UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Miami Division 

Case No.: 20-22603-CIV-COOKE/GOODMAN 

 

Erik Chavez, individually, and on 

behalf of others similarly situated, 

Plaintiff, 

vs. 

Grill Enterprises, LLC, a Florida limited 

liability company, d/b/a “Los 

Parrilleros” and “Parrilleros Tavern”, 

and; 

Ruben Sierra, individually, 

Defendants. 

CLASS REPRESENTATION

JOINT PROPOSED JURY INSTRUCTIONS AND VERDICT FORM 

Plaintiffs and Defendants, by and through their respective 

undersigned counsel, and in accordance with the Court’s “Order Setting 

Civil Trial Date and Pretrial Deadlines” [DE 42, p. 3] hereby submit their Joint 

Proposed Jury Instructions and Verdict Form, attached. 

Instructions proposed only by Plaintiffs (to which Defendants 

object) are italicized. 

Instructions proposed only by Defendants (to which Defendants 

object) are bold-faced. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 1 of 132
2 

Dated: November XX, 2021 

By: By: 

Anthony F. Sanchez, Esq. 

Florida Bar No.: 789925 

Email: afs@laborlawfla.com 

Email: faz@laborlawfla.com 

ANTHONY F. SANCHEZ, P.A. 

6701 Sunset Drive, Suite 101 

Miami, Florida 33143 

Tel.: 305-665-9211 

 

 

Counsel for Plaintiffs

 Todd W. Shulby, Esq. 

Florida Bar No.: 068365 

Email: 

tshulby@shulbylaw.com 

Email: 

llangford@shulbylaw.com 

TODD W. SHULBY, P.A. 

1792 Bell Tower Lane 

Weston, Florida 33326 

Tel: 954-530-2236 

Fax: 954-530-6628 

Counsel for Defendants

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 2 of 132
3 

PROPOSED JURY INSTRUCTION NO. 1 

 (General Preliminary Instruction) 

Members of the Jury: 

Now that you’ve been sworn, I need to explain some basic principles 

about a civil trial and your duty as jurors. These are preliminary instructions. 

I’ll give you more detailed instructions at the end of the trial. 

The jury’s duty: 

It’s your duty to listen to the evidence, decide what happened, and 

apply the law to the facts. It’s my job to provide you with the law you must 

apply – and you must follow the law even if you disagree with it. 

What is evidence: 

You must decide the case on only the evidence presented in the 

courtroom. Evidence comes in many forms. It can be testimony about what 

someone saw, heard, or smelled. It can be an exhibit or a photograph. It 

can be someone’s opinion. 

Some evidence may prove a fact indirectly. Let’s say a witness saw wet 

grass outside and people walking into the courthouse carrying wet 

umbrellas. This may be indirect evidence that it rained, even though the 

witness didn’t personally see it rain. Indirect evidence like this is also called 

“circumstantial evidence” – simply a chain of circumstances that likely 

proves a fact. 

As far as the law is concerned, it makes no difference whether 

evidence is direct or indirect. You may choose to believe or disbelieve either 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 3 of 132
4 

kind. Your job is to give each piece of evidence whatever weight you think 

it deserves. 

What is not evidence: 

During the trial, you’ll hear certain things that are not evidence and 

you must not consider them. 

First, the lawyers’ statements and arguments aren’t evidence. In their 

opening statements and closing arguments, the lawyers will discuss the 

case. Their remarks may help you follow each side’s arguments and 

presentation of evidence. But the remarks themselves aren’t evidence and 

shouldn’t play a role in your deliberations. 

Second, the lawyers’ questions and objections aren’t evidence. Only 

the witnesses’ answers are evidence. Don’t decide that something is true 

just because a lawyer’s question suggests that it is. For example, a lawyer 

may ask a witness, “You saw Mr. Jones hit his sister, didn’t you?” That 

question is not evidence of what the witness saw or what Mr. Jones did – 

unless the witness agrees with it. 

There are rules of evidence that control what the court can receive 

into evidence. When a lawyer asks a witness a question or presents an 

exhibit, the opposing lawyer may object if [he/she] thinks the rules of 

evidence don’t permit it. If I overrule the objection, then the witness may 

answer the question or the court may receive the exhibit. If I sustain the 

objection, then the witness cannot answer the question, and the court 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 4 of 132
5 

cannot receive the exhibit. When I sustain an objection to a question, you 

must ignore the question and not guess what the answer might have been. 

Sometimes I may disallow evidence – this is also called “striking” 

evidence – and order you to disregard or ignore it. That means that you 

must not consider that evidence when you are deciding the case. 

I may allow some evidence for only a limited purpose. When I instruct 

you that I have admitted an item of evidence for a limited purpose, you 

must consider it for only that purpose and no other. 

Credibility of witnesses: 

To reach a verdict, you may have to decide which testimony to 

believe and which testimony not to believe. You may believe everything a 

witness says, part of it, or none of it. When considering a witness’s 

testimony, you may take into account: 

· the witness’s opportunity and ability to see, hear, or know the 

things the witness is testifying about; 

· the witness’s memory; 

· the witness’s manner while testifying; 

· any interest the witness has in the outcome of the case; 

· any bias or prejudice the witness may have; 

· any other evidence that contradicts the witness’s testimony; 

· the reasonableness of the witness’s testimony in light of all the 

evidence; and 

· any other factors affecting believability. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 5 of 132
6 

At the end of the trial, I’ll give you additional guidelines for 

determining a witness’s credibility. 

Description of the case: 

This is a civil case. To help you follow the evidence, I’ll summarize the 

parties’ positions. The Plaintiff, [name of plaintiff], claims the Defendant, 

[name of defendant], [describe claim(s)]. [Name of defendant] denies those 

claims and contends that [describe counterclaims or affirmative defenses]. 

Burden of proof: 

[Name of plaintiff] has the burden of proving [his/her/its] case by 

what the law calls a “preponderance of the evidence.” That means [name of 

plaintiff] must prove that, in light of all the evidence, what [he/she/it] claims 

is more likely true than not. So, if you could put the evidence favoring 

[name of plaintiff] and the evidence favoring [name of defendant] on 

opposite sides of balancing scales, [name of plaintiff] needs to make the 

scales tip to [his/her/its] side. If [name of plaintiff] fails to meet this burden, 

you must find in favor of [name of defendant]. 

To decide whether any fact has been proved by a preponderance of 

the evidence, you may – unless I instruct you otherwise – consider the 

testimony of all witnesses, regardless of who called them, and all exhibits 

that the court allowed, regardless of who produced them. After considering 

all the evidence, if you decide a claim or fact is more likely true than not, 

then the claim or fact has been proved by a preponderance of the evidence. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 6 of 132
7 

[Optional: On certain issues, called “affirmative defenses,” [name of 

defendant] has the burden of proving the elements of a defense by a 

preponderance of the evidence. I’ll instruct you on the facts [name of 

defendant] must prove for any affirmative defense. After considering all the 

evidence, if you decide that [name of defendant] has successfully proven 

that the required facts are more likely true than not, the affirmative defense 

is proved.] 

[Optional: [Name of defendant] has also brought claims for relief 

against [name of plaintiff] called counterclaims. On these claims, [name of 

defendant] has the same burden of proof that [name of plaintiff] has for 

[his/her/its] claims.] 

Conduct of the jury: 

While serving on the jury, you may not talk with anyone about 

anything related to the case. You may tell people that you’re a juror and 

give them information about when you must be in court. But you must not 

discuss anything about the case itself with anyone. 

You shouldn’t even talk about the case with each other until you 

begin your deliberations. You want to make sure you’ve heard everything – 

all the evidence, the lawyers’ closing arguments, and my instructions on the 

law – before you begin deliberating. You should keep an open mind until 

the end of the trial. Premature discussions may lead to a premature 

decision. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 7 of 132
8 

In this age of technology, I want to emphasize that in addition to not 

talking face-to-face with anyone about the case, you must not 

communicate with anyone about the case by any other means. This 

includes e-mails, text messages, phone calls, and the Internet, including 

social-networking websites and apps such as Facebook, Instagram, 

Snapchat, YouTube, and Twitter. You may not use any similar technology 

of social media, even if I have not specifically mentioned it here. 

You must not provide any information about the case to anyone by 

any means whatsoever, and that includes posting information about the 

case, or what you are doing in the case, on any device or Internet site, 

including blogs, chat rooms, social websites, or any other means. 

You also shouldn’t Google or search online or offline for any 

information about the case, the parties, or the law. Don’t read or listen to 

the news about this case, visit any places related to this case, or research 

any fact, issue, or law related to this case. The law forbids the jurors to talk 

with anyone else about the case and forbids anyone else to talk to the 

jurors about it. It’s very important that you understand why these rules exist 

and why they’re so important. You must base your decision only on the 

testimony and other evidence presented in the courtroom. It is not fair to 

the parties if you base your decision in any way on information you acquire 

outside the courtroom. For example, the law often uses words and phrases 

in special ways, so it’s important that any definitions you hear come only 

from me and not from any other source. Only you jurors can decide a 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 8 of 132
9 

verdict in this case. The law sees only you as fair, and only you have 

promised to be fair – no one else is so qualified. 

Taking notes: 

If you wish, you may take notes to help you remember what the 

witnesses said. If you do take notes, please don’t share them with anyone 

until you go to the jury room to decide the case. Don’t let note-taking 

distract you from carefully listening to and observing the witnesses. When 

you leave the courtroom, you should leave your notes hidden from view in 

the jury room. 

Whether or not you take notes, you should rely on your own memory 

of the testimony. Your notes are there only to help your memory. They’re 

not entitled to greater weight than your memory or impression about the 

testimony. 

Course of the trial: 

Let’s walk through the trial. First, each side may make an opening 

statement, but they don’t have to. Remember, an opening statement isn’t 

evidence, and it’s not supposed to be argumentative; it’s just an outline of 

what that party intends to prove. 

Next, [name of plaintiff] will present [his/her/its] witnesses and ask 

them questions. After [name of plaintiff] questions the witness, [name of 

defendant] may ask the witness questions – this is called “cross-examining” 

the witness. Then [name of defendant] will present [his/her/its] witnesses, 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 9 of 132
10 

and [name of plaintiff] may cross-examine them. You should base your 

decision on all the evidence, regardless of which party presented it. 

After all the evidence is in, the parties’ lawyers will present their 

closing arguments to summarize and interpret the evidence for you, and 

then I’ll give you instructions on the law. 

[Note: Some judges may wish to give some instructions before 

closing arguments. See Fed. R. Civ. P. 51(b)(3).] 

You’ll then go to the jury room to deliberate. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 1.1 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 10 of

132
11 

PROPOSED JURY INSTRUCTION NO. 2 

 (Jury Questions) 

During this trial, you may submit questions to a witness after the 

lawyers have finished their own questioning. Here is how the procedure 

works: After each witness has testified, and the lawyers have asked all of 

their questions, I’ll ask if any of you have questions. If you have a question, 

write it down and give it to the court staff. 

You may submit a question for a witness only to clarify an answer or 

to help you understand the evidence. Our experience with juror questions 

indicates that jurors rarely have more than a few questions for any one 

witness, and there may be no questions at all for some witnesses. 

If you submit a question, the court staff will give it to me and I’ll share 

your questions with the lawyers in the case. If the rules of evidence allow 

your question, one of the lawyers or I will read your question to the witness. 

I may modify the form or phrasing of a question so that it’s allowed under 

the evidence rules. Sometimes, I may not allow the questions to be read to 

the witness, either because the law does not allow it or because another 

witness is in a better position to answer the question. If I can’t allow the 

witness to answer a question, you must not draw any conclusions from that 

fact or speculate on what the answer might have been. 

Here are several important things to keep in mind about your 

questions for the witnesses: 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 11 of

132
12 

· First, you must submit all questions in writing. Please don’t ask 

any questions aloud. 

· Second, the court can’t re-call witnesses to the stand for 

additional juror questions. If you have a question for a 

particular witness, you must submit it when I ask. 

· Finally, because you should remain neutral and open-minded 

throughout the trial, you should phrase your questions in a 

way that doesn’t express an opinion about the case or a 

witness. You must keep an open mind until you’ve heard all 

the evidence, the closing arguments, and my final instructions 

on the law. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 1.4 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 12 of

132
13 

PROPOSED JURY INSTRUCTION NO. 3 

 (Official English Translation/Interpretation) 

You may hear or see languages other than English during this trial. 

You must consider evidence provided through only the official court 

[interpreters/translators]. It is important that all jurors consider the same 

evidence. So even if some of you know [language], you must accept the 

English [interpretation/translation] provided and disregard any different 

meaning. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 1.3 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 13 of

132
14 

PROPOSED JURY INSTRUCTION NO. 4 

 (Interim Statements) 

At times during the trial, the lawyers will address you. You’ll soon hear 

the lawyers’ opening statements, and at the trial’s conclusion you’ll hear 

their closing arguments. Sometimes the lawyers may choose to make short 

statements to you, either to preview upcoming evidence or to summarize 

and highlight evidence they just presented. These statements and 

arguments are the lawyers’ views of the evidence or of what they anticipate 

the evidence will be. They are not evidence themselves. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 1.5 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 14 of

132
15 

PROPOSED JURY INSTRUCTION NO. 5 

 (Stipulations) 

Sometimes the parties have agreed that certain facts are true. This 

agreement is called a stipulation. You must treat these facts as proved for 

this case. 

The parties have stipulated that: 

a. Plaintiffs provided labor to Defendant Grill Enterprises from the 

beginning of their respective employment with Grill Enterprises 

until the end of their respective employment with Grill Enterprises. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 2.1 (2020)(Modified 

to include stipulations))

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 15 of

132
16 

PROPOSED JURY INSTRUCTION NO. 6 

(Use of Depositions) 

A deposition is a witness’s sworn testimony that is taken before the 

trial. During a deposition, the witness is under oath and swears to tell the 

truth, and the lawyers for each party may ask questions. A court reporter is 

present and records the questions and answers. 

The deposition of [name of witness], taken on [date], [is about to 

be/has been] presented to you [by a video/by reading the transcript]. 

Deposition testimony is entitled to the same consideration as live 

testimony, and you must judge it in the same way as if the witness was 

testifying in court. 

[Do not place any significance on the behavior or tone of voice of any 

person reading the questions or answers.] 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 2.2 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 16 of

132
17 

PROPOSED JURY INSTRUCTION NO. 7 

 (Interim Statements) 

At the beginning of the trial, I told you that the lawyers might make 

short statements previewing upcoming evidence or summarizing and 

highlighting evidence that they have already presented before. Right now, 

[Mr./Ms.] [name of attorney] is going to make a short statement. Please 

remember that the statement you are about to hear – like all statements by 

the lawyers – is [Mr./Ms.] [name of attorney]’s view of the evidence or of 

what [he/she] anticipates the evidence will be, but isn’t itself evidence. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 2.4 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 17 of

132
18 

PROPOSED JURY INSTRUCTION NO. 8 

 (Judicial Notice) 

The rules of evidence allow me to accept facts that no one can 

reasonably dispute. The law calls this “judicial notice.” I’ve accepted [state 

the fact that the court has judicially noticed] as proved even though no one 

introduced evidence to prove it. You must accept it as true for this case. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 2.5 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 18 of

132
19 

PROPOSED JURY INSTRUCTION NO. 9 

 (Use of Interrogatories) 

[You’ll now hear/You’ve heard] answers that [name of party] gave in 

response to written questions the other side submitted. The questions are 

called “interrogatories.” Before the trial, [name of party] gave the answers in 

writing while under oath. 

You must consider [name of party]’s answers to as though [name of 

party] gave the answers on the witness stand. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 2.6 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 19 of

132
20 

PROPOSED JURY INSTRUCTION NO. 10 

 (Introduction – Court’s Instructions to the Jury) 

Members of the jury: 

It’s my duty to instruct you on the rules of law that you must use in 

deciding this case. 

When I have finished you will go to the jury room and begin your 

discussions, sometimes called deliberations. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.1 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 20 of

132
21 

PROPOSED JURY INSTRUCTION NO. 11 

 (Duty to Follow Instructions – 

Corporate Party Involved) 

Your decision must be based only on the evidence presented here. 

You must not be influenced in any way by either sympathy for or prejudice 

against anyone. 

You must follow the law as I explain it – even if you do not agree with 

the law – and you must follow all of my instructions as a whole. You must 

not single out or disregard any of the instructions on the law. 

The fact that a corporation is involved as a party must not affect your 

decision in any way. A corporation and all other persons stand equal before 

the law and must be dealt with as equals in a court of justice. When a 

corporation is involved, of course, it may act only through people as its 

employees; and, in general, a corporation is responsible under the law for 

the acts and statements of its employees that are made within the scope of 

their duties as employees of the company. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.2.2 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 21 of

132
22 

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 22 of

132
23 

PROPOSED JURY INSTRUCTION NO. 12 

 (Consideration of Direct and Circumstantial Evidence; 

Argument of Counsel; Comments by the Court) 

As I said before, you must consider only the evidence that I have 

admitted in the case. Evidence includes the testimony of witnesses and the 

exhibits admitted. But, anything the lawyers say is not evidence and isn’t 

binding on you. 

You shouldn’t assume from anything I’ve said that I have any opinion 

about any factual issue in this case. Except for my instructions to you on the 

law, you should disregard anything I may have said during the trial in 

arriving at your own decision about the facts. 

Your own recollection and interpretation of the evidence is what 

matters. 

In considering the evidence you may use reasoning and common 

sense to make deductions and reach conclusions. You shouldn’t be 

concerned about whether the evidence is direct or circumstantial. 

“Direct evidence” is the testimony of a person who asserts that he or 

she has actual knowledge of a fact, such as an eyewitness. 

“Circumstantial evidence” is proof of a chain of facts and 

circumstances that tend to prove or disprove a fact. There’s no legal 

difference in the weight you may give to either direct or circumstantial 

evidence. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 23 of

132
24 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.3 (2020) 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 24 of

132
25 

PROPOSED JURY INSTRUCTION NO. 13 

 (Credibility of Witnesses) 

When I say you must consider all the evidence, I don’t mean that you 

must accept all the evidence as true or accurate. You should decide 

whether you believe what each witness had to say, and how important that 

testimony was. In making that decision you may believe or disbelieve any 

witness, in whole or in part. The number of witnesses testifying concerning 

a particular point doesn’t necessarily matter. 

To decide whether you believe any witness I suggest that you ask 

yourself a few questions: 

1. Did the witness impress you as one who was telling the 

truth? 

2. Did the witness have any particular reason not to tell the 

truth? 

3. Did the witness have a personal interest in the outcome of 

the case? 

4. Did the witness seem to have a good memory? 

5. Did the witness have the opportunity and ability to 

accurately observe the things he or she testified about? 

6. Did the witness appear to understand the questions 

clearly and answer them directly? 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 25 of

132
26 

7. Did the witness’s testimony differ from other testimony or 

other evidence? 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.4 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 26 of

132
27 

PROPOSED JURY INSTRUCTION NO. 14 

(Impeachment of Witnesses Because of Inconsistent Statements) 

You should also ask yourself whether there was evidence that a 

witness testified falsely about an important fact. And ask whether there was 

evidence that at some other time a witness said or did something, or didn’t 

say or do something, that was different from the testimony the witness 

gave during this trial. 

But keep in mind that a simple mistake doesn’t mean a witness wasn’t 

telling the truth as he or she remembers it. People naturally tend to forget 

some things or remember them inaccurately. So, if a witness misstated 

something, you must decide whether it was because of an innocent lapse in 

memory or an intentional deception. The significance of your decision may 

depend on whether the misstatement is about an important fact or about 

an unimportant detail. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.5.1 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 27 of

132
28 

PROPOSED JURY INSTRUCTION NO. 15 

 (Impeachment of Witnesses Because of Inconsistent 

Statements or Felony Conviction) 

You should also ask yourself whether there was evidence that a 

witness testified falsely about an important fact. And ask whether there was 

evidence that at some other time a witness said or did something, or didn’t 

say or do something, that was different from the testimony the witness 

gave during this trial. 

To decide whether you believe a witness, you may consider the fact 

that the witness has been convicted of a felony or a crime involving 

dishonesty or a false statement. 

But keep in mind that a simple mistake doesn’t mean a witness wasn’t 

telling the truth as he or she remembers it. People naturally tend to forget 

some things or remember them inaccurately. So, if a witness misstated 

something, you must decide whether it was because of an innocent lapse in 

memory or an intentional deception. The significance of your decision may 

depend on whether the misstatement is about an important fact or about 

an unimportant detail. 

DEFENDANTS’ OBJECTION(S): This instruction is likely irrelevant because the 

parties did not exchange any discovery regarding any witness having been 

convicted of a felony. Sec. & Exch. Comm'n v. Complete Bus. Sols. Group, Inc., 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 28 of

132
29 

608 F. Supp. 3d 1231, 1248 (S.D. Fla. 2022) (“not entitled to a jury instruction 

on an issue that is not before the jury”). 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.5.2 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 29 of

132
30 

PROPOSED JURY INSTRUCTION NO. 16 

 (Responsibility for Proof – Plaintiff’s Claims – 

Preponderance of the Evidence) 

In this case it is the responsibility of the [Plaintiff] [party bringing any 

claim]Plaintiffs to prove every essential part of [his/her/its]their claim[s] by a 

“preponderance of the evidence.” This is sometimes called the “burden of 

proof” or the “burden of persuasion.” 

A “preponderance of the evidence” simply means an amount of 

evidence that is enough to persuade you that [the Plaintiff’s’] [the party’s]

claim is more likely true than not true. 

If the proof fails to establish any essential part of a claim or 

contention by a preponderance of the evidence, you should find against 

the [Plaintiff] [party making that claim or contention]s. 

[When more than one claim is involved, you should consider each 

claim separately.] 

In deciding whether any fact has been proved by a preponderance of 

the evidence, you may consider the testimony of all of the witnesses, 

regardless of who may have called them, and all of the exhibits received in 

evidence, regardless of who may have produced them. 

If the proof fails to establish any essential part of [the Plaintiff’s’] [a 

party’s] claim[s] by a preponderance of the evidence, you should find for 

the [Defendant] [Counter-Defendant, Cross-Claim Defendant]s as to that 

claim. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 30 of

132
31 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.7.1 (2020) 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 31 of

132
32 

3.7.2 Responsibility for Proof – Affirmative Defense 

Preponderance of the Evidence

In this case, the Defendants assert the affirmative defenses of: 

1. Plaintiff was paid for all hours worked in accordance with 

applicable statutes. 

2. The action and/or the damages claimed in this action are 

barred by res judicata, waiver, estoppel (collateral or otherwise), laches, 

satisfaction, release or agreement. 

3. Plaintiff is not entitled to liquidated damages because 

Defendants did not willfully or otherwise violate the law; and, if any 

violation is established, Defendants had a good faith belief that they were 

in compliance with the law. 

 4. Plaintiff’s claims are barred in whole or in part due to Plaintiff’s 

failure to file suit within the applicable statute of limitations period. 

 5. The amounts owed, if any, are de minimis and may be cured. 

 6. The number of hours claimed by Plaintiff should be reduced, 

and Plaintiff’s claims should be denied, due to Plaintiff’s unclean hands. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 32 of

132
33 

 When more than one affirmative defense is involved, you should 

consider 

each one separately 

Even if the Plaintiff proves his claim(s) by a preponderance of the 

evidence, the Defendants can prevail in this case if they prove an affirmative 

defense by a preponderance of the evidence. 

I caution you that the Defendants do not have to disprove the 

Plaintiffs’ claim, but if the Defendants raise an affirmative defense, the only 

way they can prevail on that specific defense is if they prove that defense 

by a preponderance of the evidence. 

 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.7.2 (2022) 

 

ANNOTATIONS AND COMMENTS 

No annotations associated with this instruction. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 33 of

132
34 

PROPOSED JURY INSTRUCTION NO. 17 

(Duty to Deliberate When Only the Plaintiff Claims Damages) 

 

Of course, the fact that I have given you instructions concerning the 

issue of Plaintiff’s damages should not be interpreted in any way as an 

indication that I believe that the Plaintiff should, or should not, prevail in 

this case. 

Your verdict must be unanimous – in other words, you must all agree. 

Your deliberations are secret, and you’ll never have to explain your verdict 

to anyone. 

Each of you must decide the case for yourself, but only after fully 

considering the evidence with the other jurors. So you must discuss the 

case with one another and try to reach an agreement. While you’re 

discussing the case, don’t hesitate to reexamine your own opinion and 

change your mind if you become convinced that you were wrong. But don’t 

give up your honest beliefs just because others think differently or because 

you simply want to get the case over with. 

Remember that, in a very real way, you’re judges – judges of the facts. 

Your only interest is to seek the truth from the evidence in the case. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.8.1 (2020) 

 

GIVEN ☐

REFUSED ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 34 of

132
35 

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 35 of

132
36 

PROPOSED JURY INSTRUCTION NO. 18 

 (Election of Foreperson Explanation of Verdict Form[s]) 

When you get to the jury room, choose one of your members to act 

as foreperson. The foreperson will direct your deliberations and speak for 

you in court. 

A verdict form has been prepared for your convenience. 

[Explain verdict] 

Take the verdict form with you to the jury room. When you’ve all 

agreed on the verdict, your foreperson must fill in the form, sign it and date 

it. Then you’ll return it to the courtroom. 

If you wish to communicate with me at any time, please write down 

your message or question and give it to the court security officer. The court 

security officer will bring it to me and I’ll respond as promptly as possible – 

either in writing or by talking to you in the courtroom. Please understand 

that I may have to talk to the lawyers and the parties before I respond to 

your question or message, so you should be patient as you await my 

response. But I caution you not to tell me how many jurors have voted one 

way or the other at that time. That type of information should remain in the 

jury room and not be shared with anyone, including me, in your note or 

question. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 3.9 (2020) 

GIVEN ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 36 of

132
37 

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 37 of

132
38 

PROPOSED JURY INSTRUCTION NO. 19 

 (Fair Labor Standards Act – Statutory Statement of Policy (29 U.S.C. § 202)) 

The FLSA was enacted to remedy unfair methods of competition and 

to eliminate labor conditions that are detrimental to the maintenance of a 

minimum standard of wellbeing for workers in the economy. 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instructions for FLSA Claims, and this language is not included in it,. itThe 

proposed instruction is superfluous, it does not relate to any specific issue 

in this case not covered by other instructions, it will not assist the jury in the 

determinations it must make in this case, may confuse the jury, and it is 

prejudicial to Defendants. Sec. & Exch. Comm'n v. Complete Bus. Sols. 

Group, Inc., 608 F. Supp. 3d 1231, 1248 (S.D. Fla. 2022) (“not entitled to a 

jury instruction on an issue that is not before the jury”). United States v. 

Green, 2016 WL 3866567, at *4 (S.D. Ga. July 13, 2016) (“these instructions 

were superfluous as the Court provided the proper warnings to the jury 

pursuant to the Eleventh Circuit Pattern Jury Instructions”). In addition, the 

proposed instruction is an incomplete recitation of 29 U.S.C. §202. The 

purpose of the FLSA is not a disputed issue in this case.

AUTHORITY: 29 U.S.C. § 202(a), (a)(3), (b) 

GIVEN ☐

REFUSED ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 38 of

132
39 

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 39 of

132
40 

PROPOSED JURY INSTRUCTION NO. 20 

 (Fair Labor Standards Act – 29 U.S.C. §§ 201 et seq.) 

In this case, [name of plaintiff]Erik Chavez and Leonel Diaz claims that 

[name of defendant]Grill Enterprises, LLC and Ruben Sierra did not pay Erik 

Chavez and Leonel Diaz [name of plaintiff] the [minimum wage/overtime 

pays] required by the federal Fair Labor Standards Act, also known as the 

FLSA.

To succeed on [his/her]their claim against [name of defendant]Grill 

Enterprises, LLC and Ruben Sierra, Erik Chavez and Leonel Diaz must prove 

by a preponderance of the evidence that Grill Enterprises, LLC failed to pay 

each of them the minimum wages required by the law. , [name of plaintiff] 

must prove each of the following facts by a preponderance of the evidence: 

To succeed on their claim against Grill Enterprises, LLC and Ruben 

Sierra, Erik Chavez and Leonel Diaz must prove by a preponderance of the 

evidence: 

First: Erik Chavez and Leonel Diaz were each employees of Grill 

Enterprises, LLC and Ruben Sierra; and 

Second: Grill Enterprises, LLC and Ruben Sierra failed to pay Erik 

Chavez and Leonel Diaz the minimum wages required by law. 

In the verdict form that I will explain in a moment, you will be asked 

to answer questions about these factual issues. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 40 of

132
41 

Minimum wage claim: The minimum wage required by the FLSA 

during the period involved in this case was $7.25 per hour. To determine 

whether the employers have paid the minimum wage, each is entitled to a 

credit for the reasonable costs of furnishing certain non-cash items to 

Plaintiffs, such as meals for the employee’s benefit, and the employee 

voluntarily accepts them. 

The amount of damages is the difference between the amount each 

Erik Chavez and Leonel Diaz should have been paid and the amount each 

was actually paid. 

• Erik Chavez is entitled to recover lost wages from the date of 

your verdict back to no more than two years before he filed this 

lawsuit [June 23, 2020] unless you find that the employer(s) 

either knew or showed reckless disregard for whether the FLSA 

prohibited their conduct. If you find that the employer(s) knew 

or showed reckless disregard for whether the FLSA prohibited 

their conduct, then Erik Chavez is entitled to recover lost wages 

from date of your verdict back to no more than three years 

before he filed this lawsuit. 

• Lenoel Diaz is entitled to recover lost wages from the date of 

your verdict back to no more than March 10, 2019. 

[Inadequate Records: The law requires employers to keep records of how 

many hours their employees work and the amount they are paid. In this case, 

Erik Chavez and Leonel Diaz claims that Grill Enterprises, LLC and Ruben 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 41 of

132
42 

Sierra failed to keep and maintain adequate records of their hours and pay. 

Erik Chavez and Leonel Diaz also claim that Grill Enterprises, LLC’s and Ruben 

Sierra’s failure to keep and maintain adequate records has made it difficult 

for Erik Chavez and Leonel Diaz to prove the exact amount of their claim. If 

you find that Grill Enterprises, LLC and Ruben Sierra failed to keep adequate 

time and pay records for Erik Chavez and Leonel Diaz and that Erik Chavez 

and Leonel Diaz performed work for which they should have been paid, Erik 

Chavez and Leonel Diaz may recover a reasonable estimation of the amount 

of their damages. But to recover this amount Erik Chavez and Leonel Diaz 

must prove by a preponderance of the evidence a reasonable estimation of 

the amount and extent of the work for which they seek pay.] 

An individual can also be liable for a plaintiff’s damages under the 

FLSA if the individual played a substantial role in causing the FLSA violation. 

To determine whether the individual is liable, you must consider all the 

relevant circumstances rather than any one technical factor. Erik Chavez and 

Leonel Diaz must prove that Ruben Sierra had operational control over Grill 

Enterprises, LLC. In other words, Ruben Sierra must have controlled 

significant aspects of Grill Enterprise, LLC’s day-to-day functions, including 

employee compensation, or had direct responsibility for the supervision of 

Plaintiffs. 

First: [Name of plaintiff] was an employee of [name of defendant] and was 

[engaged in commerce or in the production of goods for commerce] or 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 42 of

132
43 

[employed by an enterprise engaged in commerce or in the production of 

goods for commerce]; and 

[DEFENDANTS’ OBJECTION; Defendants do not believe there is an issue of 

inadequate recordkeeping, as they maintained the records required by the 

FLSA and so object to the inclusion of the inadequate recordkeeping 

portion of this standard instruction as irrelevant and confusing. Sec. & Exch. 

Comm'n v. Complete Bus. Sols. Group, Inc., 608 F. Supp. 3d 1231, 1248 (S.D. 

Fla. 2022) (“not entitled to a jury instruction on an issue that is not before 

the jury”). Moreover, the evidence in the case is that Defendants complied 

with the recordkeeping requirements imposed by 29 C.F.R. §516.2, making 

the recordkeeping portion of the instruction unnecessary.] 

Second: [Name of defendant] failed to pay [name of plaintiff] the 

[minimum wage required by law. 

[In the verdict form that I will explain in a moment, you will be asked to 

answer questions about these factual issues.] 

For the first element, [Plaintiffs] must each prove by a preponderance of the 

evidence that [they] were employees [engaged in commerce or in the 

production of goods for commerce or that they were employed by an 

enterprise engaged in commerce or in the production of goods for 

commerce]. 

The term “commerce” has a very broad meaning and includes any trade, 

transportation, transmission, or communication between any place within a 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 43 of

132
44 

state and any place outside that state. [Plaintiffs] were engaged in the 

“production of goods” if [they] were employed in handling, or transporting 

goods or materials, or in any other manner worked on goods or materials, 

or any closely related process or occupation directly essential to the 

production of goods. [An employer is an “enterprise engaged in commerce 

or the production of goods for commerce” if it has employees engaged in 

commerce or the production of commercial goods for commerce and has 

annual gross sales of at least $500,000.] An employer is “engaged in 

commerce” whenever there is evidence reflecting that two or more of its 

employees recurrently handle goods or materials that have previously 

moved through interstate commerce. “The most essential ‘materials’ 

required to operate a typical restaurant like this one have undoubtedly 

traveled in interstate or foreign commerce.” 

If you find that Plaintiffs have not proven by a preponderance of the 

evidence that Defendants were engaged in commerce, you will not decide 

the issue of Plaintiffs’ damages. But if you find that Plaintiffs have proven 

that Defendants were engaged in commerce, you must decide the issue of 

Plaintiffs’ damages. 

The amount of damages is the difference between the amount Plaintiffs 

should have been paid and they amount they were actually paid. Plaintiffs 

are entitled to recover lost wages from the date of your verdict back to no 

more than two years before they filed the lawsuit (June 23, 2020) – unless 

you find the employer either knew or showed reckless disregard for 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 44 of

132
45 

whether the FLSA prohibited its conduct. If you find that the employer knew 

or showed reckless disregard for whether the FLSA prohibits its conduct, 

then Plaintiffs are entitled to recover lost wages from the date of your 

verdict back to no more than three years before they filed this lawsuit. 

 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit’s pattern jury instruction 

should be modified to address Plaintiff’s claim in this case of enterprise 

coverage and the additional language is superfluous, it does not relate to 

any specific issue in this case not covered by other instructions, it will not 

assist the jury in the determinations it must make in this case, may confuse 

the jury, and it is prejudicial to Defendants. Plaintiffs’ proposed instruction 

also omits the paragraph of the pattern jury instruction regarding damages. 

 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 4.14 (20202022); 

Diaz v. Jaguar Rest. Grp., LLC, 649 F. Supp. 2d 1343, 1347 (S.D. Fla. 2009) citing 

29 C.F.R. § 779.238; . Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 

1292, 1298 (11th Cir. 2011); Thorne v. All Restoration Servs., Inc., 448 F.3d 

1264, 1265- 66 (11th Cir. 2006); Polycarpe v. E&S Landscaping Serv., Inc., 616 

F.3d 1217, 1220 (11th Cir. 2010)(citing 29 U.S.C. § 203(s)(1)(A)); 29 U.S.C. 

§203(s)(1)(A)(i)-(ii)(emphasis added))..

GIVEN ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 45 of

132
46 

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 46 of

132
47 

PROPOSED JURY INSTRUCTION NO. 21 

(Individual Liability) 

The Fair Labor Standards Act contemplates at least some individual 

liability, and it is consistent with Congress's intent to impose liability upon 

those who control a corporation's financial affairs and can cause the 

corporation to compensate, or not to compensate, employees in 

accordance with federal law. An individual's ownership interest in the 

corporation and control over the corporation's day-to-day functions are 

relevant to this inquiry because they are indicative of the owner's role in 

causing the violation, if any. 

“[A] corporate officer with operational control of a corporation's 

covered enterprise is an employer along with the corporation, jointly and 

severally liable under the FLSA for unpaid wages.” This is not to say that 

individual liability depends upon an individual’s status as a corporate 

officers. The FLSA provides an expansively broad definition of “employer” 

and the determination of whether an individual fits that definition “does 

not depend on technical or isolated factors but rather on the circumstances 

of the whole activity.” Individuals may be considered “employers” under the 

FLSA when they have significant ownership interests, or operational control 

over the company, such that he could cause the company to violate the FLSA. 

The individual need not have exclusive control over the company to be 

considered an employer under the FLSA; rather, he need only have control 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 47 of

132
48 

over “significant aspects” of the company’s operations. The term employer 

“must be liberally construed to effectuate Congress’ remedial intent.” 

An individual, like Ruben Sierra in this case, could be personally liable 

for FLSA violations if Plaintiffs have proven by a preponderance of the 

evidence that Ruben Sierra was their “employer” as defined by the FLSA. To 

determine whether Ruben Sierra is Plaintiffs’ “employer,” you must examine 

the “economic reality of the relationship between the parties.” Factors you 

should considered include “whether [Ruben Sierra] (1) had the power to 

hire and fire employees, (2) supervised and controlled employee work 

schedules or conditions of employment, (3) determined the rate and 

method of payment, and (4) maintained employment records.” 

If you find that Plaintiffs have not proven by a preponderance of the 

evidence that Ruben Sierra was Plaintiffs’ “employer” and liable for the 

alleged FLSA violations in this case, he cannot be personally liable for 

Plaintiffs’ alleged damages in this case. If you find that Plaintiffs have 

proven by a preponderance of the evidence that Ruben Sierra was Plaintiffs’ 

“employer” and liable for the alleged FLSA violations in this case, he can be 

personally liable, along with the corporate liability of Grill Enterprises, for 

Plaintiffs’ alleged damages in this case. 

[DEFENDANTS’ OBJECTION(S): Plaintiffs’ proposed jury instruction is 

not an accurate reflection of the law and does not include the four (4) factors 

that the jury must consider to determine whether an individual is an 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 48 of

132
49 

“employer.”The March 2022 Civil Pattern Jury Instruction 4.14 covers the 

issue of individual liability. The proposed instruction is duplicative of and 

inconsistent with the standard instruction, and there is no need to deviate 

from the pattern instruction. United States v. Green, 2016 WL 3866567, at *4 

(S.D. Ga. July 13, 2016) (“these instructions were superfluous as the Court 

provided the proper warnings to the jury pursuant to the Eleventh Circuit 

Pattern Jury Instructions”). If the instruction is to be given, it should include 

the other pertinent information necessary for the jury to decide the issue, 

including whether Mr. Sierra had “operational control of significant aspects 

of [Grill Enterprise, LLC’s] day-to-day functions, including compensation of 

employees or other matters ‘in relation to an employee.’” Patel v. Wargo, 803 

F.2d 632, 638 (11th Cir. 1986).] 

AUTHORITY: Patel v. Wargo, 803 F.2d 632, 637–38 (11th Cir.1986) 

(quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir.1983)); Lamonica 

v. Safe Hurricane Shutters, 2013 U.S. App. LEXIS 4599 (11th Cir. 2013); 

Alvarez Perez v. Sanford–Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 

(11th Cir.2008) (quoting Hodgson v. Griffin & Brand of McAllen, Inc., 471 

F.2d 235, 237 (5th Cir.1973)) (internal quotation marks omitted); Donovan v. 

Agnew, 712 F.2d 1509, 1514 (1st Cir. 1983); Reich v. Circle C. Invs., Inc., 998 F 

2d 324, 329 (5th Cir. 1993). 

GIVEN ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 49 of

132
50 

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 50 of

132
51 

PROPOSED JURY INSTRUCTION NO. 22 

(Minimum Wage Claim) 

In accordance with the FLSA and the FMWA, employers are required 

to pay their employees a minimum hourly wage for every hour they work. 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instruction for the FLSA (4.14)s and this language is not included in it, it is 

superfluous, it does not relate to any specific issue in this case not covered 

by other instructions, it will not assist the jury in the determinations it must 

make in this case, may confuse the jury, and it is prejudicial to Defendants. 

United States v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 13, 2016) (“these 

instructions were superfluous as the Court provided the proper warnings to 

the jury pursuant to the Eleventh Circuit Pattern Jury Instructions”). Further, 

as proposed, the instruction does not identify permitted deductions such as 

for payment of taxes and withholdings or the “tip credit” wage and so also is 

incomplete as stated. Ultimately, there is no dispute that employers are 

required to pay a minimum wage. Exch. Comm'n v. Complete Bus. Sols. 

Group, Inc., 608 F. Supp. 3d 1231, 1248 (S.D. Fla. 2022) (“not entitled to a jury 

instruction on an issue that is not before the jury”). 

AUTHORITY: 29 U.S.C. § 206(a); Florida Constitution Article X, § 24(c); 

Fla. Stat. §448.110. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 51 of

132
52 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 52 of

132
53 

PROPOSED JURY INSTRUCTION NO. 23 

(Applicable Minimum Wage) 

Under those minimum wage laws, in this jurisdiction, the required 

minimum hourly wage required to be paid to eligible employees was as 

follows: 

a. $8.10 in 2017; 

b. $8.25 in 2018; 

c. $8.46 in 2019; 

d. $8.56 in 2020. 

However, in this case, it is undisputed that the Plaintiffs were “tipped 

employees” in that they “customarily and regularly received” a certain 

amount every month from in tips or gratuities directly or indirectly from 

customers of the restaurant where they worked. Accordingly, in calculating 

the minimum amounts that employer must pay to eligible “tipped 

employees”, the minimum wage laws recognize that under certain 

circumstancesunder certain circumstances, employers of “tipped 

employees” may may include a limited part part (but not all) of such tips as 

wage payments for purposes of meeting the minimum wage requirements. 

This is called taking a “tip credit”. However, an employer may only take the 

“tip credit” under certain circumstances which will be explained shortly.

 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instructions and this language is not included in it and certain language in it 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 53 of

132
54 

is superfluous, it does not relate to any specific issue in this case not covered 

by other instructions, will not assist the jury in the determinations it must 

make in this case, may confuse the jury, and it is prejudicial to Defendants. 

United States v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 13, 2016) (“these 

instructions were superfluous as the Court provided the proper warnings to 

the jury pursuant to the Eleventh Circuit Pattern Jury Instructions”). 

Defendant has made minor modifications to this proposed instruction and it 

is otherwise agreeable.In addition, the federal minimum wage remains at 

$7.25/hour, making this instruction inaccurate as a matter of law for Plaintiffs’ 

FLSA claim. 29 U.S.C. §206(a)(1)(C). Malivuk v. Ameripark, LLC, 694 Fed. Appx. 

705, 706 (11th Cir. 2017) (citing 29 U.S.C. § 203(m)); and P&k Rest. Enter., LLC 

v. Jackson, 758 Fed. Appx. 844, 847 (11th Cir. 2019) (“The federal minimum 

wage is $7.25 per hour.”) See also Parker Drilling Mgt. Svc., Ltd. v. Netwon, 

139 S.Ct. 1881 (2019). The instruction is confusing and not accurate as 

drafted. U.S. v. Mayweather, 991 F.3d 1163, 1183 (11th Cir. 2021) (“In 

particular, a district court may refuse to give a confusing jury instruction, U.S. 

v. Rodriguez-Suarez, 856 F.2d 135, at 140 (11 Cir. 1988); see U.S. v. Silverman, 

745 F.2d 1386, 1396 (11th Cir. 1984), and ‘the charge as a whole [must] 

accurately reflect[ ] the law in the context of a case's facts,’ U.S. v. Isnadin, 

742 F.3d 1278, 1296 (11th Cir. 2014.)” 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 54 of

132
55 

AUTHORITY: 29 U.S.C. § 203(m)(2). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 55 of

132
56 

PROPOSED JURY INSTRUCTION NO. 24 

(Reduced Minimum Wage for “Tipped Employees”) 

The maximum amount of “tip credit” which an employer may take is 

$3.02 for each hour worked by a “tipped employee”. Thus, if an employer 

meets the requirements for taking a tip credit, they would only have to pay 

a reduced hourly wage which accounts for the “tip credit”. For the period 

covered by this lawsuit, the required reduced minimum hourly wage 

required to be paid by the employer to eligible employees would be $4.23 

per hour ($7.25 less $3.02). 

as follows, but again only if the employer complies with the 

requirements for taking a “tip credit”: 

a. $5.08 in 2017 ($8.10 less $3.02); 

b. $5.23 in 2018 ($8.25 less $3.02); 

c. $5.44 in 2019 ($8.46 less $3.02); 

d. $5.54 in 2020 ($8.56 less $3.02). 

 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern 

jury instructions and this language is not included in it and certain language 

in it is superfluous, it does not relate to any specific issue in this case not 

covered by other instructions, will not assist the jury in the determinations it 

must make in this case, may confuse the jury, and it is prejudicial to 

Defendants. U.S. v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 13, 2016) 

(“these instructions were superfluous as the Court provided the proper 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 56 of

132
57 

warnings to the jury pursuant to the Eleventh Circuit Pattern Jury 

Instructions”). In addition, the federal minimum wage remains at $7.25/hour, 

making this instruction inaccurate as a matter of law for the Plaintiffs’ FLSA 

claim. 29 U.S.C. §206(a)(1)(C). Malivuk v. Ameripark, LLC, 694 Fed. Appx. 705, 

706 (11th Cir. 2017) (citing 29 U.S.C. § 203(m)); and P&k Rest. Enter., LLC v. 

Jackson, 758 Fed. Appx. 844, 847 (11th Cir. 2019) (“The federal minimum 

wage is $7.25 per hour.”) See also Parker Drilling Mgt. Svc., Ltd. v. Netwon, 

139 S.Ct. 1881 (2019). The FLSA allows employers to pay a direct hourly wage 

of $2.13 per hour plus tips. Nail v. Shipp, 2019 WL 3719397, at *3 (S.D. Ala. 

Aug. 6, 2019) (“The maximum tip credit against minimum wage is $5.12/hour 

and the minimum cash wage is $2.13/hour (to total the federal minimum 

wage rate of $7.25/hour)).” Put another way, “§ 203(m) authorizes the 

employer to pay the employee (1) an hourly wage of $2.13 plus (2) an 

additional amount in tips that brings the total wage up to the federal 

minimum wage of $7.25 an hour. 29 U.S.C. § 203(m).” Malivuk, 694 Fed. Appx. 

at 706; and P&k Rest. Enter., LLC, 758 Fed. Appx. at 847. 

Defendant has made minor modifications to this proposed instruction and it 

is otherwise agreeable. 

AUTHORITY: 29 U.S.C. § 203(m)(2)(A); Florida Constitution Article X, § 

24(c); Fla. Stat. §448.110. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 57 of

132
58 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 58 of

132
59 

PROPOSED JURY INSTRUCTION NO. 25 

(Tips Belong to the Tipped Employees) 

In this regard, it is important to understand that the tips received by 

“tipped employees” belong entirely to said “tipped employee”; an employer 

may not keep tips received by its employees for any purposes, regardless of 

whether the employer takes a tip credit. 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern 

jury instructions and this language is not included in it and certain language 

in it is superfluous, it does not relate to any specific issue in the case not 

covered by other instructions, it will not assist the jury in the determinations 

it must make in this case, it may confuse the jury, and it is prejudicial to 

Defendants. U.S. v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 13, 2016) 

(“these instructions were superfluous as the Court provided the proper 

warnings to the jury pursuant to the Eleventh Circuit Pattern Jury 

Instructions”). Plaintiffs did not allege in the operative Complaint a claim for 

tip confiscation under 29 U.S.C. §203(m)(2)(B) and instead only alleged a 

claim for unpaid or underpaid minimum wages. Compare Rodriguez v. City 

Buffet Mongolian Barbeque, Inc., 2020 WL 2476043 (M.D. Fla. Apr. 22, 2020) 

with [ECF No. 7]. Furthermore, prior to March 2018, the FLSA did not even 

permit the recovery of minimum wages and tips. Groeschel v. Casey Key Fish 

House, Inc., 2019 WL 1093450, at *4 (M.D. Fla. Feb. 27, 2019). 

AUTHORITY: 29 U.S.C. § 203(m)(2)(B); 29 CFR 531.52(b). 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 59 of

132
60 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 60 of

132
61 

PROPOSED JURY INSTRUCTION NO. 26 

(Tip Credit) 

Notwithstanding the proscription that an employer may not keep any 

portion of an employee’s tips for any purpose, the FLSA provides that under 

certain circumstances, employers of “tipped employees” may include a 

maximum of $3.02 per hour of such employees’ tips as a wage payment “tip 

credit”. 

 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern 

jury instructions and this language is not included in it and certain language 

in it is superfluous, it does not relate to any specific issue in the case not 

covered by other instructions, it will not assist the jury in the determinations 

it must make in this case, it may confuse the jury, and it is prejudicial to 

Defendants. U.S. v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 13, 2016) 

(“these instructions were superfluous as the Court provided the proper 

warnings to the jury pursuant to the Eleventh Circuit Pattern Jury 

Instructions”). The FLSA allows employers to pay a direct hourly wage of 

$2.13 per hour plus tips. Nail v. Shipp, 2019 WL 3719397, at *3 (S.D. Ala. Aug. 

6, 2019) (“The maximum tip credit against minimum wage is $5.12/hour and 

the minimum cash wage is $2.13/hour (to total the federal minimum wage 

rate of $7.25/hour)).” Put another way, “§ 203(m) authorizes the employer to 

pay the employee (1) an hourly wage of $2.13 plus (2) an additional amount 

in tips that brings the total wage up to the federal minimum wage of $7.25 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 61 of

132
62 

an hour. 29 U.S.C. § 203(m).” Malivuk, 694 Fed. Appx. at 706; and P&k Rest. 

Enter., LLC, 758 Fed. Appx. at 847. 

AUTHORITY: 29 U.S.C. § 203(m)(2)(A); Florida Constitution Article X, § 

24(c); Fla. Stat. §448.110. 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 62 of

132
63 

PROPOSED JURY INSTRUCTION NO. 27 

(Tip Credit Conditions) 

In order for the employer to lawfully take the $3.02 per hour “tip credit”, 

the each of the following must be true: 

(a) The employer must have informed the “tipped employee” that 

they will take such a “tip credit” and the amount of the “tip credit” 

they would take; 

(b) The employer must actually pay the “tipped employee” the 

reduced hourly wage described previously (i.e.: the difference 

between the established minimum hourly wage and the “tip credit” 

employer informed he would take); and 

(c) “all tips received by such tipped employee must be retained (kept) 

by the employee...”. 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instructions and this language is not included in it and certain language in 

it is superfluous, it does not relate to any specific issue in the case not 

covered by other instructions, it will not assist the jury in the determinations 

it must make in this case, it may confuse the jury, and it is prejudicial to 

Defendants. U.S. v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 13, 2016) 

(“these instructions were superfluous as the Court provided the proper 

warnings to the jury pursuant to the Eleventh Circuit Pattern Jury 

Instructions”). The FLSA allows employers to pay a direct hourly wage of 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 63 of

132
64 

$2.13 per hour plus tips. Nail v. Shipp, 2019 WL 3719397, at *3 (S.D. Ala. 

Aug. 6, 2019) (“The maximum tip credit against minimum wage is 

$5.12/hour and the minimum cash wage is $2.13/hour (to total the federal 

minimum wage rate of $7.25/hour)).” Put another way, “§ 203(m) authorizes 

the employer to pay the employee (1) an hourly wage of $2.13 plus (2) an 

additional amount in tips that brings the total wage up to the federal 

minimum wage of $7.25 an hour. 29 U.S.C. § 203(m).” Malivuk, 694 Fed. 

Appx. at 706; and P&k Rest. Enter., LLC, 758 Fed. Appx. at 847. U.S. v. 

Mayweather, 991 F.3d 1163, 1183 (11th Cir. 2021) (“In particular, a district 

court may refuse to give a confusing jury instruction, U.S. v. RodriguezSuarez, 856 F.2d 135, at 140 (11 Cir. 1988); see U.S. v. Silverman, 745 F.2d 

1386, 1396 (11th Cir. 1984), and ‘the charge as a whole [must] accurately 

reflect[ ] the law in the context of a case's facts,’ U.S. v. Isnadin, 742 F.3d 

1278, 1296 (11th Cir. 2014.)” 

AUTHORITY: 29 U.S.C. § 203(m)(2). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 64 of

132
65 

PROPOSED JURY INSTRUCTION NO. 28 

(Tip Pool) 

When an employer that takes a “tip credit” and actually pays the “tipped 

employee” the “reduced hourly wage”: 

1. The employer may require the “tipped employee” for whom the 

employer takes a tip credit to contribute tips to a tip pool, but only if 

the tip pool is limited to other employees employees who customarily 

and regularly customarily and regularly receive more than $30 a 

month in tips; and 

2. The employer must notify its employees of any required tip pool 

contribution amount, and may not retain any of the employees' tips 

for any other purpose. 

3.2. However, an employer may not participate in such a tip pool 

and may not include managers and supervisors in the pool. 

In this case, Plaintiffs allege that Cesar Pacheco was not an employee 

and, on some occasions, occasionally participated in the tip pool. IfPlaintiffs 

contend that if Cesar Pacheco was not an employee of Grill 

EnterprisesDefendants, the tip pool would be invalidated and Defendants 

could not take the tip credit. 

Determining whether an individual is an employee or an independent 

contractor does not depend on isolated factors; the determination is based 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 65 of

132
66 

on the “underlying economic realities” as exposed by the “circumstances of 

the whole activity.” The factors you should use as a guide are: 

(1)the nature and degree of the alleged employer'’s control as to the 

manner in which the work is to be performed; 

(2)the alleged employee'’s opportunity for profit or loss depending 

upon his managerial skill; 

(3)the alleged employee'’s investment in equipment or materials 

required for his task, or his employment of workers; 

(4)whether the service rendered requires a special skill; 

(5)the degree of permanency and duration of the working 

relationship; and 

(6)the extent to which the service rendered is an integral part of the 

alleged employer'’s business. 

 It is important to note that undocumented aliens are employees 

under the FLSA. Thus, if you find that Cesar Pacheco is an undocumented 

alien, but otherwise qualifies as an employee, he may participate in the tip 

pool without invalidating the tip pool. 

 A valid tip pooling or sharing arrangement is allowable among 

employees who customarily and regularly receive tipsmore than $30 a 

month in tips, such as waiters, waitresses, bellhops, counter personnel (who 

serve customers), bussers, and service bartenders. A valid tip pool may not 

include employees who do not customarily and regularly receivedreceive 

tips, such as dishwashers, cooks, chefs, and janitors. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 66 of

132
67 

 When an employee is employed by one employer in both a tipped 

and a non-tipped occupation, such as an employee employed both as a 

maintenance person and a waitperson, the tip credit is available only for the 

hours spent by the employee in the tipped occupation. 

 If you find that Plaintiffs have not proven by a preponderance of the 

evidence that Cesar Pacheco was not an employee, then his participation in 

the tip pool does not invalidate the tip pool. However, if you find that 

Plaintiffs have proven by a preponderance of the evidence that Cesar 

Pacheco was not an employee, then his participation in the tip pool does 

invalidate the tip pool, but only for the pay periods that Cesar Pacheco 

participated in the tip pool. 

 

 In this case, Plaintiffs also allege that Marianna Pinto was a manager 

or supervisor when, on some occasions, she participated in the tip pool. If 

Marianna Pinto was a manager or supervisor when she participated in the 

tip pool, the tip pool would be invalidated and Defendants could not take 

the tip credit. Only executive levelexecutive-level personnel must be 

excluded from the tip pool. Low-level managers and/or assistant managers 

can participate in the tip pool without invalidating it because they do not 

meet the definition of an “executive.” The term “manager” or “supervisor” 

means any employee: 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 67 of

132
68 

(1) Whose primary duty is management of the enterprise in which 

the employee is employed or of a customarily recognized 

department or subdivision thereof; 

(2) Who customarily and regularly directs the work of two or more 

other employees; and 

(3) Who has the authority to hire or fire other employees or whose 

suggestions and recommendations as to the hiring, firing, 

advancement, promotion or any other change of status of other 

employees are given particular weight. 

 If you find that Plaintiffs have not proven by a preponderance of the 

evidence that Marianna Pinto was a manager or supervisor, then her 

participation in the tip pool does not invalidate the tip pool. However, if 

you find that Plaintiffs have proven by a preponderance of the evidence 

that Marianna Pinto was a manager or supervisor, then her participation in 

the tip pool does invalidate the tip pool, but only for the pay periods that 

Marianna Pinto participated in the tip pool. 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instructions and this language is not included in it and certain language in 

it is superfluous, it does not relate to any specific issue in the case not 

covered by other instructions, it will not assist the jury in the determinations 

it must make in this case, it may confuse the jury, and it is prejudicial to 

Defendants. United States v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 68 of

132
69 

13, 2016) (“these instructions were superfluous as the Court provided the 

proper warnings to the jury pursuant to the Eleventh Circuit Pattern Jury 

Instructions”). AdditionallyIf given, this proposed instruction should instruct 

the jury on the participation in the tip pool of Cesar Pacheco (as an 

employee/ independent contractor , undocumented aliens (Cesar Pacheco) 

and assistant managers (Marianna Pinto). (Defendants’ authority is below in 

bold.) 

AUTHORITY: Rutherford Food Corp. v. McComb, 331 U.S. 722, 727, 730, 

67 S.Ct. 1473, 91 L.Ed. 1772 (1947); Freund v. Hi–Tech Satellite, Inc., 185 

Fed.Appx. 782, 783 (11th Cir. 2006); see also 29 C.F.R. § 500.20(h)(4) 

(adopting the economic realities test and the guiding factors as articulated 

by the federal courts to determine employment status under the FLSA; ); 

Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 

2013)(undocumented aliens are employees under the FLSA even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988)(undocumented aliens are employees); 29 C.F.R. 

531.52(b)(2)(manager and supervisor participation in tip pools); 29 C.F.R. 

541.100(a)(2)-(4)(executive level managers and supervisors); 29 C.F.R. 

541.101; U.S. Department of Justice, WHD Fact Sheet #15 (Amended April 

2018)(customarily and regularly receives tips and dual jobs); 29 U.S.C. § 

203(m)(2)(A); 29 CFR 531.54(c). 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 69 of

132
70 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 70 of

132
71 

PROPOSED JURY INSTRUCTION NO. 29 

(Tip Credit/Tip Pool) 

An employer that takes a tip credit against its minimum wage 

obligations is prohibited from using an employee’s tips for any reason 

other than that which is permitted by [§203(m)(2)(A) of the FLSA], namely: 

1. As a credit against its minimum wage obligations to the employee, or; 

2. In furtherance of a valid tip pool limited to employees who 

customarily and regularly receive tips. 

 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instructions and this language is not included in it and certain language in 

it is superfluous, it does not relate to any specific issue in the case not 

covered by other instructions, it will not assist the jury in the determinations 

it must make in this case, it may confuse the jury, and it is prejudicial to 

Defendants. United States v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 

13, 2016) (“these instructions were superfluous as the Court provided the 

proper warnings to the jury pursuant to the Eleventh Circuit Pattern Jury 

Instructions”). U.S. v. Mayweather, 991 F.3d 1163, 1183 (11th Cir. 2021) (“In 

particular, a district court may refuse to give a confusing jury instruction, 

U.S. v. Rodriguez-Suarez, 856 F.2d 135, at 140 (11 Cir. 1988); see U.S. v. 

Silverman, 745 F.2d 1386, 1396 (11th Cir. 1984), and ‘the charge as a whole 

[must] accurately reflect[ ] the law in the context of a case's facts,’ U.S. v. 

Isnadin, 742 F.3d 1278, 1296 (11th Cir. 2014.)” 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 71 of

132
72 

AUTHORITY: 29 U.S.C. § 203(e)©(1). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 72 of

132
73 

PROPOSED JURY INSTRUCTION NO. 30 

(Tip Credit/Tip Pool) 

An employer may exert control over an employee’s tips only temporarily 

and only for the following reasons: 

1. to distribute tips to the employee who received them; or 

2. to distribute tips to employees in a valid tip pool. 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instructions and this language is not included in it and certain language in 

it is superfluous, it does not relate to any specific issue in the case not 

covered by other instructions, it will not assist the jury in the determinations 

it must make in this case, it may confuse the jury, and it is prejudicial to 

Defendants. U.S. v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 13, 2016) 

(“these instructions were superfluous as the Court provided the proper 

warnings to the jury pursuant to the Eleventh Circuit Pattern Jury 

Instructions”). The Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to Defendants. With 

the minor modification proposed by Defendants, the instruction is 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 73 of

132
74 

otherwise agreeable.Furthermore, the proposed instruction is an inaccurate 

recitation of the law in effect at the time, as it ignores the entirety of 29 

C.F.R. §§531.52(b)(1) and 531.54(b)(2). U.S. v. Mayweather, 991 F.3d 1163, 

1183 (11th Cir. 2021) (“In particular, a district court may refuse to give a 

confusing jury instruction, U.S. v. Rodriguez-Suarez, 856 F.2d 135, at 140 (11 

Cir. 1988); see U.S. v. Silverman, 745 F.2d 1386, 1396 (11th Cir. 1984), and 

‘the charge as a whole [must] accurately reflect[ ] the law in the context of a 

case's facts,’ U.S. v. Isnadin, 742 F.3d 1278, 1296 (11th Cir. 2014.)” 

AUTHORITY: 29 U.S.C. § 203(m)(2)(B); 29 CFR 531.52(b)(1); 29 CFR 

531.54(b)(1), (2). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 74 of

132
75 

PROPOSED JURY INSTRUCTION NO. 31 

(Tax Withholding) 

Employers have an obligation to withhold the plaintiffs’ share of taxes 

from the wages paid to their employees, including from the tips they 

disburse, and to pay over the withheld amounts to the United States. 

AUTHORITY: 26 U.S.C. §§ 3102(a) (imposing on employer duty to collect 

employee’s share of FICA), 3102(b) (imposing on employer duty to pay over 

employee FICA), 3402 (imposing on employer duty to withhold income 

taxes from employee’s wages), 3403 (imposing on employer duty to pay 

over income taxes required to be withheld from employee’s wages). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 75 of

132
76 

PROPOSED JURY INSTRUCTION NO. 32 

(Tip Ownership) 

Even when an employer exerts control over a tipped employee’s tips 

for one of the reasons just mentioned, the tips remain property of the 

tipped employee; thus tips include – in addition to the cash sums presented 

by customers directly to the Plaintiffs – amounts redistributed to tipped 

employees by the employer pursuant to credit card payments by customers 

who designate amounts on their bills as tips or gratuities 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instructions and this language is not included in it and certain language in 

it is superfluous, it does not relate to any specific issue in the case not 

covered by other instructions, it will not assist the jury in the determinations 

it must make in this case, it may confuse the jury, and it is prejudicial to 

Defendants. U.S. v. Green, 2016 WL 3866567, at *4 (S.D. Ga. July 13, 2016) 

(“these instructions were superfluous as the Court provided the proper 

warnings to the jury pursuant to the Eleventh Circuit Pattern Jury 

Instructions”). Furthermore, the proposed instruction is an inaccurate 

recitation of the law. U.S. v. Mayweather, 991 F.3d 1163, 1183 (11th Cir. 

2021) (“In particular, a district court may refuse to give a confusing jury 

instruction, U.S. v. Rodriguez-Suarez, 856 F.2d 135, at 140 (11 Cir. 1988); see 

U.S. v. Silverman, 745 F.2d 1386, 1396 (11th Cir. 1984), and ‘the charge as a 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 76 of

132
77 

whole [must] accurately reflect[ ] the law in the context of a case's facts,’ 

U.S. v. Isnadin, 742 F.3d 1278, 1296 (11th Cir. 2014.)” 

AUTHORITY: 29 U.S.C. § 203(m)(2)(B); 29 CFR §531.53. 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 77 of

132
78 

PROPOSED JURY INSTRUCTION NO. 33 

(Tip Ownership) 

However, an employer that facilitates tip pooling by collecting and 

redistributing employees’ tips must distribute those tips no later than the 

regular payday for the workweek in which the tips were collected. If an 

employer fails to so timely distribute tips so collected, the employer will be 

deemed to have violated the rule against keeping any portion of the 

employees’ tips. 

An employer that facilitates tip pooling by collecting and 

redistributing employees' tips does not violate the prohibition against 

keeping tips if it fully distributes any tips the employer collects no later 

than the regular payday for the workweek in which the tips were collected, 

or when the pay period covers more than a single workweek, the regular 

payday for the period in which the workweek ends. To the extent that it is 

not possible for an employer to ascertain the amount of tips that have been 

received or how tips should be distributed prior to processing payroll, tips 

must be distributed to employees as soon as practicable after the regular 

payday. 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instructions and this language is not included in it and certain language in 

it is superfluous, it does not relate to any specific issue in the case not 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 78 of

132
79 

covered by other instructions, it will not assist the jury in the 

determinations it must make in this case, it may confuse the jury, and it is 

prejudicial to Defendants.Plaintiffs’ proposed instruction is not an accurate 

recitation of 29 C.F.R. §531.54(b)(2), which is provided in bold above. U.S. v. 

Mayweather, 991 F.3d 1163, 1183 (11th Cir. 2021) (“In particular, a district 

court may refuse to give a confusing jury instruction, U.S. v. RodriguezSuarez, 856 F.2d 135, at 140 (11 Cir. 1988); see U.S. v. Silverman, 745 F.2d 

1386, 1396 (11th Cir. 1984), and ‘the charge as a whole [must] accurately 

reflect[ ] the law in the context of a case's facts,’ U.S. v. Isnadin, 742 F.3d 

1278, 1296 (11th Cir. 2014.)” 

AUTHORITY: 29 U.S.C. § 203(m)(2)(B); 29 CFR 531.52(b)(1); 29 CFR 

531.54(b)(2) 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 79 of

132
80 

PROPOSED JURY INSTRUCTION NO. 34 

(Tip Pool/Tip Credit) 

Only an employer that pays its tipped employees the full minimum 

wage and does not take a tip credit may impose a tip pooling arrangement 

that includes dishwashers, cooks, or other employees in the establishment 

who are not employed in an occupation in which employees customarily 

and regularly receive tips. However, in this case, it is undisputed that the 

employer does take a tip credit, therefore the employers in this case may 

not impose a tip pooling arrangement that includes dishwashers, cooks, or 

other employees in the establishment who are not employed in an 

occupation in which employees customarily and regularly receive tips. 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern 

jury instructions and this language is not included in it and certain language 

in it is superfluous, it does not relate to any specific issue in the case not 

covered by other instructions, it will not assist the jury in the determinations 

it must make in this case, it may confuse the jury, and it is prejudicial to 

Defendants.This language is not found within 29 C.F.R. 531.54, and it 

purports to use the amended language in effect for only a portion of the 

workweeks at issue (following the amendment of the Consolidated 

Appropriations Act of 2018 on March 23, 2018), which amended §203(m) of 

the FLSA. Rodriguez v. City Buffet Mongolian Barbeque, Inc., 2020 WL 

2476043, at *5 (M.D. Fla. Apr. 22, 2020), report and recommendation 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 80 of

132
81 

adopted, 2020 WL 2473452 (M.D. Fla. May 13, 2020). U.S. v. Mayweather, 

991 F.3d 1163, 1183 (11th Cir. 2021) (“In particular, a district court may 

refuse to give a confusing jury instruction, U.S. v. Rodriguez-Suarez, 856 

F.2d 135, at 140 (11 Cir. 1988); see U.S. v. Silverman, 745 F.2d 1386, 1396 

(11th Cir. 1984), and ‘the charge as a whole [must] accurately reflect[ ] the 

law in the context of a case's facts,’ U.S. v. Isnadin, 742 F.3d 1278, 1296 

(11th Cir. 2014.)” 

AUTHORITY: 29 U.S.C. § 203(m)(2)(A); 29 CFR 531.54(d). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 81 of

132
82 

PROPOSED JURY INSTRUCTION NO. 35 

(Unlawful Retention of Employees’ Tips and Invalid Tip Pool Participation) 

In this case the Plaintiffs maintain that their Employers (the 

Defendants) were not entitled to take a “tip credit” because a) Defendants 

frequently did not pay the reduced minimum hourly wage; b) Defendants 

unlawfully kept portions of the Plaintiffs’ tips; c) required that Plaintiffs 

contribute portions of their tips toward an invalid tip pool; and d) used 

Plaintiffs’ tips to underwrite Defendants business operations. In this regard, 

Plaintiffs maintain that the tip pool they had to contribute into was invalid 

because it required they make payments to persons who were not lawfully 

employed by the Defendants and could not accordingly be “employees 

who customarily and regularly received tips” as required for valid tip pools. 

Plaintiffs also maintain the tip pool was invalid because it included 

management and supervisory employees, and other workers that do not 

“customarily and regularly receive tips”. The Plaintiffs maintain that they 

should not have to pay any portion of their tips to pay wages of people or 

entities who are not lawfully or actually employed by the Defendants as 

employees, and they should not have to pay any portion of their tips to 

persons or entities who are management or supervisory employees of the 

Defendants or who otherwise are not tipped employees. Accordingly, in 

considering whether the tip pool is valid you may consider the following to 

determine whether the tip pool included ineligible participants. 

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 82 of

132
83 

DEFENDANTS’ OBJECTION(S): The proposed is is not an instruction, 

this is more of an opening argument or statement of Plaintiff’s case. It also 

only includes Plaintiffs’ arguments, not Defendants’ statement of the case 

or arguments is partisan and argumentative and therefore, inappropriate. 

U.S. v. Maxwell, 579 F.3d 1282, 1304 (11th Cir. 2009) (“proposed jury 

instructions contain partisan and argumentative statements of law and fact, 

and the district court was not obliged to present them to the jury in that 

form....”) The Eleventh Circuit enacted a pattern jury instructions and this 

language is not included in it and certain lang83anguageuage in it is 

superfluous, it does not relate to any specific issue in the case not covered 

by other instructions, it will not assist the jury in the determinations it must 

make in this case, it may confuse the jury, and it is prejudicial to 

Defendants. U.S. v. Mayweather, 991 F.3d 1163, 1183 (11th Cir. 2021) (“In 

particular, a district court may refuse to give a confusing jury instruction, 

U.S. v. Rodriguez-Suarez, 856 F.2d 135, at 140 (11 Cir. 1988); see U.S. v. 

Silverman, 745 F.2d 1386, 1396 (11th Cir. 1984), and ‘the charge as a whole 

[must] accurately reflect[ ] the law in the context of a case's facts,’ U.S. v. 

Isnadin, 742 F.3d 1278, 1296 (11th Cir. 2014.)” 

AUTHORITY: 29 U.S.C. § 202(a), (a)(3), (b); 29 U.S.C. § 203(e)(1); 29 U.S.C. 

§ 203(m); 29 U.S.C. § 203(m)(2)(A); 29 U.S.C. § 203(m)(2)(B); 29 CFR 

531.52(b). 29 CFR 531.54(c); 29 CFR 531.52(b)(1); 29 CFR 531.54(b)(1), (2); 29 

CFR 531.53. 29 CFR 531.54(d). 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 83 of

132
84 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

 

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 84 of

132
85 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 85 of

132
86 

PROPOSED JURY INSTRUCTION NO. 36 

(Tip Pool Participation) 

It is unlawful for any employer — 

(A) to hire... for employment in the United States an alien 

knowing them not at that time to be either (A) lawfully 

admitted for permanent residence, or (B) authorized to be so 

employed by immigration law or by the U.S. Attorney General., 

or 

 (B) 

(i) to hire for employment in the United States an 

individual without first verifying their eligibility for 

employment in accordance with applicable immigration 

law. 

 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Courts routinely disregard 

immigration status in determining a workers’ status as an employee under 

the FLSA. Perez v. 1st United Funding, LLC, 2019 WL 13256773, at *2 (S.D. 

Fla. Jan. 3, 2019) (“immigration status is irrelevant”); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013)“ ("undocumented 

workers are “employees” within the meaning of the FLSA” undocumented 

aliens are employees under the FLSA even after Supreme Court’s Hoffman

decision); Patel v. Quality Inn South, 846 F.2d 700, 704-05 (11th Cir. 1988) 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 86 of

132
87 

(undocumented aliens are employees). Additionally, the Eleventh Circuit 

enacted a pattern jury instructions and this language is not included in it 

and certain language in it is superfluous, it does not relate to any specific 

issue in the case not covered by other instructions, it will not assist the jury 

in the determinations it must make in this case, it may confuse the jury, and 

it is prejudicial to Defendants. In Lucas, cited by Plaintiffs, the Court 

recognized as follows: 

there is no “reason why the fact that” the employers unlawfully hired 

the workers “should exempt” them “from paying the” wages “that if 

lawful” they “would have to pay.” Id. “Certainly there is no reason for 

treating” the employers “more leniently.” Rutkin v. United States, 343 

U.S. 130, 137, 72 S.Ct. 571, 96 L.Ed. 833 (1952). 

Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013) 

AUTHORITY: Hoffman Plastic Compounds v. N’at'l Labor Relations Bd., 

535 U.S. 137, 141 (2002); 8 U.S.C. § 1324a (a), (b), (h)(3). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 87 of

132
88 

PROPOSED JURY INSTRUCTION NO. 37 

 (Tip Pool Participation) 

It is unlawful for employers to knowingly hire undocumented workers 

or to hire any individual without verifying their eligibility for employment. 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Courts routinely disregard 

immigration status in determining a workers’ status as an employee under 

the FLSA. Perez v. 1st United Funding, LLC, 2019 WL 13256773, at *2 (S.D. 

Fla. Jan. 3, 2019) (“immigration status is irrelevant”); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013“ ("undocumented 

workers are “employees” within the meaning of the FLSA” even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988) (undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to Defendants. In 

Lucas, cited by Plaintiffs, the Court recognized as follows: 

there is no “reason why the fact that” the employers unlawfully hired 

the workers “should exempt” them “from paying the” wages “that if 

lawful” they “would have to pay.” Id. “Certainly there is no reason for 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 88 of

132
89 

treating” the employers “more leniently.” Rutkin v. United States, 343 

U.S. 130, 137, 72 S.Ct. 571, 96 L.Ed. 833 (1952). 

Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013). 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Lamonica v. Safe Hurricane 

Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013)(undocumented aliens are 

employees under the FLSA even after Supreme Court’s Hoffman decision); 

Patel v. Quality Inn South, 846 F.2d 700, 704-05 (11th Cir. 

1988)(undocumented aliens are employees). Additionally, the Eleventh 

Circuit enacted a pattern jury instructions and this language is not included 

in it and certain language in it is superfluous, it does not relate to any 

specific issue in the case not covered by other instructions, it will not assist 

the jury in the determinations it must make in this case, it may confuse the 

jury, and it is prejudicial to Defendants. 

AUTHORITY: Hoffman Plastic Compounds v. N’at'l Labor Relations Bd., 

535 U.S. 137, 141 (2002); 8 U.S.C. § 1324a (a), (b), (h)(3) 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 89 of

132
90 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 90 of

132
91 

PROPOSED JURY INSTRUCTION NO. 38 

 (Tip Pool Participation) 

Immigration Law “forcefully” combats the employment of 

undocumented workers by establishing an extensive “employment 

verification system,” designed to deny employment to aliens who (a) are 

not lawfully present in the United States, or (b) who are not lawfully 

authorized to work in the United States. This verification system is critical to 

both Immigration Law and Labor Law. Enforcement of Immigration Laws 

mandates that employers verify the identity and eligibility of their 

workforce by examining specified documents before they begin work. If an 

undocumented alien applicant is unable to present the required 

documentation, the undocumented alien cannot be lawfully hired, and the 

employer alone is liable for the payment of their minimum wages; no lawful 

employee should be required to contribute to the payment of an 

undocumented worker’s wages, by paying the undocumented alien any 

portion of their tips or other wages. 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Courts routinely disregard 

immigration status in determining a workers’ status as an employee under 

the FLSA. Perez v. 1st United Funding, LLC, 2019 WL 13256773, at *2 (S.D. 

Fla. Jan. 3, 2019) (“immigration status is irrelevant”); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013“ ("undocumented 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 91 of

132
92 

workers are “employees” within the meaning of the FLSA” even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988) (undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to Defendants. U.S. v. 

Mayweather, 991 F.3d 1163, 1183 (11th Cir. 2021) (“In particular, a district 

court may refuse to give a confusing jury instruction, U.S. v. RodriguezSuarez, 856 F.2d 135, at 140 (11 Cir. 1988); see U.S. v. Silverman, 745 F.2d 

1386, 1396 (11th Cir. 1984), and ‘the charge as a whole [must] accurately 

reflect[ ] the law in the context of a case's facts,’ U.S. v. Isnadin, 742 F.3d 

1278, 1296 (11th Cir. 2014.)” 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Lamonica v. Safe Hurricane 

Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013)(undocumented aliens are 

employees under the FLSA even after Supreme Court’s Hoffman decision); 

Patel v. Quality Inn South, 846 F.2d 700, 704-05 (11th Cir. 

1988)(undocumented aliens are employees). Additionally, the Eleventh 

Circuit enacted a pattern jury instructions and this language is not included 

in it and certain language in it is superfluous, it does not relate to any 

specific issue in the case not covered by other instructions, it will not assist 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 92 of

132
93 

the jury in the determinations it must make in this case, it may confuse the 

jury, and it is prejudicial to Defendants. 

AUTHORITY: Hoffman Plastic Compounds v. N’at'l Labor Relations Bd., 

535 U.S. 137, 147-8 (2002); INS v. National Center for Immigran’ts' Rights, 

Inc., 502 U.S. 183, 194, and n. 8 (1991); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (1 1th Cir. 1988); 8 U.S.C. § 1324a (a), (b), (h)(3). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 93 of

132
94 

PROPOSED JURY INSTRUCTION NO. 39 

 (Tip Pool Participation) 

 

The FLSA does not allow employers to exploit a worker’s immigration 

status or to profit from utilizing an undocumented workforce in violation of 

federal immigration law. 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Courts routinely disregard 

immigration status in determining a workers’ status as an employee under 

the FLSA. Perez v. 1st United Funding, LLC, 2019 WL 13256773, at *2 (S.D. 

Fla. Jan. 3, 2019) (“immigration status is irrelevant”); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013“ ("undocumented 

workers are “employees” within the meaning of the FLSA” even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988) (undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to Defendants. In 

Lucas, cited by Plaintiffs, the Court recognized as follows: 

there is no “reason why the fact that” the employers unlawfully hired 

the workers “should exempt” them “from paying the” wages “that if 

lawful” they “would have to pay.” Id. “Certainly there is no reason for 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 94 of

132
95 

treating” the employers “more leniently.” Rutkin v. United States, 343 

U.S. 130, 137, 72 S.Ct. 571, 96 L.Ed. 833 (1952). 

Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013) 

DEFENDANTS’ OBJECTION(S): Lamonica v. Safe Hurricane Shutters, Inc., 711 

F.3d 1299 (11th Cir. 2013)(undocumented aliens are employees under the 

FLSA even after Supreme Court’s Hoffman decision); Patel v. Quality Inn 

South, 846 F.2d 700, 704-05 (11th Cir. 1988)(undocumented aliens are 

employees). Additionally, the Eleventh Circuit enacted a pattern jury 

instructions and this language is not included in it and certain language in 

it is superfluous, it does not relate to any specific issue in the case not 

covered by other instructions, it will not assist the jury in the determinations 

it must make in this case, it may confuse the jury, and it is prejudicial to 

Defendants.

AUTHORITY: Patel v. Quality Inn South, 846 F.2d 700, 704-05 (1 1th Cir. 

1988); Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 930 (8th Cir. 2013); 8 

U.S.C. § 1324a (a), (b), (h)(3) 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 95 of

132
96 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 96 of

132
97 

PROPOSED JURY INSTRUCTION NO. 40 

 (Tip Pool Participation) 

 

The United States Citizenship and Immigration Services require all 

employers to verify employment eligibility by properly completing a Form I9 for all employees. 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Courts routinely disregard 

immigration status in determining a worker’s status as an employee under 

the FLSA. Perez v. 1st United Funding, LLC, 2019 WL 13256773, at *2 (S.D. 

Fla. Jan. 3, 2019) (“immigration status is irrelevant”); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013“ ("undocumented 

workers are “employees” within the meaning of the FLSA” even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988) (undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to 

DefendantsDEFENDANTS’ OBJECTION(S): Lamonica v. Safe Hurricane 

Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013)(undocumented aliens are 

employees under the FLSA even after Supreme Court’s Hoffman decision); 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 97 of

132
98 

Patel v. Quality Inn South, 846 F.2d 700, 704-05 (11th Cir. 

1988)(undocumented aliens are employees). Additionally, the Eleventh 

Circuit enacted a pattern jury instructions and this language is not included 

in it and certain language in it is superfluous, it does not relate to any 

specific issue in the case not covered by other instructions, it will not assist 

the jury in the determinations it must make in this case, it may confuse the 

jury, and it is prejudicial to Defendants. In Lucas, cited by Plaintiffs, the 

Court recognized as follows: 

there is no “reason why the fact that” the employers unlawfully hired 

the workers “should exempt” them “from paying the” wages “that if 

lawful” they “would have to pay.” Id. “Certainly there is no reason for 

treating” the employers “more leniently.” Rutkin v. United States, 343 

U.S. 130, 137, 72 S.Ct. 571, 96 L.Ed. 833 (1952). 

Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013) 

AUTHORITY: Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 932, fn. 3 (8th 

Cir. 2013); 8 U.S.C. § 1324a (a), (b), (h)(3). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 98 of

132
99 

PROPOSED JURY INSTRUCTION NO. 41 

 (Tip Pool Participation) 

 

“[T]here is no reason for treating” employers “more leniently” under 

the FLSA as a result of their use of undocumented workers. 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Courts routinely disregard 

immigration status in determining a workers’ status as an employee under 

the FLSA. Perez v. 1st United Funding, LLC, 2019 WL 13256773, at *2 (S.D. 

Fla. Jan. 3, 2019) (“immigration status is irrelevant”); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013“ ("undocumented 

workers are “employees” within the meaning of the FLSA” even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988) (undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to 

DefendantsDEFENDANTS’ OBJECTION(S): Lamonica v. Safe Hurricane 

Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013)(undocumented aliens are 

employees under the FLSA even after Supreme Court’s Hoffman decision); 

Patel v. Quality Inn South, 846 F.2d 700, 704-05 (11th Cir. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 99 of

132
100 

1988)(undocumented aliens are employees). Additionally, the Eleventh 

Circuit enacted a pattern jury instructions and this language is not included 

in it and certain language in it is superfluous, it does not relate to any 

specific issue in the case not covered by other instructions, it will not assist 

the jury in the determinations it must make in this case, it may confuse the 

jury, and it is prejudicial to Defendants. In Lucas, cited by Plaintiffs, the 

Court recognized as follows: 

there is no “reason why the fact that” the employers unlawfully hired 

the workers “should exempt” them “from paying the” wages “that if 

lawful” they “would have to pay.” Id. “Certainly there is no reason for 

treating” the employers “more leniently.” Rutkin v. United States, 343 

U.S. 130, 137, 72 S.Ct. 571, 96 L.Ed. 833 (1952). 

Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013) 

AUTHORITY: Rutkin v. United States, 343 U.S. 130, 137, (1952); Lucas v. 

Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013); 8 U.S.C. § 1324a (a), 

(b), (h)(3) 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 100 of

132
101 

PROPOSED JURY INSTRUCTION NO. 42 

 (Tip Pool Participation) 

 

Labor Laws work in tandem with Immigration Laws to discourage 

employers from hiring unauthorized workers by “assur[ing] that the wages 

and employment of lawful residents are not adversely affected by the 

competition of illegal alien employees who are not subject to the standard 

terms of employment...”. 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Courts routinely disregard 

immigration status in determining a worker’s status as an employee under 

the FLSA. Perez v. 1st United Funding, LLC, 2019 WL 13256773, at *2 (S.D. 

Fla. Jan. 3, 2019) (“immigration status is irrelevant”); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013“ ("undocumented 

workers are “employees” within the meaning of the FLSA” even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988) (undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to Defendants. In 

Lucas, cited by Plaintiffs, the Court recognized as follows: 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 101 of

132
102 

there is no “reason why the fact that” the employers unlawfully hired 

the workers “should exempt” them “from paying the” wages “that if 

lawful” they “would have to pay.” Id. “Certainly there is no reason for 

treating” the employers “more leniently.” Rutkin v. United States, 343 

U.S. 130, 137, 72 S.Ct. 571, 96 L.Ed. 833 (1952). 

Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013) 

Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 

2013)(undocumented aliens are employees under the FLSA even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988)(undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to Defendants.

AUTHORITY: See Sure- Tan, 467 U.S. 883, 893 (1984); Lucas v. Jerusalem 

Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013); 8 U.S.C. § 1324a (a), (b), (h)(3). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 102 of

132
103 

PROPOSED JURY INSTRUCTION NO. 43 

 (Tip Pool Participation) 

 

Labor Laws work in tandem with Immigration Laws to together 

promote dignified employment conditions for those working in this country 

while firmly discouraging the employment of individuals who lack work 

authorization. If an employer realizes that there will be no advantage under 

Labor Laws in preferring unauthorized workers over legal resident workers, 

any incentive to hire such a workforce is correspondingly reduced. 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Courts routinely disregard 

immigration status in determining a worker’s status as an employee under 

the FLSA. Perez v. 1st United Funding, LLC, 2019 WL 13256773, at *2 (S.D. 

Fla. Jan. 3, 2019) (“immigration status is irrelevant”); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013“ ("undocumented 

workers are “employees” within the meaning of the FLSA” even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988) (undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 103 of

132
104 

this case, it may confuse the jury, and it is prejudicial to Defendants. In 

Lucas, cited by Plaintiffs, the Court recognized as follows: 

there is no “reason why the fact that” the employers unlawfully hired 

the workers “should exempt” them “from paying the” wages “that if 

lawful” they “would have to pay.” Id. “Certainly there is no reason for 

treating” the employers “more leniently.” Rutkin v. United States, 343 

U.S. 130, 137, 72 S.Ct. 571, 96 L.Ed. 833 (1952). 

Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013) 

Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 

2013)(undocumented aliens are employees under the FLSA even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988)(undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to Defendants.

AUTHORITY: Sure-Tan, 467 U.S. 883, 893 (1984); Lucas v. Jerusalem 

Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013); 8 U.S.C. § 1324a (a), (b), (h)(3). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 104 of

132
105 

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 105 of

132
106 

PROPOSED JURY INSTRUCTION NO. 44 

 (Tip Pool Participation) 

 

Holding employers who violate federal immigration law and federal 

employment law liable for both violations advances the purpose of federal 

immigration policy by “offset[ting] what is perhaps the most attractive 

feature of [unauthorized] workers– -- their willingness to work for less than 

the minimum wage.” 

DEFENDANTS’ OBJECTION(S): The Hoffman case relied on by Plaintiffs for 

this instruction does not apply to FLSA cases. Courts routinely disregard 

immigration status in determining a worker’s status as an employee under 

the FLSA. Perez v. 1st United Funding, LLC, 2019 WL 13256773, at *2 (S.D. 

Fla. Jan. 3, 2019) (“immigration status is irrelevant”); Lamonica v. Safe 

Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013“ ("undocumented 

workers are “employees” within the meaning of the FLSA” even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988) (undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to Defendants. In 

Lucas, cited by Plaintiffs, the Court recognized as follows: 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 106 of

132
107 

there is no “reason why the fact that” the employers unlawfully hired 

the workers “should exempt” them “from paying the” wages “that if 

lawful” they “would have to pay.” Id. “Certainly there is no reason for 

treating” the employers “more leniently.” Rutkin v. United States, 343 

U.S. 130, 137, 72 S.Ct. 571, 96 L.Ed. 833 (1952). 

Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013) 

Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 

2013)(undocumented aliens are employees under the FLSA even after 

Supreme Court’s Hoffman decision); Patel v. Quality Inn South, 846 F.2d 

700, 704-05 (11th Cir. 1988)(undocumented aliens are employees). 

Additionally, the Eleventh Circuit enacted a pattern jury instructions and 

this language is not included in it and certain language in it is superfluous, 

it does not relate to any specific issue in the case not covered by other 

instructions, it will not assist the jury in the determinations it must make in 

this case, it may confuse the jury, and it is prejudicial to Defendants.

AUTHORITY: Patel v. Quality Inn South, 846 F.2d 700, 704 (11th Cir. 

1988). Sure-Tan, 467 467 U.S. 883, 893 (1984). Lucas v. Jerusalem Cafe, LLC, 

721 F.3d 927, 936 (8th Cir. 2013); 8 U.S.C. § 1324a (a), (b), (h)(3). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 107 of

132
108 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 108 of

132
109 

PROPOSED JURY INSTRUCTION NO. 45 

 (Statute of Limitations) 

If you find that Defendants failed to pay either Plaintiff their minimum 

wages due for any pay period occurring before June 2018, then you must 

consider, for those pay periods only, whether Defendants either knew, or 

showed reckless disregard for whether they had complied with the 

minimum wage requirements under the FLSA“. "Reckless disrega”rd" is 

defined as failure to make adequate inquiry into whether conduct is in 

compliance with the Act. If you find that the employers knew, or showed 

reckless disregard for the matter of whether, its conduct was prohibited by 

the FLSA, then Plaintiffs are entitled to recover damages for unpaid 

minimum wages occurring from June 2017, through the end of their 

employment. If, on the other hand, you find that Defendants failed to pay 

Plaintiffs minimum wages in accordance with applicable law, but 

Defendants did not know and did not show reckless disregard for whether 

it failed to comply with applicable law, then Plaintiffs are entitled to recover 

only for minimum wages due on or after June 23, 2018. 

If you find a violation of the FLSA by Defendants, or any one of them, 

you must also decide whether the violation was willful. To prove willfulness, 

Plaintiffs must establish that the employer knew, or showed reckless 

disregard for, the fact that its conduct was forbidden by the FLSA. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 109 of

132
110 

Reckless disregard is the failure to make adequate inquiry into whether 

conduct is in compliance with the FLSA. Even if an employer acted 

unreasonably, if the employer’s action was not reckless in determining its 

legal obligations under the FLSA, such action is not willful. 

DEFENDANTS’ OBJECTION(S): The issue of damages is already covered 

in Plaintiff’s proposed instruction #20 and covering again is duplicative, 

redundant and prejudicial. A Additionally, the Eleventh Circuit enacted a 

pattern jury instructions and portions of this language is not included in it 

and certain language in it is superfluous, it does not relate to any specific 

issue in the case not covered by other instructions, it will not assist the jury 

in the determinations it must make in this case, it may confuse the jury, and 

it is prejudicial to Defendants. Also, the Complaint was filed on June 23, 2020 

so the instruction should specifically reference June 23rd, not just “June.” The 

proposed instruction contains argumentative language and does not track 

the language used in Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 

1280 (11th Cir. 2008). U.S. v. Maxwell, 579 F.3d 1282, 1304 (11th Cir. 2009) 

(“proposed jury instructions contain partisan and argumentative statements 

of law and fact, and the district court was not obliged to present them to the 

jury in that form....”) 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 4.14 (2020) 

(Modified)

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 110 of

132
111 

By Defendants: 11th Cir. Pattern Jury Instructions, Annotations and 

Comments; Morgan v. Family Dollar Stores, Inc., 551 F 3d 1233 (11th Cir. 

2008); 5 C.F.R. § 551.104; Powell v. Carey International, Inc., 483 F. Supp. 2d 

1168 (S.D. Fla. 2007)(citation omitted). 

 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 111 of

132
112 

PROPOSED JURY INSTRUCTION NO. 46 

 (Retaliation) 

 

In this case, [Erik Chavez] claims that [Defendants] retaliated against 

[him] because [he] took steps to enforce [his] lawful rights under [the FLSA]. 

Laws that prohibit discrimination in the workplace also prohibit an 

employer from taking any retaliatory action against an employee because 

the employee has asserted rights or made complaints protected by the 

FLSA. 

To fall within the scope of the Fair Labor Standard Act’s antiretaliation provision, the first element of proof requires that Erik Chavez 

demonstrate that he engaged in protected activity by asserting a rights or 

making a complaint pertaining to his protected FLSA rights. In this regard, 

the assertion of the right must be sufficiently clear and detailed for a 

reasonable employer to understand it, in light of both content and context, 

as an assertion of rights protected by the statute and a call for their 

protection. This standard can be met, by oral complaints, as well as by 

written ones. 

For the second element, [Erik Chavez] claims that [Defendants] took 

adverse employment action against [him] when Defendants terminated his 

employment[Erik Chavez] [complained about the non-payment of his 

statutory wages]. You must decide whether [his termination from 

employment] is an adverse employment action. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 112 of

132
113 

An “adverse employment action” is any type of action that would 

have made a reasonable employee reluctant to assert rights or make a 

complaint protected by the FLSA. Put another way, if a reasonable 

employee would be less likely to complain about the failure of his employer 

to pay him in accordance with law, then that action is an adverse 

employment action. If the employment action would not make it less likely 

for a reasonable employee to make such a complaint or assert such a right, 

it is not an adverse employment action. 

For the third element, if you find that [Erik Chavez] engaged in 

protected activity and that [Defendants] took an adverse employment 

action against [him], you must decide whether [Defendants] took that 

action because of [Erik Chavez]’s protected activity. Put another way, you 

must decide whether [Erik Chavez]’s protected activity was the main reason 

for [Defendants]’ decision. 

To determine that [Defendants] took an adverse employment action 

because of [Erik Chavez]’s protected activity, you must decide that [name of 

defendant] would not have taken the action had [name of plaintiff] not 

engaged in the protected activity but everything else had been the same. 

Defendants claim that they did not terminate Plaintiff’s employment 

because of his complaints but rather that Plaintiff resigned his employment 

and did not return to work. An employer may not take an adverse action 

against an employee because of the employee’s protected activity. But an 

employer may terminate an employee for any other reason, good or bad, 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 113 of

132
114 

fair or unfair. If you believe Defendants’ reasons for their decision, and you 

find that Defendants did not terminate Chavez’s employment because of 

his protected activity, you must not second guess that decision, and you 

must not substitute your own judgment for Defendants’ judgment – even if 

you do not agree with it. 

For the fourth element, you must decide whether [Defendants]’ acts 

were the proximate cause of damages that [Erik Chavez] sustained. Put 

another way, you must decide, if [Defendants] had not [terminated] [Erik 

Chavez], would these damages have occurred?] 

If you find that [Defendants]’s acts were the proximate cause of 

damages that [Erik Chavez] sustained, you must determine the amount of 

damages. 

[When considering the issue of [Erik Chavez]’s compensatory 

damages, you should determine what amount, if any, has been proven by 

[Erik Chavez] by a preponderance of the evidence as full, just and 

reasonable compensation for all of [Erik Chavez]’s damages as a result of 

[termination from employment], no more and no less. Compensatory 

damages are not allowed as a punishment and must not be imposed or 

increased to penalize [Defendants]. Also, compensatory damages must not 

be based on speculation or guesswork. 

You should consider the following element of damage, to the extent 

you find that [Erik Chavez] has proved it by a preponderance of the 

evidence, and no others: (a) net lost wages and benefits from the date of 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 114 of

132
115 

[discharge/denied promotion] to the date of your verdict; and (b) emotional 

pain and mental anguish. 

You are instructed that any person who claims damages as a result of 

an alleged wrongful act on the part of another has a duty under the law to 

“mitigate” those damages. For purposes of this case, the duty to mitigate 

damages requires Plaintiff to be reasonably diligent in seeking substantially 

equivalent employment to the position he held with Defendants. To prove 

that Plaintiff failed to mitigate damages, Defendants must prove by a 

preponderance of the evidence that: (1) work comparable to the position 

Plaintiff held with Defendants was available; and (2) Plaintiff did not make 

reasonable diligent efforts to obtain it. If, however, Defendants show that 

Plaintiff did not make reasonable efforts to obtain any work, then 

Defendants do not have to prove that comparable work was available. 

If you find that Defendants proved by a preponderance of the 

evidence that Plaintiff failed to mitigate damages, then you should reduce 

the amount of Plaintiff’s damages by the amount that could have been 

reasonably realized if Plaintiff had taken advantage of any opportunity for 

substantially equivalent employment. 

To determine the amount of [Erik Chavez]’s net lost wages and 

benefits, you should consider evidence of the actual wages [he] lost and the 

monetary value of any benefits [he] lost. 

To determine whether and how much [Erik Chavez] should recover for 

emotional pain and mental anguish, you may consider both the mental and 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 115 of

132
116 

physical aspects of injury – tangible and intangible. [Erik Chavez] does not 

have to introduce evidence of a monetary value for intangible things like 

mental anguish. You must determine what amount will fairly compensate 

[him] for those claims. There is no exact standard to apply, but the award 

should be fair in light of the evidence.]. 

DEFENDANTS’ OBJECTION(S): Additionally, the Eleventh Circuit enacted a 

pattern jury instructions and Plaintiffs’ proposed instruction omits 

important parts of it including portions regarding at will employment and 

mitigation of damages. Plaintiffs’ proposed instruction also includes 

language that is not included in the pattern instruction and is superfluous, 

does not relate to any specific issue in the case not covered by other 

instructions, will not assist the jury in the determinations it must make in 

this case, may confuse the jury, and is prejudicial to Defendants. 

AUTHORITY: 11th Circuit Pattern Jury Instructions, 4.22 (2020) 

(Modified); Kasten v. Saint-Gobain Performance Plastics Corporation, 131 

S.Ct. 1325, 1335, 1329-30 (2011) 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 116 of

132
117 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 117 of

132
118 

PROPOSED JURY INSTRUCTION NO. 47 

 (Recordkeeping) 

 The FLSA requires employers to keep records of the number of hours 

worked by its employees, like the Plaintiff. This obligation includes the 

requirement that employers maintain records of the dates when wage 

payments were made and records of retroactive payment of wages when 

wages were not paid on time. It is the employer, not the employee that has 

the duty under the FLSA to maintain proper and accurate records of when 

wages were paid. 

 If you find that Defendants have kept inaccurate or inadequate 

records of when the Plaintiff’s wages were paid and because of such 

inaccurate or inadequate records, the Plaintiff cannot offer any convincing 

substitutes for the inaccurate or inadequate records, the burden of proof 

on each Plaintiff only requires that each Plaintiff has, in fact, performed 

work for which he or she was paid late. 

 If a Plaintiff shows that he or she performed work for which he or she 

was paid after the designated pay date as a matter of just and reasonable 

inference, the Plaintiff has satisfied his or her burden of proof since the 

FLSA does not require that a Plaintiff prove damages with exactness or 

precision. In this event, the burden of proof shifts to Defendants to come 

forward with evidence of the precise dates on which a Plaintiff was paid for 

work performed. 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 118 of

132
119 

DEFENDANTS’ OBJECTION(S): This proposed instruction is redundant. Plus, 

Defendants do not believe there is an issue of inadequate recordkeeping, as 

they maintained the records required by the FLSA, and so object to the 

inclusion of the inadequate recordkeeping portion of this standard 

instruction as irrelevant and confusing. Sec. & Exch. Comm'n v. Complete 

Bus. Sols. Group, Inc., 608 F. Supp. 3d 1231, 1248 (S.D. Fla. 2022) (“not entitled 

to a jury instruction on an issue that is not before the jury”). Moreover, the 

evidence in the case is that Defendants complied with the recordkeeping 

requirements imposed by 29 C.F.R. §516.2, making the recordkeeping portion 

of the instruction unnecessaryThe Eleventh Circuit enacted a pattern jury 

instructions and this language is not included in it, it is superfluous, it does 

not relate to any specific issue in the case not covered by other instructions 

(Defendants have records of Plaintiff’s hours and earnings), it will not assist 

the jury in the determinations it must make in this case, it may confuse the 

jury, and it is prejudicial to Defendants. 

AUTHORITY: 29 U.S.C. §211(c); 29 C.F.R. §§516.2(1)(12) and 516.2(b) 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 119 of

132
120 

PROPOSED JURY INSTRUCTION NO. 48 

(Record Keeping Obligation Under the FLSA) 

Inadequate Records: The law requires [an] employer(s) to keep records 

of 

how many hours [his/her/its/their] employees work and the amount they are 

paid. 

In this case, Plaintiffs claims that Grill Enterprises, LLC and Ruben Sierra failed 

to keep and maintain adequate records of their hours and pay. Plaintiffs also 

claims that Grill Enterprises, LLC’s and Ruben Sierra’s failure to keep and 

maintain adequate records has made it difficult for Plaitniffs to prove the 

exact amount of 

their claim. 

If you find that Grill Enterprises, LLC and Ruben Sierra failed to keep 

adequate time and pay records for Plaintiffs and that Plaintiffs performed 

work for 

which they should have been paid, Plaintiffs may recover a reasonable 

estimation of the amount of their damages. But to recover this amount, 

Plaintiffs must prove by a preponderance of the evidence a reasonable 

estimation of the amount and extent of the work for which they seek 

payThe law requires an employer to keep records – including pay and time 

keeping records -- sufficient to permit enforcement of FLSA rights. 

In this case, Plaintiffs claim that Defendants failed to keep and maintain 

adequate records regarding the payment of their wages and the calculation 

of the amounts due during periods of their employment. 

If you find that Defendants failed to keep adequate pay and time-keeping 

records, but and that Plaintiff performed work for which he should have 

been paid, Plaintiff may recover a reasonable estimation of the amount of 

his damages. But to recover this amount, Plaintiffs must prove by a 

preponderance of the evidence a reasonable estimation of the amount and 

extent of the work for which he seeks pay. Plaintiff meets this burden of 

proof by offering a meaningful explanation of how he arrived at his 

estimation.

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 120 of

132
121 

[Verbatim from 4.14 – 2022 version) 

DEFENDANTS’ OBJECTION(S): The Eleventh Circuit enacted a pattern jury 

instructions, and this language is not included in it, it is superfluous, it does 

not relate to any specific issue in the case not covered by other instructions 

(Defendants have records of Plaintiff’s hours and earnings), it will not assist 

the jury in the determinations it must make in this case, it may confuse the 

jury, and it is prejudicial to Defendants.which incorporates this language; 

therefore, it is superfluous. United States v. Green, 2016 WL 3866567, at *4 

(S.D. Ga. July 13, 2016) (“these instructions were superfluous as the Court 

provided the proper warnings to the jury pursuant to the Eleventh Circuit 

Pattern Jury Instructions”). Defendants do not believe there is an issue of 

inadequate recordkeeping, as they maintained the records required by the 

FLSA and so object to the inclusion of the inadequate recordkeeping portion 

of this standard instruction as irrelevant and confusing. Sec. & Exch. Comm'n 

v. Complete Bus. Sols. Group, Inc., 608 F. Supp. 3d 1231, 1248 (S.D. Fla. 2022) 

(“not entitled to a jury instruction on an issue that is not before the jury”). 

Moreover, the evidence in the case is that Defendants complied with the 

recordkeeping requirements imposed by 29 C.F.R. §516.2, making the 

recordkeeping portion of the instruction unnecessary 

AUTHORITY: 1 1th Circuit Pattern Jury Instruction (Civil Cases) 2013, 4.14 

(modified); 29 U.S.C. §211(c); 29 C.F.R. §516.2; Gaylord v. Miami-Dade 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 121 of

132
122 

County, 78 F.Supp.2d 1320 (S.D. Fla. 1999); Reich v. D’ep't of Conservation 

& Natural Res., State of Ala., 28 F.3d 1076, 1081 (1 1th Cir. 1994); Anderson v. 

Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946; Jackson v. Corrections 

Corp. of America, 606 Fed. Appx. 945, 952 (1 1th Cir. 2015); Ojeda-Sanchez v. 

Bland Farms, LLC, 499 Fed. Appx. 897, 901 (1 1th Cir. 2012) Pino v. Universal 

Used Pallets, Inc., 16-24747-CIV, 2017 WL 4777546 at *2 (S.D. Fla. Oct. 23, 

2017). 

GIVEN ☐

REFUSED ☐

GIVEN AS MODIFIED ☐

WITHDRAWN ☐

OBJECTION ☐

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 122 of

132
1 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Miami Division 

Case No.: 20-22603-CIV-COOKE/GOODMAN 

Erik Chavez, individually, and on 

behalf of others 

similarly situated, 

Plaintiff, 

vs. 

Grill Enterprises, LLC, a Florida limited 

liability company, 

d/b/a “Los 

Parrilleros” and 

“Parrilleros Tavern”, 

and; 

Ruben Sierra, individually, 

Defendants. 

 

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 123 of

132
2 

PROPOSED INSTRUCTION 

 

PLAINTIFF’S [PROPOSED] SPECIAL VERDICT FORM 

 

An employer was not reckless and did not willfully violate the FLSA and is 

entitled to rely on an investigation of its pay practices conducted by the 

United States Department of Labor, Wage and Hour Division. 

AUTHORITY: Garcia v. J&J, Inc., 2020 WL 209732, at *3 (S.D. Fla. Jan. 14, 

2020). 

 

 

 

 

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 124 of

132
3 

PROPOSED INSTRUCTION 

 

Taxes that are assessed against the employee and which are collected by the 

employer and forwarded to the appropriate governmental agency may be 

included as “wages” although they do not technically constitute “board, 

lodging, or other facilities” within the meaning of the FLSA. This principle is 

applicable to the employee's share of social security and State 

unemployment insurance taxes, as well as other Federal, State, or local taxes, 

levies, and assessments. No deduction may be made for any tax or share of 

a tax which the law requires to be borne by the employer. 

 

 

 

AUTHORITY: 29 C.F.R. § 531.38 

 

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 125 of

132
4 

PROPOSED INSTRUCTION 

 

“[A]n employer may subtract a sum from an employee's charged gratuity 

which reasonably compensates it for its outlays sustained in clearing that tip, 

without” violating the law. “For example, where a credit card company 

charges an employer 5 percent on all sales charged to its credit service, the 

employer may pay the employee 95 percent of the tips without violating 

FLSA.” 

 

[T]he employer may, consistent with the letter and spirit of the FLSA, withhold 

a standard composite percentage from each credit card tip, even if, as a 

consequence, some deductions will exceed the expense actually incurred in 

collecting the subject gratuity, as long as the employer proves by a 

preponderance of evidence that, in the aggregate, the amounts collected 

from its employees, over a definable time period, have reasonably 

reimbursed it for no more than its total expenditures associated with credit 

card tip collections.15 Stated differently, *555 the employer must prove that 

its total deductions from employees' tip incomes did not enrich it, but 

instead, at most, merely restored it to the approximate financial posture it 

would have occupied if it had not undertaken to collect credit card tips for 

its employees during the relevant period.” 

 

 

AUTHORITY: FLSA PAYMENT OF MINIMUM HOURLY WAGE 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 126 of

132
5 

Vega v. Ya Guan USA LLC, 2020 WL 13413699, at *3 (S.D. Fla. Sept. 23, 2020); 

and Myers v. Copper Cellar Corp., 192 F.3d 546, 553-555 (6th Cir. 1999) 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 127 of

132
6 

PROPOSED INSTRUCTION 

 

“[A] charged gratuity becomes a “tip” only after the employer has liquidated 

it and transferred the proceeds to the tipped employee; prior to that 

transfer, the employer has an obvious legal right to deduct the cost of 

converting the credited tip to cash." 

 

 

AUTHORITY: Myers v. Copper Cellar Corp., 192 F.3d 546, 554 (6th Cir. 1999) 

 

 

 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 128 of

132
7 

PROPOSED INSTRUCTION 

 

The FLSA does not prohibit employers from requiring tipped employees to 

share tips with other tipped employees through a tip pool. However, “[o]nly 

tipped employees can participate in a valid tip pool.” 

 

 

AUTHORITY: Chavez v. Grill Enterprises, LLC, 12022 WL 6568970, at *17 (S.D. 

Fla. Aug. 15, 2022), report and recommendation adopted, 2022 WL 4244017 

(S.D. Fla. Sept. 15, 2022); Ash v. Sambodromo, LLC, 676 F. Supp. 2d 1360, 

1369 (S.D. Fla. 2009 (citing 29 U.S.C. § 203(m); and Kilgore v. Outback 

Steakhouse of Fla., Inc., 160 F.3d 294 (6th Cir. 1998)). 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 129 of

132
8 

PROPOSED INSTRUCTION 

 

“Tipped employee” means any employee engaged in an occupation in 

which he customarily and regularly receives more than $30 a month in tips. 

 

 

AUTHORITY: 29 U.S.C. §209(t). 

 

Do you find from a preponderance of the evidence: 

 

1. That Plaintiffs were engaged in commerce, or employed 

by an enterprise engaged in commerce? 

Answer Yes or No _____________ 

 If your answer is “No,” this ends your deliberations, and 

your foreperson should sign and date the last page of this 

verdict form. If your answer is “Yes,” go to the next 

question. 

2. That Defendants required or facilitated the Plaintiffs’ 

participation in an invalid “tip pool”? 

Answer Yes or No _____________ 

 If your answer is “No,” skip to Question 6 (re: retaliation). 

If your answer is “Yes,” go to the next question. 

3. That Defendants kept any portion of Plaintiffs’ tips? 

Answer Yes or No _____________ 

34. That Defendants failed to fully pay Erik Chavez the 

minimum hourly wage due on any regularly scheduled 

pay day, as required by law? 

Answer Yes or No _____________ 

 If your answer is “No,” skip to Question 7 (re: Lionel Diaz). 

If your answer is “Yes,” go to the next question. 

If your answer is YES, how much is Erik Chavez due on account of unpaid 

minimum wages? 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 130 of

132
9 

 $_____________ 

45. That Defendants failed to fully pay Lionel Diaz the 

minimum hourly wage due on any regularly scheduled 

pay day, as required by law? 

Answer Yes or No _____________ 

If your answer is YES, how much is Lionel Diaz due on account of unpaid 

minimum wages? 

 $_____________ 

56. If you answered “Yes” to either question 34 or question 

45, above, do you find that the Defendants acted 

willfullyknew or showed reckless disregard for whether 

the FLSA prohibited its conduct? 

Answer Yes or No _____________ 

6. Did the Erik Chavez engage in protected activity? 

Answer Yes or No _____________ 

If your answer is “No,” skip to Question 9 (re: Ruben Sierra). If your answer 

is “Yes,” go to the next question. 

7. Did the Defendants terminate Erik Chavez? 

Answer Yes or No _____________ 

If your answer is “No,” skip to Question 9 (re: Ruben Sierra). If your answer 

is “Yes,” go to the next question. 

87. Did the employer terminateretaliate against Erik Chavez 

because he complained about possible violations of the 

Fair Labor Standards Act’s minimum wage provisions? 

Answer Yes or No _____________ 

If your answer is YES, how much compensation is Erik Chavez due on 

account of his employers’ retaliation? 

 $_____________ 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 131 of

132
10 

98. If you answered “Yes” to either question 34 or question 

45, or question 87 above, do you find Defendant Ruben 

Sierra should be individually liable for the corresponding 

FLSA violation and damages? 

Answer Yes or No _____________ 

SO SAY WE ALL. 

___________________________ 

Foreperson’s Signature 

DATE: ___________________ 

Case 1:20-cv-22603-JG Document 149-1 Entered on FLSD Docket 04/28/2023 Page 132 of

132