 1. I consent to be a party plaintiff in a lawsuit against Defendant(s), _________________________, and/or related entities and individuals in order to seek redress for violations of the Fair Labor Standards Act, pursuant to 29 U.S.C. § 216(b). 2. I hereby designate the Shavitz Law Group, P.A. to represent me in bringing such claim, and to make decisions on my behalf concerning the litigation and settlement. I agree to be bound by any adjudication of this action by the Court, whether it is favorable or unfavorable. 3. I also consent to join any other related action against Defendant(s) or other potentially responsible parties to assert my claim and for this Consent Form to be filed in any such action. Signature Print Name