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Rogers v. The Webstaurant Store, Inc.

United States District Court, W.D. Kentucky, Owensboro Division

June 20, 2018

BRITTANY ROGERS, on behalf of Herself and All Others Similarly-situated PLAINTIFF
v.
THE WEBSTAURANT STORE, INC. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge

         This matter is before the Court on Plaintiffs Motion for Temporary Restraining Order and Injunction [DN 9]. Plaintiff also filed a supplemental memorandum in support of her motion [DN 10]. Defendant filed a response and a supplemental response [DN 12, DN 14]. The Court held a hearing on June 20, 2018. Fully briefed and argued, this matter is ripe for decision.

         I. BACKGROUND

         A. Allegations in the Complaint

         On May 14, 2018, Plaintiff, Brittany Rogers, filed a civil action against Defendant, The WEBstaurant Store, Inc. (hereinafter "Webstauranf), alleging that Webstaurant failed to pay overtime compensation to Rogers and others similarly situated in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. (Complaint ¶l.) Rogers was employed by Webstaurant at the customer support facility in Madisonville, Kentucky, from April 13, 2015 to December 19, 2017, as a customer support specialist. Rogers alleges Webstaurant engaged in three practices that deprived her and similarly situated employees overtime pay under the FLSA: (1) failing to pay employees for time worked in excess of forty hours per week and for which Webstaurant knew the employee was working because the employee was logged in to Webstaurant's customer support or similar computer system, which records log-in and log-out times, (B) failing to pay employees for time worked (and intentionally not recorded by Webstaurant) by employees preliminary to and after logging in to Webstaurant's customer support system, including time opening the facility, preparing the workstation, and logging in, time logging out, closing the workstation, preparing the facility for closing, and time attending training sessions and other meetings, and (3) requiring employees under "performance improvement plans" to perform additional work relating to those plans outside of such employees' regularly-scheduled five eight-hour shifts per week, but not paying employees for such work. (Complaint ¶ 19.)

         Webstaurant filed an answer denying that it failed to pay the overtime compensation. On June 13, 2018, Plaintiff filed a Motion for Conditional Certification, Expedited Discovery, and Court-Authorized Notice [DN 8].

         B. Motion for Temporary Restraining Order

         On June 14, 2018, Plaintiff filed an Emergency Motion for Temporary Restraining Order prohibiting Defendant from communicating with putative class members about FLSA claims and attempting to purport to settle FLSA claims [DN 9] and filed a supplemental memorandum for TRO [DN 10]. On June 15, 2018, Defendant filed a response [DN 11]. The events leading up to this current motion are detailed below.

         On May 25, 2018, Dave Groff, President of Webstaurant, sent an email to the employees of Webstaurant indicating as follows:

Hi Everyone,
I wanted to make you aware that a former employee in KY, Brittany Rogers, has filed a lawsuit against the company. Brittany or her attorney may be contacting you for information or to invite you to join her in suing Webstaurant. You are under no obligation to take any action.
Brittany is claiming that she was not compensated fairly. We do not believe that claim is true. Part of our culture is doing the right thing. We take that seriously, and we have always made fair compensation one of our highest priorities. I also want to ensure you that we would never retaliate against any employee that makes claims against the company in good faith.
We are informing you of this now because we want to be transparent about what's going on, and we don't want you to be surprised or confused by any potential communication that you receive from Brittany or her attorney. This is all of the information that we have for you at this time. We will share more information as it becomes available.
If you have any questions or concerns about this matter, please contact Mike Meek.
Thanks, Dave

         (May 25, 2018, Dave Groff Email.)

         On May 25, 2018, Plaintiffs counsel emailed representatives of the company complaining that with this above email the company communicated inaccurately about the Plaintiffs claims and demanded the company provide a copy of Plaintiffs complaint to its employees. In response to the email, counsel for the Defendant indicated: "First, the communication my client sent out this afternoon is none of your business and my client does not need nor will it seek your blessing prior to communicating any information throughout the company. Second, I would highly encourage you to familiarize yourself with SCR 3.130(4.5) because the communications you have sent to current and former employees were potentially in violation of the Supreme Court Rule and we certainly intend to explore this issue in greater depth. Third, your demand is rejected." (Strause Letter/Email to Foster, May 25, 2018.)

         On June 11, 2018, Groff once again sent an email to the employees of Webstaurant which provided:

Hello, As I mentioned a few weeks ago, we are committed to doing the right thing and ensuring competitive and fair compensation for all of our employees.
Prior to March 24th, you were paid for 40 hours of work per week. Deviations from your standard schedule were to be ...

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