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Five Guys Loses Round to Two Women in Nationwide Pay Bias Suit

Sept. 25, 2018, 7:56 PM

Two women who accused Five Guys of gender-based pay discrimination got a federal judge’s initial go-ahead to proceed collectively in their nationwide lawsuit against the burger chain.

Jody Finefrock and Julia Francis, who managed Five Guys locations in Pennsylvania, say the company violated the Equal Pay Act by paying female restaurant managers less than their male counterparts.

Finefrock and Francis presented enough evidence to convince U.S. District Judge Sylvia Rambo to conditionally certify a collective of female restaurant managers at corporate-owned Five Guys locations. Restaurant managers nationwide have the same job responsibilities, compensation decisions were finalized by a central office, and Finefrock and Francis earned less than men in comparable positions, Rambo said.

Five Guys didn’t respond to requests for comment.

Rambo said she must approve the language for an opt-in notice that will be sent to prospective plaintiffs inviting them to join the lawsuit. Five Guys and the plaintiffs will have until Oct. 25 to submit a proposed notice.

Rambo rejected Five Guys’ argument that she shouldn’t conditionally certify the nationwide collective because the Equal Pay Act only bars employers from discriminating against women who work in the same establishment.

That substantive legal issue should be dealt with in the second step of the collective action process, when Five Guys can attempt to decertify the collective, Rambo said.

The case is Finefrock v. Five Guys Operations, LLC, M.D. Pa., No. 16-1221, conditional certification 9/25/18.

To contact the reporter on this story: Robert Iafolla in Washington at rIafolla@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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