Where a plaintiff has alleged that the defendants failed to pay minimum wage and overtime to certain employees and retained their tips unlawfully, the plaintiff’s motion for conditional certification under the Fair Labor Standards Act should be denied because he fails to make the requisite factual showing that the proposed collective comprises employees who are similarly situated.
“Plaintiff Dengtao Cao, also known as Phillip Cao, brought this putative collective and class action lawsuit against defendant Hungry Pot Dartmouth Inc. and its executives for allegedly failing to pay minimum wage and overtime to certain employees and retaining their tips unlawfully. Pending before the Court is Cao’s motion for conditional certification under the Fair Labor Standards Act (‘FLSA’), 29 U.S.C. §216(b). That motion will be denied, because Cao fails to make the requisite factual showing that the proposed collective comprises employees who are similarly situated. His affidavit, which is the only evidence that he has submitted, does not establish that similarly situated employees were subject to a uniform policy at Hungry Pot of not receiving minimum wage or overtime and having their tips unlawfully retained. Nor has any other Hungry Pot employee expressed an interest in joining this lawsuit. …
“Cao moves for conditional certification and court-authorized notice under the FLSA, 29 U.S.C. §216(b), on behalf of a proposed collective comprising all ‘current and former non-exempt workers...
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