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Chipotle Workers Fight To Keep Opt-In OT Plaintiffs

Law360—Matthew Perlman

Workers in an overtime collective action against Chipotle Mexican Grill Inc. asked a New York magistrate judge on Tuesday not to dismiss 66 opt-in plaintiffs from the suit, despite the restaurant’s claims that they were unresponsive.

Chipotle sent a letter to U.S. Magistrate Judge Sarah Netburn last week saying the opt-in plaintiffs failed to participate in discovery and should be dismissed from the suit with prejudice. The letter said these workers were warned on four separate occasions by the court that their failure to respond could result in their being tossed from the collective action, and that’s what should happen.

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The workers sent a letter to Judge Netburn on Tuesday, arguing that Chipotle is only entitled to representative discovery, and that it had obtained this from 86 other individuals who were responsive.

“Dismissal is particularly inappropriate here, where Chipotle was not prejudiced by the failure to respond,” Justin M. Swartz, an attorney for the class, wrote. “Chipotle certainly did not suffer from a lack of information.”

Swartz also wrote that the opt-ins may have been unresponsive because they feared retribution from Chipotle.

“There is also no evidence that any unresponsive opt-in acted in bad faith. More likely, some feared retaliation,” Swartz wrote. “In fact, 22 of the unresponsive opt-ins are still employed by Chipotle, making them especially vulnerable.”

Initially launched in November 2012, the suit accuses the restaurant chain of illegally denying apprentices overtime and classifying them as managerial workers even though they spent most of their time on tasks like filling orders and operating cash registers. Chipotle has argued that its employees meet the legal standards of being part of management and enjoy the salaries and benefits that come with such positions, according to court documents.

The court certified the collective action in June 2013, and discovery requests were served on the opt-ins in August 2014. Chipotle first asked the court for help in getting that discovery in September.

Earlier this month the two sides sparred over the admission of a consultant’s report, which looked at the activities of four employees who were considered apprentices to see whether they could be have been misclassified.

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The plaintiffs are represented by Gregg Shavitz and Keith Stern of the Shavitz Law Group PA, Brian Schaffer and Frank Mazzaferro of Fitapelli & Schaffer LLP, and Justin Swartz, Ossai Miazad and Melissa L. Stewart of Outten & Golden LLP.

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The case is Scott v. Chipotle Mexican Grill Inc., case number 1:12-cv-08333, in the U.S. District Court for the Southern District of New York.