Hicks v. T.L. Cannon Corp. (35 F. Supp. 3d 329, 2014)

United States District Court for the Western District of New York 2014-08-05

Citations

Full opinion text

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

INTRODUCTION

Plaintiffs bring this action alleging violations of the New York Minimum Wage Act, New York Labor Law (“NYLL”) §§ 650 et seq., and violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., for Defendants’ alleged failure to pay minimum wages to Plaintiffs. (Dkt. 82). The case centers on the compensation that must be paid to tipped employees in the food service industry, and the conditions under which an employer may take a credit for the tips paid to those employees. Currently before the Court are Plaintiffs’ motion for partial summary judgment (Dkt. 144), Defendants’ cross-motion for partial summary judgment (Dkt. 176), and Plaintiffs’ motion for class certification pursuant to Fed.R.Civ.P. 23 (Dkt. 143). For the following reasons, Plaintiffs’ motion for partial summary judgment is granted in’ part and denied in part, Defendants’ cross-motion for partial summary judgment is denied, and Plaintiffs’ motion for class certification is granted.

FACTUAL BACKGROUND

Defendants are responsible for the operation of’ Applebee’s restaurants in Connecticut and New York. Defendant TLC West, LLC employs the store managers' and servers for New York restaurants in Buffalo, Rochester, Syracuse, and the Finger Lakes. (Dkt. 146-2 at 16:12-13). Defendant TLC Central, LLC employs the store managers and servers for New York restaurants in the Hudson Valley, the Mohawk Valley, Albany, and the Southern Tier. (Id. at 16:14-15). Defendant TLC Utica, LLC employs the store managers and servers for the Utica, New York, restaurant. (Id. at 15:22-25). Defendant TLC North, LLC has no employees. (Id. at 16:16-22). These business entities, along with Defendants T.L. Cannon Corp. and T.L. Cannon Management Corp., will be collectively referred to as “T.L. Cannon.”

Defendant Matthew J. Fairbairn is the owner of T.L. Cannon, Defendant John A. Perry is President of T.L. Cannon, and Defendant David A. Stein is a partner in T.L. Cannon. (Id. at 23:10-14, 28:22-25).

Named Plaintiff Ashley Hicks was employed by Defendant TLC West, LLC at an Applebee’s restaurant in Henrietta, New York, from December 20, 2005, through August 24, 2007, and in Ironde-quoit, New York, from June 23, 2008, through December 19, 2010. (Dkt. 176-6 at ¶ 2). Named Plaintiff Kristin Raymond was employed by "Defendant TLC West, LLC at the Applebee’s restaurant in Gates, New York, from February 25, 2002, to December 11, 2011. (Id. at ¶ 3). Barbara Kubiak, Raegan Johnson, Barbara Soluri, Lilian Mullen, Heidi Prentice, Amber Dewey, and Shanice Ford (collectively the “Moving Opt-In Plaintiffs”) have consented to become party plaintiffs to this litigation. (Dkt. 18, 19, 20, 23). The record does not contain information regarding the Moving Opt-In Plaintiffs’ dates or locations of employment:

During the course of their employment with Defendants, Ms. Hicks and Ms. Ray'mond were, when working in tipped occupations, paid the lower cash wage applicable to food service workers pursuant to NYLL § 652(4). (Dkt. 176-7, 176-8). The NYLL regulations in effect prior to January 1, 2011, permitted an employer to take a tip credit and pay a lower hourly rate than the minimum wage if certain requirements were met, including furnishing the employee a pay statement with each payment of wages that showed, among other things, the “allowances, if any, claimed as part of the minimum wage....” 12 N.Y.C.R.R. § 137-2.2 (repealed).

Ms. Hicks and Ms. Raymond received pay statements that did not expressly set forth a category listing the amount of any allowance claimed for tips as part of the minimum wage, but did list:

• Employer name and address;

• Employee name and address;

• Pay period;

• Regular rate for each position worked;

• Overtime rate for each position worked;

• Hours worked at each rate of pay;

• Tips earned;

• Spread of hours pay;

• Tip makeup pay;

• Deductions;

• Withholdings;

• Gross earnings; and

• Net earnings.

(Dkt. 176-6 at ¶ 7).

On December 15, 2010, the New York State Department of Labor (the “Department of Labor”) issued a consolidated Wage Order for the Hospitality Industry (“the Wage Order”) (12 N.Y.C.R.R. Part 146) that became effective on January 1, 2011. The Wage Order requires employers to provide certain written notices to employees upon hire and prior to any change in the employee’s hourly rate of pay. 12 N.Y.C.R.R. § 146-2.2. Among other things, the notice must set forth “the amount of tip credit, if any, to be taken from the basic minimum hourly rate” and it must “also state that extra pay is required if tips are insufficient to bring the employee up to the basic minimum hourly rate.” Id. On January 1, 2011, Ms. Raymond’s hourly rate of pay for tipped occupations was raised to $5.00 per hour from $4.65 per hour. (Dkt. 176-8 at 25; Dkt. 176-10 at 13). On that same day, Ms. Raymond received a “Pay Rate Notice” that listed her position, rate of pay, rate of overtime pay, and regular pay day, but did not state that her employer intended to take a tip credit, the amount of the tip credit, or that she was entitled to makeup pay if she did not earn enough in tips. (Dkt. 176-10 at 13).

For purposes of Plaintiffs’ motions for partial summary judgment and class certification, the parties have entered into certain stipulations. (Dkt. 176-5). In particular, the parties have stipulated that from September 24, 2006, to the present: Plaintiffs understood that they were being paid the tipped minimum wage for hours that they worked in tipped occupations and had actual knowledge that Defendants were taking tip credits from the minimum wage; Defendants had a policy to provide their employees with verbal notice at orientation that' Defendants would take a tip credit and that Defendants had a policy to pay its tipped employees extra pay if their tips were insufficient to bring the employee up to the basic minimum hourly rate for the week; Plaintiffs were not confused by Defendants’ wage notices and pay stubs nor did they fail to understand the amounts they were being paid; in the instances where Plaintiffs did not earn enough in tips to bring their pay to the minimum wage, Defendants made up the difference in accordance with their tip makeup pay policy; and, when combining the tipped minimum wage that they received, the tips that they earned, and any tip makeup pay provided, Plaintiffs never earned less than minimum wage. (Dkt. 176-5 at 3-4).

PROCEDURAL HISTORY

Plaintiffs filed their complaint on September 14, 2012. (Dkt. 1). Plaintiffs bring their FLSA claim as a collective action under Section 16(b) of the FLSA. (Id.). With leave of Court, Plaintiffs filed an amended complaint on April 10, 2013, and an answer to the amended complaint was filed on May 24, 2013. (Dkt. 82, 90).

Defendants filed a motion to change venue on October 9, 2012, which Plaintiffs opposed. (Dkt. 24, 50, 51). On June 4, 2013, United States District Judge Michael A. Telesca granted Defendants’ motion to change venue (Dkt. 93), and the case was transferred to the Northern District of New York. (Dkt. 94). On June 18, 2013, Plaintiffs filed a motion seeking to have the action transferred back to the Western District of New York (Dkt. 95), and on August 23, 2013, Plaintiffs’ motion was granted and the case was transferred back to this District. (Dkt. 117).

Plaintiffs filed a motion for approval of the collective action on October 18, 2013, and Defendants filed a cross-motion for approval of their proposed collective action notice on November 15, 2013. (Dkt. 128, 134). On December 10, 2013, the Court entered an order instructing the parties to confer and submit a jointly-approved proposed notice of collective action. (Dkt. 139). The Court granted the final proposed notice of collective action on December 20, 2013. (Dkt. 141).

On January 27, 2014, Plaintiffs filed the instant motion for partial summary judgment as to the Named Plaintiffs Ashley Hicks and Kristin Raymond, and the Moving Opt-In Plaintiffs. (Dkt. 144). In support of their motion for partial summary judgment, Plaintiffs contend that Defendants violated the minimum wage provisions of the NYLL by improperly taking a tip credit against their wages without following the regulatory requirements associated with the allowable use of such a tip credit. (Id). Plaintiffs make two arguments in support of their position. First, they argue that Defendants did not comply with the regulatory requirements related to information that must be provided on a pay stub where the employer takes a tip credit. Second, they argue that after January 1, 2011, Defendants failed to comply with the provisions of the Wage Order requiring them to provide written notice to employees before taking a tip credit. Defendants cross-moved for partial summary judgment on March 14, 2014, arguing that they complied in all respects with the NYLL and its associated regulations. (Dkt. 176). Plaintiffs filed a response to Defendants’ motion on April 3, 2014, and Defendants filed a reply on April 17, 2014. (Dkt. 191, 197). Plaintiffs also filed a motion to certify the class on January 27, 2014. (Dkt. 143). Defendants filed a response to the class certification motion on March 13, 2014, and Plaintiffs filed a reply on April 3, 2014. (Dkt.177, 192). Oral argument on the instant motions was held on May 13, 2014. (Dkt. 201).

As set forth below, Plaintiffs’ motion for partial summary judgment is granted in part and denied in part. Specifically, Plaintiffs’ motion is granted as to Ms. Raymond’s claim that Defendant TLC West, LLC failed to comply with the Wage Order effective January 1, 2011. Plaintiffs’ motion for partial summary judgment is denied in all other respects. Furthermore, Defendants’ cross-motion for partial summary judgment is denied, and Plaintiffs’ motion to certify the class pursuant to •Fed.R.Civ.P. 23 is granted.

DISCUSSION

I. The Motions for Partial Summary Judgment

A. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial: ’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec., 475 U.S. at 586-87, 106 S.Ct. 1348) (emphasis in original). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion, for summary judgment....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

B. Status of the FLSA Opt-In Plaintiffs

As a threshold matter, the Court must consider whether the Moving Opt-In Plaintiffs have standing to seek summary judgment as to the New York state law claims. Defendants maintain that the Moving Opt-In Plaintiffs are not parties to the state law claims set forth in the amended complaint. (Dkt. 178 at 16). In support of this argument, Defendants contend that there is no mechanism by which FLSA opt-in plaintiffs may join state law claims and that the consents signed by the Moving Opt-in Plaintiffs only reference the FLSA claims. (Dkt. 197 at 7). The consents state, in relevant part, as follows:

I consent to become a “party plaintiff,” named, or a representative plaintiff in any Fair Labor Standards Act action of unpaid wages, including overtime wages and/or tip credit violations, and related relief against my employer(s), including T.L. Cannon Corp. d/b/a Applebee’s_

I wish to preserve and pursue any claim that I may have to the greatest extent possible. Therefore, I expressly consent to the use of this consent form for purposes of making me a party plaintiff in any lawsuit and/or lawsuits that plaintiffs’ attorneys have brought and/or may bring on behalf of myself and other employees alleged to be similarly situated.

(Dkt. 18,19, 20, 28).

Plaintiffs counter that the express terms of the FLSA provide that when a party opts in to a litigation, she becomes a “party plaintiff” to the “action” (29 U.S.C. § 216(b)) and that this necessarily means that she is a plaintiff as to all claims. As such, Plaintiffs argue, the Moving Opt-in Plaintiffs are free to seek relief on the NYLL claims as well as the FLSA claims.

Defendants cite two cases standing for the proposition that Ms. Hicks and Ms. Raymond cannot file a summary judgment motion 6n behalf of the class before the class is certified. (Dkt. 178 at 16). These cases are not on point as Plaintiffs are not seeking summary judgment on behalf of the class.

Plaintiffs cite three cases that they claim demonstrate that the Moving Opt-in Plaintiffs should be considered plaintiffs with respect to the NYLL claims. In Prickett v. DeKalb County, 349 F.Bd 1294 (11th Cir.2003), relied on by Plaintiffs, the court considered whether opt-in plaintiffs had to submit additional consent forms when additional FLSA claims were added to the complaint. The court held that they did not, explaining:

We are bound by the intent of Congress, as expressed in the language of the statute. The statute says, “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party....” 29 U.S.C. § 216(b) (emphasis added). That plain language indicates that plaintiffs do not opt-in or consent to join an action as to specific claims, but as to the action as a whole. The statute does not indicate that opt-in plaintiffs have a lesser status than named plaintiffs insofar as additional claims are concerned. To the contrary, by referring to them as “party plaintiffs]” Congress indicated that opt-in plaintiffs should have the same status in relation to the claims of the lawsuit as do the named plaintiffs.

349 F.3d at 1297. The Prickett court also relied on the language of the consent forms themselves, holding that “the language of the consent forms that the opt-in plaintiffs signed in this case indicates that they consented to have the named plaintiffs adjudicate all of their claims for overtime compensation under FLSA, not merely the claims then specified in the complaint.” Id.

In a later case, the Eleventh Circuit Court of Appeals explained that “the lesson from Prickett is that we must interpret consent forms according to the plain meaning of their language.” Albritton v. Cagle’s, Inc., 508 F.3d 1012, 1018 (11th Cir. 2007). In Albritton, plaintiffs argued that they were entitled to commence a second FLSA action on behalf of plaintiffs who had opted in to an earlier action. The court rejected this argument because the consent forms at issue “used narrow language in describing the litigation that they authorized.” Id.

Plaintiffs also cite Fengler v. Crouse Health System, Inc., 634 F.Supp.2d 257 (N.D.N.Y.2009). In Fengler, there were two FLSA claims — first, that employees were required to work through meal breaks, and second, that employees were required to work overtime without compensation. Id. at 259. On plaintiffs’ motion for certification as a collective action, the magistrate judge limited opt-in plaintiffs’ claims to “those for time worked during unpaid meal breaks.” Id. at 262. On review, the district judge held that this was clear error because “[the] statutory language [of the FLSA] indicates that once a potential plaintiff opts in, that person is a party to the action, not just to a claim:” Id. (emphasis in original). Fengler, like Prickett, involved only FLSA claims.

Finally, Plaintiffs cite Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81 (S.D.N.Y.2001). There, plaintiffs brought both FLSA and NYLL claims; there were approximately 350 opt-in plaintiffs. Id. at 83. Plaintiffs filed a motion to certify their state law claims as a class action. In deciding this motion, the court considered whether it should exercise supplemental jurisdiction over the state law claims, and concluded that it should. With respect to the opt-in plaintiffs, the court held:

The same considerations of sound jurisdictional efficiency and economy should apply to the delivery workers who filed consents to be party-plaintiffs to the FLSA claims. Section 216(b) gives them the status of parties and, as parties, they should have the same rights as the named Plaintiffs to have all their related claims adjudicated in the same forum. Plaintiffs properly chose a federal forum to vindicate their federal rights to be paid a minimum wage and overtime premium pay. Their suit will not be undermined or compromised by including their related claims under New York’s Minimum Wage Act.

Id. at 90. Ansoumana is nearly on point — it involved both FLSA and state law claims, and the court held that it had supplemental jurisdiction over the opt-in plaintiffs’ state law claims in the same way it had supplemental jurisdiction over the named plaintiffs’ state law claims. The Ansoumana court did not directly address, whether the consent forms in that case covered the state law claims.

The Court has found only one case arguably supporting Defendants’ position. In Bradford v. CVS Pharmacy, Inc., No. 1:12-CV-1159-TWT, 2013 WL 5587350 (N.D.Ga. Oct. 10, 2013), the court expressly considered “whether a collective action can ever encompass non-FLSA claims” and concluded that the collective action could not include a declaratory judgment claim and that therefore “the opt-in plaintiffs that allegedly signed separation agreements cannot confer standing for the declaratory judgment claim because they opted in to a collective action that only encompassed the unpaid overtime FLSA claim.” Id. at *3. The court distinguished Prickett on the grounds that it involved only FLSA claims. Id. The Bradford case has not been cited by any other court on this point, nor did it cite any case for the proposition that a non-FLSA claim may not proceed in tandem with an FLSA claim. Moreover, in direct opposition to Bradford, the Sixth Circuit Court of Appeals held that a court may certify supplemental state law claims to proceed as part of a collective action pursuant to the FLSA because “supplemental claims by definition are treated as part of the same controversy animated by a particular employee’s FLSA claim.” O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 580 (6th Cir. 2009). The supplemental claims in O’Brien involved Ohio’s Prompt Pay Act. Id. at 577.

Based on the foregoing, Defendants’ argument that there is no mechanism for FLSA opt-in plaintiffs to join in state law claims is misplaced. Indeed, the United States District Court for the Southern District of New York in Ansoumana expressly permitted the opt-in plaintiffs to join the state law claims because “they should have the same rights as the named Plaintiffs to have all their related claims adjudicated in the same forum.” 201 F.R.D. at 90 Therefore, the issue is not whether the Moving Opt-in Plaintiffs may pursue both FLSA and NYLL claims in the same action, but rather whether in this case they have consented to pursuing state law claims. The consents signed by the Moving Opt-in Plaintiffs expressly state that they consent to be a plaintiff in “any Fair Labor Standards Act action of unpaid wages.... ” (Dkt. 18, 19, 20, and 28). The consents do not expressly reference an agreement to pursue claims under the NYLL. However, the consents state that the Moving Opt-in Plaintiffs “wish to preserve and pursue any claim that I may have to the greatest extent possible” and that they “expressly consent to the use of this consent form for purposes of making me a party plaintiff in any lawsuit and/or lawsuits that plaintiffs’ attorneys have brought and/or may bring on behalf of myself and other employees alleged to be similarly situated.” (Id.). This is broad language that would seem to encompass the state law claims brought in this lawsuit. As such, the Court finds that the Moving Opt-in Plaintiffs may seek redress in this lawsuit as to the NYLL claims.

Nonetheless, at this stage of the proceedings, the Court cannot grant relief to the Moving Opt-in Plaintiffs because there is a fundamental flaw with their partial summary judgment motion. In their moving papers, Plaintiffs do not provide any specific records or documents related to the Moving Opt-in Plaintiffs. Instead, they provide records for individuals identified as Employees 1 through 9. (See Dkt. 146-1 at ¶¶5-21). These employees are never identified by name and it is not even clear that they are the Moving Opt-in Plaintiffs. The Court simply cannot determine whether Defendants violated the NYLL as to the Moving Opt-in Plaintiffs when the record does not contain their pay stubs, does not contain any information about when and where they were employed, and does not contain any information about the positions in which they were employed.

By contrast, the record contains specific records related to Ms. Hicks and Ms. Raymond. (See, e.g., Dkt. 176-7, 176-8, 176-9, 176-10). Therefore, the remainder of Part I of this Decision and Order considers only Ms. Hicks’ and Ms. Raymond’s claims.

C. Tip Allowance/Tip Credit for Food Service Workers

Defendants make a second threshold argument — they argue that Plaintiffs’ claims are barred as a matter of law because food service workers do not receive a tip allowance or credit. Instead, Defendants argue, NYLL § 652(4) establishes a completely separate lower minimum wage for food service workers.

According to Defendants’ logic, since they paid Plaintiffs a wage at least equal to this alleged separate lower minimum wage, Plaintiffs’ claims must fail. In support of this argument, Defendants cite the language of the statute and one case, Cao v. Wu Liang Lexington Restaurant, Inc., No. 08 CIV. 3725(DC), 2010 WL 4159391 (S.D.N.Y. Sept. 30, 2010), which states in relevant part, “the Labor Law allows employers to pay tipped workers in the food service industry a lower minimum wage.” Id. at *2.

Defendants’ position is without merit. In fact, it is flatly contradicted by the statute, the regulations, and the relevant case law. With respect to the statute itself, NYLL § 652(4) states as follows:

Notwithstanding subdivisions one and two of this section, the wage for an employee who is a food service worker receiving tips shall be a cash wage of at least three dollars and thirty cents per hour on or after March thirty-first, two thousand; three dollars and eighty-five cents on or after January first, two thousand five; at least four dollars and thirty-five cents on or after January first, two thousand six; and at least four dollars and sixty cents on or after January first, two thousand seven, provided that the tips of such an employee, when added to such cash wage, are equal to or exceed the minimum wage in effect pursuant to subdivision one of this section and provided further that no other cash wage is established pursuant to section six hundred fifty-three of this article.

NYLL § 652(4) (emphasis added). That language makes it clear that the minimum wage that food service workers ultimately receive must be the same minimum wage that all workers receive. The only distinction with food service workers is that some of that minimum wage will be provided by the employer as a cash wage and some of it will be paid through tips provided by customers. If food service workers were truly subject to an entirely separate minimum wage, it would not make sense to require employers to make up pay in instances of insufficient tips.

The relevant regulations also contradict Defendants’ argument. Prior to 2011, the regulations specifically referred to a “[t]ip allowance for food service worker[s]” and permitted a lower cash wage to be paid by the employer only when tips caused the employee to receive at least the same minimum wage paid to all workers. 12 N.Y.C.R.R. § 137-1.5 (repealed). Courts considering the issue plainly treated tipped employees as subject to the same minimum wage applicable to all workers, albeit with the benefit of a tip credit if the regulatory requirements were met. For example, in Padilla v. Manlapaz, 643 F.Supp.2d 302 (E.D.N.Y.2009), a waitress brought various claims against her former employer pursuant to the FLSA and the NYLL. With respect to the NYLL claims, the court stated:

New York state law allows employers to credit a portion of an employee’s tips and the costs of meals as allowances against the minimum wage requirement when certain preconditions are met. N.Y. Lab. Law § 652(4); N.Y. Comp. Codes R. & Regs. tit. 12, § 137-1.5, 1.9. First, the employer is required to “furnish to each employee a statement with every payment of wages listing ... allowances ... claimed as part of the minimum wage.... ” N.Y. Comp.Codes R. & Regs. tit. 12, § 137-2.2. Second, the employer must “maintain and preserve for not less than six years weekly payroll records which shall show for each employee ... allowances ... claimed as part of the minimum wage_” N.Y. Comp.Codes R. & Regs. tit. 12, § 137-2.1. Defendants concede that they failed [to] comply with both requirements, and, therefore, they are not entitled to claim either of the allowances for at least these reasons.

Id. at 309-310.

Similarly, in Copantitla v. Fiskardo Estiatorio, Inc., 788 F.Supp.2d 253 (S.D.N.Y. 2011), the court held that a restaurant employer could not take a “tip credit” with regard to its waiters and deliverymen because it had failed to comply with the regulations. Id. at 290; see also Lanzetta v. Florio’s Enters., Inc., 763 F.Supp.2d 615, 623 (S.D.N.Y.2011) (because “[b]oth state and federal law impose certain notice requirements on employers that are ‘strict’ prerequisites to taking” a tip credit, restaurant employer that had failed to comply with notice requirements was not entitled to take tip credit as to waitress); Mendez v. Pizza on Stone, No. 11 Civ. 6316(DLC), 2012 WL 3133547, at *4 (S.D.N.Y. Aug. 1, 2012) (employer was not likely to prevail on defense that it complied with the statutory requirements necessary to take a tip credit as to dining room employees); Monterossa v. Martinez Rest. Corp., No. 11 CIV. 3689(JMF), 2012 WL 3890212, at *4 (S.D.N.Y. Sept. 7, 2012) (restaurant employer could not take “tip credit” with respect to waitresses and general helpers due to failure to comply with regulations).

Defendants attempt to distinguish the cases discussed above as inapplicable here because the defendants in those cases had committed numerous violations of the NYLL. However, none of the distinctions Defendants draw are related to whether or not food service workers receive a tip credit or tip allowance against the prevailing minimum wage. Defendants have not cited a single case in which a court held that food service workers were subject to a completely different hourly minimum wage, as opposed to receiving a tip credit against the standard minimum wage. Cao, the sole case Defendants cite in support of their argument, actually states the opposite:

[T]he Labor Law allows employers to pay tipped workers in the food service industry a lower minimum wage. See N.Y. Lab. Law § 652(4). An employer may receive the benefit of this tip credit only if the employer provides “to each employee a statement with every payment of wages listing ... allowances ... claimed as part of the minimum wage” and “maintain[s] and preserved] for not less than six years weekly payroll records which shall show for each employee ... allowances ... claimed as part of the minimum wage.... ”

2010 WL 4159391, at *2 (quoting Padilla, 643 F.Supp.2d at 309-10) (emphasis added). Cao plainly supports the position that the NYLL permits employers to pay a lower wage to food service workers because those food service workers receive a tip credit against the standard minimum wage — not because there is a wholly separate minimum wage that applies to tipped employees.

With respect to the post-January 1, 2011 regulations, there is significant authority for the position that food service workers receive a tip credit. The Second Circuit Court of Appeals has expressly referred to waiters as receiving a “tip credit” under the revised regulations. Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 240 (2d Cir.2011) (“Under New York Labor Law, as of January 1, 2011, however, employers are entitled to a tip credit of only $2.25.”). The regulations themselves also expressly refer to “[t]ip credits for food service workers.” 12 N.Y.C.R.R. § 146 — 1.3(b). Defendants in-’ elude with their moving papers a Department of Labor poster they claim to have displayed in their restaurants that states that the “[m]aximum [t]ip [cjredit” for food service workers is $2.25. (Dkt. 176-10 at 9). Additionally, the document that Defendants had Ms. Raymond sign on Janu-ary 1, 2011, states that it was “[r]evised 12/28/2010 for New York State tip credit minimum wage increase.” (Id. at 13) (emphasis added). The stipulation entered into by the parties also stipulates that “[djuring the relevant time period Plaintiffs had actual knowledge that Defendants were taking ... tip credits from the minimum wage for those employees working as a server, bartender, host and carside to go server.... ” (Dkt. 176-5 at ¶ 2).

Defendants identify one Department of Labor document that arguably draws a distinction between the minimum wage rate paid to food service workers and other tipped employees'. In the Report and Recommendation of the Minimum Wage Board to the Commissioner of Labor Pursuant to Labor Law Section 655 (Article 19, the Minimum Wage Act) (Dkt. 191-2), one sentence asks, “[s]hould the Wage Orders be amended to clarify how overtime rates are calculated for (a) tipped employees whose employers receive a tip allowance, and (b) employees subject to the lower statutory rate set by Labor Law Section 652(4)?” (Id. at 4). Yet, in other places in the same document, the Minimum Wage Board defines a tip allowance as “when employees receive a lower hourly wage based on the receipt of tips” and discusses when an employer can “tak[e] a tip credit or tip allowance for any food service employees.... ” (Id. at 9-10). Thus, it does not appear that the single isolated sentence identified by Defendants contradicts the above-discussed authority.

Based on the foregoing, there is no basis for the Court to conclude that the NYLL establishes a separate “food service worker minimum wage.” Rather, the relevant provisions permit employers to take a tip credit and pay a cash wage to food service workers that is lower than the minimum wage so long as certain requirements are met. Defendants’ threshold argument fails as a matter of law.

D. Pay Statement Claims

Turning to the merits of Plaintiffs’ claims, Plaintiffs’ first argument is that for the time period prior to January 1, 2011, Defendants failed to comply with the then-existing regulation requiring every hospitality industry employer (including restaurants) to “furnish to each employee a statement with every payment of wages listing hours worked, rates paid, gross wages, allowances, if any, claimed as part of the minimum wage, deductions and net wages.” 12 N.Y.C.R.R. § 137-2.2 (repealed) (emphasis added). Plaintiffs further argue that Defendants failed to comply with the then-existing regulation requiring hospitality industry employers to maintain for six years records showing “allowances, if any, claimed as part of the minimum wage.... ” See 12 N.Y.C.R.R. § 137-2.1 (repealed).

Plaintiffs rely upon the cases discussed above (Copantitla v. Fiskardo Estiatorio, Inc., 788 F.Supp.2d 253 (S.D.N.Y.2011); Lanzetta v. Florio’s Enters., Inc., 763 F.Supp.2d 615 (S.D.N.Y.2011); Padilla v. Manlapaz, 643 F.Supp.2d 302 (E.D.N.Y. 2009); Mendez v. Pizza on Stone, No. 11 Civ. 6316(DLC), 2012 WL 3133547 (S.D.N.Y. Aug. 1, 2012); Monterossa v. Martinez Rest. Corp., No. 11 CIV. 3689(JMF), 2012 WL 3890212 (S.D.N.Y. Sept. 7, 2012); and Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08 Civ. 3725(DC), 2010 WL 4159391 (S.D.N.Y. Sept. 30, 2010)) in support of their position. In each of these cases, which involved violations of both the FLSA and the NYLL, the court held that an employer who failed to provide a pay statement listing the tip allowance and/or failed to retain records of the tip allowance for six years was not entitled to the tip allowance.

Plaintiffs correctly point out that there is no case denying an employee summary judgment when the facts establish that the employer failed to provide a wage statement setting forth the amount of the tip credit or failed to maintain the required records. Yet, there also is not one case that granted summary judgment under the circumstances present in this case. Based on the parties’ stipulations for purposes of Plaintiffs’ motion for partial summary judgment, there is no dispute that the employees received pay equal to the required minimum wage; each paycheck listed, among other things, the hours worked, rate of pay, tips earned, and tip makeup pay; the employees knew the amount of the tip credits taken against the minimum wage with each paycheck; and the employees were not confused about the manner in which the employer took the tip credit. (Dkt. 176-5).

Many of the relevant cases relied upon by Plaintiffs did not involve summary judgment motions. Lanzetta was decided after a bench trial and involved a plaintiff who had worked only for tips and whose employers had retained a portion of her tips. 763 F.Supp.2d at 617-621. Mendez involved a motion for class certification and a defendant who could not show it had provided notice of the tip credit. 2012 WL 3133547, at *4. The defendants in Cao defaulted, had not notified plaintiffs they were taking a tip credit, and had retained 12 to 15 percent of the waiters’ tips. 2010 WL 4159391, at *1-2, *4.

The cases that were decided based on contested motions for summary judgment involved relevant facts not present here. See Copantitla, 788 F.Supp.2d at 271-73 (certain plaintiffs were paid as little as $2.00 per hour and defendant retained a portion of gratuities); Padilla, 643 F.Supp.2d at 306 (defendants never informed plaintiff they would be taking a tip allowance and plaintiff was unable to retain all her tips); Monterossa, 2012 WL 3890212, at *1 (defendant admitted that he never told his employees that they were earning less than the minimum wage because they were receiving tips from customers). In other words, the cases relied upon by Plaintiffs involving contested motions for summary judgment concerned other violations by the employers and, in each case, resulted in the employees being uninformed and/or underpaid.

Moreover, it is not clear that the information provided on Plaintiffs’ paystubs failed to comply with the pre-2011 regulatory requirement of showing the “allowances” that were “claimed as part of the minimum wage.” Defendants argue that they, in fact, complied with the pay statement requirements because they listed the wage rate as “reg-tipped,” rendering it “fundamentally obvious” that an allowance was being taken, and because the relevant regulation did not require that the amount of the tip allowance be listed separately. Defendants further argue that “simple math” would have resulted in Plaintiffs knowing the exact amount of the tip allowance taken. Indeed, there is no dispute that each paystub listed, among other things, the tips earned and any “tip makeup pay,” and Plaintiffs knew the amount of the tip credit taken against the minimum wage. (Dkt. 176-5 at 3-4; 176-6 at ¶ 7).

Unlike the Wage Order discussed below that became effective January 1, 2011, the pre-2011 requirements are not nearly as precise in terms of the information that needed to be included in order to satisfy the requirement of showing “allowances” that were “claimed as part of the minimum wage.” Indeed, the New York State Department of Labor has confirmed that one of the purposes of the Wage Order and changes enacted in 2011 was to “clarify and simplify various provisions of the [previous regulations].” Notice to Employers Regarding Implementation of Wage Order — New York State Department of Labor — Minimum Wage Requirements for the Hospitality Industry, available online at https://www.labor.ny.gov/worker proteetion/laborstandards/PDFs/ Hospitality% 20Wage% 200rder/Hospitali-ty_Wage_Order_Implementation.pdf (last accessed July 28, 2014); see also Cuzco v. F & J Steaks 37th Street LLC, No. 13evl859 (PAC), 2014 WL 2210615, at *2 (S.D.N.Y. May 28, 2014) (setting forth the legislative history of the Wage Order and explaining that “a main purpose” of the statutory and regulatory changes in 2011 was to “clarify [the] existing regulations” and “provide clear and concise guidance to employers and employees” (quotation omitted)).

Having thoroughly reviewed the record and taking into account the stipulation entered into by the parties, the Court cannot determine, at this preliminary stage of the proceedings, that the information provided by Defendants on Ms. Hicks’ and Ms. Raymond’s pay statements failed to comply with the pre-2011 regulations. Plaintiffs’ arguments rely heavily on an acknowl-edgement by Susan Sabio, Defendants’ Director of Human Resources, that Defendants did not “furnish to employees a statement with every payment of wages showing the allowance [Defendants] were taking for the tip credit provision against the minimum wage[.]” (Dkt. 146-2 at 100:5-13). Reviewing this statement in context, however, it appears that Ms. Sa-bio was distinguishing between what she understood to be allowances (meals, lodgings, etc.) and the tip credit allowance. It is not clear to the Court, at this early stage of discovery, that Ms. Sabio was stating that the pay statements at issue did not provide the requisite notice to the employees that Defendants were taking a credit for tips against the minimum wage.

In sum, Plaintiffs have not met their burden, at this stage of the litigation, of demonstrating through competent evidence that the requirements of the law pre-2011 were not met. As a result, they are not entitled to partial summary judgment on their pay statement claims related to the pre-2011 regulations.

However, summary judgment in favor of Defendants is also unwarranted. The Court is not persuaded by Defendants’ argument that the simple act of designating the wage paid “reg-tipped” complies with the NYLL, and none of the relevant authority supports this position. Nor is it obvious from the face of the pay statements provided to the Court what “simple math” the Defendants claim Plaintiffs should have performed — the pay statements do not appear to have listed the standard minimum wage as a matter of course, and so a necessary element of the proposed mathematical equation appears to be missing.

Hernandez v. BCI Coca-Cola Bottling Co., 554 Fed.Appx. 661 (9th Cir.2014), relied upon by Defendants, is distinguishable. In that case, which considered whether an employer had complied with the California Labor Code, the wage statements at issue provided every piece of information the plaintiff needed to determine how many overtime hours he had worked and his rate of pay for those overtime hours. Id. at 662. The Hernandez court also cited with approval McKenzie v. Federal Express Corp., 765 F.Supp.2d 1222 (C.D.Cal.2011), in which the court granted summary judgment to a plaintiff claiming violations of the California Labor Code because his wage statements did not list the beginning date for each pay period and he therefore would have had to refer to outside sources such as a calendar or a work schedule for verification. Id. at 1230. Moreover, in Hernandez, the court noted that California courts had expressly held that “[w]age statements comply with [the California Labor Code] when a plaintiff employee can ascertain the required information by performing simple math, using figures on the face of the wage statement.” 554 Fed.Appx. at 662 (emphasis added). Here, not only have Defendants failed to identify any comparable holding from a New York court or a federal court applying New York law, one of the key mathematical figures at issue (the standard minimum wage) does not appear to be listed on the face of the wage statement.

Defendants also claim that they are entitled to summary judgment because loss of the tip credit is not an available remedy for failure to comply with notice requirements. (Dkt. 178 at 21-22). Defendants argue that NYLL § 198 provides that the appropriate remedy for a pay statement violation is recovery of the underpayment of wages and that Plaintiffs were not underpaid. This is a circular argument without support in the law. By definition, if Defendants took a tip credit to which they were not entitled, they underpaid wages. Defendants’ argument assumes that they are always entitled to count tips as part of the wages they paid Plaintiffs, but the case law simply does not support this conclusion. For example, in Lanzetta, the plaintiff “earned significant tip income waiting tables” (up to ten times the minimum wage), yet because defendant did not comply with the regulations, it owed plaintiff the full standard minimum wage. 763 F.Supp.2d at 623-24; see also Paz v. Piedra, No. 09 Civ. 03977(LAK)(GWG), 2012 WL 121103, at *9 (S.D.N.Y. Jan. 12, 2012) (“Because defendants failed to inform plaintiffs and the class members of their intention to take a tip credit ... defendants were ineligible to avail themselves of the NYLL’s tip credit provisions.”).

The Court is cognizant that the requirements of the New York Minimum Wage Act are to be construed in favor of employees. See Settlement Home Care, Inc. v. Indus. Bd. of Appeals of Dep’t of Labor, 151 A.D.2d 580, 581, 542 N.Y.S.2d 346 (2d Dep’t 1989) (“The State Minimum Wage Act constitutes remedial legislation designed to relieve the financial hardship experienced by persons employed in occupations ‘at wages insufficient to provide adequate maintenance for themselves and their families’ (Labor Law § 650). As such, it is to be liberally construed so as to permit as many individuals as possible to take advantage of the benefits it offers. Conversely, exceptions to this remedial legislation are to be narrowly construed so as not to frustrate the legislative purpose underlying its enactment.”) (citations omitted). Here, Defendants have not shown that their actions complied with the NYLL and its associated regulations by providing Plaintiffs with all the information to which they were entitled.

For the foregoing reasons, Plaintiffs’ motion for partial summary judgment and Defendants’ cross-motion for partial summary judgment are denied as to the pay statement claims. The record is insufficiently developed at this time to permit summary judgment in favor of either party-

E. Wage Notice Claims

Plaintiffs also seek partial summary judgment on the basis that Defendants failed to comply with 12 N.Y.C.R.R. § 146-2.2. This regulation went into effect on January 1, 2011, and provides greater clarity than the pre-2011 regulations as to the precise information that should be disclosed to an employee. Section 146-2.2 provides, in relevant part, as follows:

(a) Prior to the start of employment, an employer shall give each employee written notice of the employee’s regular hourly pay rate, overtime hourly pay rate, the amount of tip credit, if any, to he taken from the basic minimum hourly rate, and the regular payday. The notice shall also state that extra pay is required if tips are insufficient to bring the employee up to the basic minimum hourly rate ....

(b) Such notice shall also be required prior to any change in the employee’s hourly rates of pay.

12 N.Y.C.R.R. § 146-2.2 (emphasis added). This regulation „ is enforced by 12 N.Y.C.R.R. § 146-1.3, which provides: “An employer may take a credit towards the basic minimum hourly rate if a service employee or food service worker receives enough tips and if the employee has been notified of the tip credit as required in section 14.6-2.2 of this Part.” 12 N.Y.C.R.R. § 146-1.3 (emphasis added).

In addition to the arguments discussed above, Defendants make two key arguments in opposition to Plaintiffs’ motion for partial summary judgment with respect to the Wage Order. First, Defendants contend that neither Ms. Hicks nor Ms. Raymond was entitled to a wage notice under this section because they neither started employment nor received a change in their rates of pay after the effective date of the Wage Order. Defendants further argue that loss of the tip credit is not an appropriate remedy for a wage notice violation and that to the extent the regulations require this as a remedy, they are in conflict with the statute.

With respect to Defendants’ first argument, it appears to be undisputed that Ms. Hicks ceased employment with Defendants prior to January 1, 2011. As such, Defendants are correct that she was not entitled to a wage notice under the Wage Order.

As to Ms. Raymond, Defendants’ argument lacks merit. Ms. Raymond’s hourly wage was increased from $4.65 per hour to $5.00 per hour on January 1, 2011. (Dkt. 176-10 at 13). Pursuant to 12 N.Y.C.R.R. § 146-2.2(b), the tip credit disclosures set forth in the new regulations needed to be made to Ms. Raymond in the form of a written notice. Nonetheless, Defendants argue that Ms. Raymond’s wages increased at the same time that the new regulations went into effect, and that the wage notice requirement therefore did not apply to this pay increase.

This argument is flawed because it misapprehends the manner in which the Minimum Wage Act and its associated regulations operate. The regulations requiring wage notices went into effect on January 1, 2011. As such, an employer who changed a wage on January 1, 2011, was required to provide a wage notice. Defendants’ argument assumes that Ms. Raymond’s wage changed simultaneously with the Wage Order becoming effective, because January 1, 2011, is also when the higher cash wage for food service workers took effect. This is not how the Minimum Wage Act operates. The Minimum Wage Act does not set any particular individual’s wage; it simply tells employers what the floor is for such wages.

For example, Defendants would have been free to pay Ms. Raymond $6.00 per hour for tipped occupations as of January 1, 2011. This interpretation of the statute is confirmed by the fact that the Department of Labor gave employers a two-month grace period in which to implement the wage increases. See Notice to Employers Regarding Implementation of Wage Order — New York State Department of Labor Minimum Wage Requirements for the Hospitality Industry, available online at https://www.labor.ny.gov/worker protection/laborstandards/PDFs/ Hospitality% 20Wage% 20Order/Hospitali-ty_Wage_Order_Implementation.pdf (last accessed July 28, 2014).

It is ultimately up to the employer to set wages, though the employer will be subject to liability if those wages are not in compliance with the Minimum Wage Act. As such, Ms. Raymond’s pay increase did not happen automatically, by operation of law. Defendants were instead required to take affirmative steps to increase Ms. Raymond’s wage, and the record indicates that these affirmative steps occurred on January 1, 2011, after the Wage Order became effective. (See Dkt. 176-8 at 25; Dkt. 176-10 at 13).

Furthermore, even if Ms. Raymond’s pay was increased at the same time the Wage Order became effective, Defendants’ argument still fails by virtue of the language in 12 N.Y.C.R.R. § 146-1.3. That regulation provides that an employer may take a tip credit towards the basic minimum hourly rate only if the employee has received the notice required by 12 N.Y.C.R.R. § 146-2.2. There is nothing in the regulations suggesting that existing employees were not equally entitled to notice prior to the employer taking a tip credit, and it is undisputed that Ms. Raymond did not receive a notice containing the information set forth in 12 N.Y.C.R.R. § 146-2.2. Therefore, regardless of whether Ms. Raymond’s pay was increased at the same time the Wage Order became effective, Defendants could only take advantage of the tip credit by providing the required notice to Ms. Raymond.

At oral argument on this matter, Defendants also raised the issue that they were entitled to the affirmative defense set forth in NYLL § 198(l-b). This statute provides:

In any action or administrative proceeding to recover damages for violation of paragraph (d) of subdivision one of section one hundred ninety-five of this article, it shall be an affirmative defense that (i) the employer made complete and timely payment of all wages due pursuant to this article or article nineteen or article hineteen-A of this chapter to the employee who was not provided notice as required by subdivision one of section one hundred ninety-five of this article or (ii) the employer reasonably believed in good faith that it was not required to provide the employee with notice pursuant to subdivision one of section one hundred ninety-five of this article.

NYLL § 198(1—b). This affirmative defense is simply not applicable to Ms. Raymond’s wage notice claim. By its own terms, the affirmative defense is limited to alleged violations of NYLL § 195(1)(d), which addresses errors or omissions in non-English language notices. Here, Plaintiffs do not assert a violation of NYLL § 195(1)(d), nor is it the provision of law that the relevant sections of the Wage Order seek to enforce. As such, the affirmative defense is not relevant to Ms. Raymond’s wage notice claim.

Defendants also argue that the Wage Order’s notice requirements are unenforceable because they are inconsistent with NYLL §§ 198 and 652(4). These arguments have been discussed above and are without merit. First, as to § 652(4), the plain language of the statute makes it clear that food service workers are entitled to the standard minimum wage unless the employer is entitled to claim credit for some portion thereof in tips. Second, as to § 198, again, Defendants assume that Plaintiffs were not “entitled” to the standard minimum wage because they received tips.' The plain language of § 198 does not lead to this conclusion, as it makes no mention of tips and does not set forth the circumstances under which a credit may be claimed.

Put simply, the Department of Labor’s Wage Order setting forth the conditions pursuant to which an employer is entitled to claim a tip credit does not conflict with either § 652(4) or § 198. The Department of Labor’s interpretation of the statutes it is charged with enforcing is entitled to deference by this Court. Indeed, the New York Court of Appeals recently confirmed that the Wage Order is entitled to deference. Barenboim v. Starbucks Corp., 21 N.Y.3d 460, 471, 972 N.Y.S.2d 191, 995 N.E.2d 153 (2013) (upholding Department of Labor’s interpretation of NYLL § 196-d as codified by the Wage Order). The Wage Order is not “irrational or unreasonable,” see id., and the Court will therefore enforce its terms. See Paz, 2012 WL 121103, at *9 (enforcing the notice provisions of the Wage Order).

The record plainly shows that Defendants did not provide Ms. Raymond with a compliant wage notice on January 1, 2011. Although Defendants did provide a notice to Ms. Raymond on or about January 1, 2011, that notice did not state that her employer intended to take a tip credit, the amount of the tip credit to be taken from the basic minimum hourly rate, or that she was entitled to makeup pay if she did not earn enough in tips to bring her rate of pay up to the basic minimum hourly rate. (Dkt. 176-10 at 13). No reasonable jury could conclude that this wage notice complied with the Wage Order.

Defendants argue that the Court should reject Plaintiffs’ claims pursuant to the legal maxim de minimis non curat lex— “the law does not care for trifles.” It is true that the doctrine of de minimis non curat lex “is part of the established background of legal principles against which all enactments are adopted....” Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992). However, Defendants’ disregard of the Wage Order is not properly deemed a trifle. Certainly New York State does not consider failure to provide employees with proper wage notices a trifle, in that NYLL § 198(1—b) allows for damages of up to $2,500 for failure to provide the same.

As a result, Defendants’ cross-motion for partial summary judgment on the wage notice claim is denied and Plaintiffs’ motion for partial summary judgment on the wage notice claim is granted as to Ms. Raymond against her former employer, TLC West, LLC. Plaintiffs have not demonstrated, at this stage of the proceedings, that the relationship between the other Defendants and TLC West, LLC justifies an entry of judgment as to any other Defendant.

With respect to damages, Defendants were not entitled to take a tip credit and they are therefore liable to Ms. Raymond for paying her less than the standard minimum wage. However, the record is not clear as to the amount of damages that Ms. Raymond should be awarded, and the Court is not able to readily calculate that amount based upon the record before it at this time. Further submissions will be necessary in order for damages to be calculated. Ms. Raymond will be entitled to pre-judgment interest at the rate of 9% on any damages pursuant to N.Y.C.P.L.R. §§ 5001 and 5004. As discussed below, Defendants are not entitled to a set off for the tips received by Ms. Raymond, but it would be premature to award liquidated damages.

F. Set Off for Tips Actually Received

In addition to their merits-based arguments, Defendants also argue that even if they violated the NYLL, they are not liable for damages because Defendants should be credited for the full amount of tips actually received by Plaintiffs, which met or exceeded the applicable minimum wage. In support of this position, Defendants cite a single decision of the New York State Industrial Board of Appeals (Dkt. 176-2 at 48) (the “Tip Top Decision”) in which a Department of Labor Investigator “credited” an employer who had failed to pay minimum wage with the tips that the employees conceded they had received.

Plaintiffs argue that the Tip Top Decision is not persuasive authority because it was not decided in the restaurant context, was decided under the pre-January 1, 2011, regulations, does not even describe what “credited” means in this context, and, even accepting Defendants’ characterization, is contrary to well-established case law holding that a defendant who does not comply with the regulations may not receive any credit towards the minimum wage for tips. Plaintiffs further point out that accepting Defendants’ position as to this point would mean that they could have paid their employees nothing, and they would not be liable so long as the tips received exceeded $7.25 per hour.

The Court is unpersuaded by Defendants’ position. The purpose of the regulatory scheme is to set forth the conditions pursuant to which an employer may count tips as part of wages. Accepting Defendants’ argument would effectively undermine this regulatory goal. The cases previously discussed hold that where an employer fails to follow the regulations, it may not receive credit for tips. In particular, in Lanzetta, it was undisputed that the plaintiff “earned significant tip income waiting tables,” and the defendant took the position that plaintiff had actually received “more than the minimum wage ten times over.” 763 F.Supp.2d at 623. Nevertheless, the Lanzetta court held that the plaintiff was entitled to recover the regular minimum wage rate. Id. at 623-24. As such, Defendants are not entitled to a set-off for tips actually received by Ms. Raymond.

G. Liquidated Damages

Plaintiffs request liquidated damages pursuant to the NYLL because Defendants allegedly did not have a “good faith basis” for their actions. (Dkt. 145 at 14) (citing NYLL § 198(l-a)). Plaintiffs claim that their deposition of Defendants’ Director of Human Resources, Susan Sa-bio, revealed that Defendants were knowingly non-compliant with the law and deliberately ignored their counsel’s warnings as to the information they needed to supply to their employees.

The Court finds Plaintiffs’ request premature. Very limited discovery has occurred in this case. The Court has reviewed Ms. Sabio’s deposition transcript, and it does not, in the Court’s opinion, conclusively establish that Defendants were not acting in good faith. Moreover, state of mind determinations are generally not appropriate for the Court to make. See Light v. W2001 Metro. Hotel Realty LLC, No. 10 Civ. 4449(SAS), 2011 WL 2175778, at *4 (S.D.N.Y. June 2, 2011) (“[DJetermination of a defendant’s state of mind is generally a question for the jury....”).

II. Class Certification Motion

. On January 27, 2014, Plaintiffs filed a motion for class certification pursuant to Fed.R.Civ.P. 23, arguing that the class should be certified because Plaintiffs meet the requirements of Fed.R.Civ.P. 23. (Dkt. 143). Defendants oppose Plaintiffs’ motion on the grounds that the named Plaintiffs are inadequate class representatives and that Plaintiffs’ state law claims are neither common nor typical of the putative class. (Dkt. 177 at 13-22). Defendants also argue that Plaintiffs have proposed impermissible fail-safe classes, and that Plaintiffs’ proposed class notice is premature. (Id. at 22-24). Plaintiffs submitted a reply on April 3, 2014. (Dkt. 192).

Because Plaintiffs have met the requirements of Fed.R.Civ.P. 23, the Court grants Plaintiffs’ motion for class certification. The Court directs the parties to work in good faith to agree on any necessary revisions to the Court’s proposed subclasses or, if an agreement cannot be reached, to submit any proposed changes to the Court’s proposed redefinition within twenty (20) days of entry of this Decision and Order. Furthermore, Plaintiffs and Defendants are directed to confer in good faith and submit a joint letter to the Court proposing a single form of notice for the Rule 23 class within twenty (20) days of entry of this Decision and Order.

A. The Fed.R.Civ.P. 23(a) Requirements for Class Certification

The requirements for class certification pursuant to Fed.R.Civ.P. 23 include:

(1) Numerosity: “the class is so numerous that joinder of all members is impracticable;”

(2) Commonality: “there are questions of law or fact common to the class;”

(3) Typicality: “the claims or defenses of the representative parties are typical of the claims or defenses of the class;” and

(4)Adequacy: “the representative parties will fairly and adequately protect the interests of the class.”

See Fed.R.Civ.P. 23(a). District courts may certify a case as a class action whenever the proposed class meets the requirements of Rule 23(a) and also meets the requirements of Rule 23(b)(1), (b)(2), or (b)(3). In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 133 (2d Cir.2001), overruled on other grounds by In re Initial Pub. Offerings Sec. Litig, 471 F.3d 24, 42 (2d Cir.2006). Plaintiffs contend that the Court may certify the class under either subsection (b)(1)(A), (b)(3), or (c)(4). (Dkt. 143-1 at 12-16).

District Courts customarily retain “broad discretion” on the issue of class certification. Enea v. Bloomberg, L.P., No. 12 Civ. 4656(GBD)(FM), 2014 WL 1044027, at *2 (S.D.N.