Judge grants Conditional Certification of Collective Action in the Southern District of New York

Hernandez v. El Bandido Restaurant Inc., d/b/a El Bandido Mexican Restaurant & Lounge, and Estate of Santiago M. Tello, individually, and Angelica Tello, individually, Civil Case No.: 22-cv-00927-KMK-JCM

As previously reported on this website, in Hernandez v. El Bandido Restaurant Inc., d/b/a El Bandido Mexican Restaurant & Lounge, and Estate of Santiago M. Tello, individually, and Angelica Tello, individually, Civil Case No.: 22-cv-00927-KMK-JMC, on February 22, 2022, Lead Plaintiff, Mr. Hernandez, on behalf of himself, individually, and on behalf of all others similarly-situated, filed a collective action lawsuit in the United States District Court Southern District of New York against EL BANDIDO RESTAURANT INC., d/b/a EL BESTATE OF SANTIAGO M. TELLO, individually (“Santiago”), and ANGELICA TELLO, individually, (“Angelica”, collectively, where appropriate, as “Defendants”), alleging violations of the Fair Labor Standards Act (“FLSA”), the New York Labor Law (“NYLL”), and the New York Comp. Codes, Rules, and Regulations (“NYCCRR”), including the failure of Defendants to compensate Plaintiff for overtime wages. The claims of the case are referenced in our May 2022 blog post and are reviewed as follows:

Plaintiff worked for Defendants – – a New York corporation that operates a Rockland County-based restaurant and its owners, one of whom is now deceased, each of whom, at the different times detailed below, were and/or are responsible for making significant personnel-related decisions – – from 1996 to December 13, 2020, working as a waiter from 2001 until the end of his employment;
Throughout his employment, Defendants willfully failed to pay Plaintiff the overtime wages lawfully due to him under the FLSA and the NYLL;
Specifically, Defendants required Plaintiff, and Plaintiff did work, in excess of forty hours per week, but Defendants failed to compensate Plaintiff at the statutorily-required overtime rate for those hours;
Instead, Defendants paid Plaintiff a flat weekly salary that Plaintiff and Defendants expressly agreed, at the time of Plaintiff’s hire, was meant to compensate Plaintiff for only his first forty hours of work each week, and thus Defendants failed to compensate Plaintiff at any rate of pay, let alone at the statutorily-required rate of one and one-half times his regular hourly rate for any hours that Plaintiff worked in excess of forty in a week, in violation of the FLSA and the NYLL;

Defendants paid and treated all their non-managerial front of the house employees in the same manner.

Defendant violated Plaintiff’s rights guaranteed to him by the overtime provisions of the FLSA, the NYLL and the NYCCRR. Additionally, Defendant violated the NYLL by failing to pay Plaintiff any additional hour’s pay, at the minimum wage rate, for all days during which his spread of hours worked exceeded ten; provide Plaintiff with any wage notice upon hire, let alone an accurate one; and provide Plaintiff with any wage statement on each payday, let alone an accurate statement.

Certification of Collective Action

In this case, pursuant to the request of the Plaintiff, the Judge reviewed claims that the Plaintiff brought forward alleging that there are additional workers in the same “class” (performing the same or similar duties) whose rights have been violated. On May 6, 2022, Plaintiffs’ motion for approval of a collection action was granted, allowing the case to proceed as a collective action enabling any current and former employees who were not paid properly to join the lawsuit and seek redress for Defendants’ failure to compensate them in accordance with the law.

If you or a person you know worked for the Defendants named in the lawsuit during the time period of February 2, 2019 – present or has information that may be relevant to this case, contact Borrelli & Associates, P.L.L.C. as soon as possible through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com or any of our phone numbers: (516) 248-5550, (516) ABOGADO, and (212) 679-5000.