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Applebee’s Employees Urge Appellate Court to Allow Class Action for Unpaid Wages

Nov. 15, 2013

Applebee’s Employees Urge Appellate Court to Allow Class Action for Unpaid Wages

Case Could Fundamentally Alter Precedent on Class Actions; Applebee’s Franchisee Allegedly Owes Wages to Thousands of Workers

NEW YORK – Applebee’s employees who were denied pay because of allegedly illegal workplace practices should be able to band together in a class action, a group of the employees told a federal appellate court today. In their brief, filed in the U.S. Court of Appeals for the Second Circuit, the employees, on behalf of Applebee’s workers throughout New York state, argued that a lower court erred in refusing to allow the case to proceed as a class action.

Public Citizen is lead appellate counsel in the case, Roach v. T.L. Cannon, which could have significant consequences for the future of class-action lawsuits.

The primary issue on appeal is whether the Applebee’s employees, thousands of whom were allegedly denied pay because of illegal workplace policies and practices, should be allowed to proceed as a class in their lawsuit against T.L. Cannon, which owns and operates 53 Applebee’s restaurants throughout  New York state. According to the plaintiffs, withholding of wages was pervasive and systematic over a period of years.

In the lawsuit, filed in May 2010, the plaintiffs allege, among other things, that the company violated New York’s “spread of hours” law, which requires employers to pay an extra hour’s pay whenever an employee’s work time spans more than 10 hours in a day, and that managers altered time records to reflect breaks that employees didn’t take. Defendants’ restaurant managers have acknowledged the existence of these practices, and employees who worked in different restaurants around the state have testified that they were denied pay because of these practices.

The plaintiffs sought certification of a class encompassing current and former Applebee’s employees throughout the state, a group estimated to include more than 5,000 individuals.

In a March 5, 2013, report, a magistrate judge recommended certification of the class action for the spread-of-hours claim, but on March 29, two days after the U.S. Supreme Court’s Comcast v. Behrend ruling, the U.S. District Court for the Northern District of New York denied certification, interpreting Comcast to mean that it could not certify any class for which damages would need to be calculated on an individual basis.

“The district court was incorrect to read Comcast to require that a class must have uniform damages in order to be certified,” said Scott Michelman, the Public Citizen attorney representing the plaintiffs on appeal. “Such a requirement misinterprets class-action law and would undermine most wage-and-hour class actions, allowing illegal exploitation of employees to go uncorrected. The court of appeals should correct this misinterpretation of class-action law and tell the district court to permit these workers to proceed as a class.”

Thomas & Solomon LLP of Rochester, N.Y., and O’Hara, O’Connell & Ciotoli of Fayetteville, N.Y., are co-counsel for the plaintiffs.

See the full brief and learn more about the case.