Feng v. Soy Sauce LLC et al

Filing 42

MEMORANDUM AND ORDER: Plaintiff's 31 motion is granted in part and denied in part. Plaintiff shall submit a revised form of notice, consistent with this Memorandum and Order, by 3/18/2016. Defendant shall produce the names, last known addresses, telephone numbers, and dates of employment of potential opt-in plaintiffs to Plaintiff's counsel by 3/23/ 2016. SO ORDERED by Magistrate Judge Lois Bloom, on 3/14/2016. C/mailed. (Latka-Mucha, Wieslawa)

FILED

IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y

MAR 1~ 2015

*

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*

---------------------------------------------------------------)(

BROOKLYN OFFICE

HANMING FENG on behalf ofhimself and others
similarly situated,
Plaintiff,

MEMORANDUM AND ORDER
15 CV 3058 (ENV)(LB)

-againstSOY SAUCE LLC and GA VRIEL BORENSTEIN,
Defendants.

--------------------------------------------------------------)(
BLOOM, United States Magistrate Judge:

Plaintiff Hanming Feng brings this action on behalf of himself and all others similarly
situated against defendants Soy Sauce LLC and its owner Gavriel Borenstein to recover unpaid
wages and overtime premiums pursuant to the Fair Labor Standards Act ("FLSA or the Act"), 29
U.S.C. § 201 et seq., and the New York Labor Law ("NYLL"), N.Y. Lab. Law§ 190 et seq. and
§ 650 et seq. Plaintiff moves for: (1) conditional certification as a collective action pursuant to 29
U.S.C. § 216(b); (2) production of the names and personal information of potential opt-in
plaintiffs; (3) authorization to post and circulate a proposed notice of pendency to potential optin plaintiffs; and (4) equitable tolling of the statute of limitations pending expiration of the opt-in
period. For the following reasons, Plaintiffs motion is granted in part and denied in part. 1
BACKGROUND

According to Plaintiffs Amended Complaint, Gavriel Borenstein owns and exercises
control of the day-to-day operations at Soy Sauce LLC ("Soy Sauce"). (Am. Compl.

~~

9, 12-13,

ECF No. 12.) Soy Sauce does business as Soy Sauce Restaurant, located at 68-22 Main Street,
1
I need not issue a Report and Recommendation as a Magistrate Judge may order the relief sought in this motion.
See Patton v. Thomson Coro., 364 F. Supp. 2d 263, 265--66 (E.D.N.Y. 2005) (a magistrate judge may order
conditional certification of a collective action and class notice under the FLSA).

Flushing, New York, has an annual gross volume of sales exceeding $500,000, and purchases
and handles goods moved in interstate commerce. (Id. ~~ 8-11.)
Plaintiff worked at Soy Sauce as a chef from October 15, 2014 to April 2, 2015. (Id.~ 8.)
He alleges that he worked six days per week for a total of 62.5 hours per week, pursuant to the
following schedule: Mondays through Thursdays and Sundays, from 10:30 A.M. to 10:00 P.M.,
and Fridays, from 10:30 A.M. to 3:30 P.M. (Id. ~ 23; Pl. Aff. ~ 5, ECF No. 31-2.) As part of an
alleged common policy, Defendants underreported employees' hours on their paystubs. (Am.
Compl. ~ 25.) Defendants issued Plaintiff paystubs reflecting that he worked 30, not 62.5, hours
each week. (Id. ~ 26.) Defendants paid Plaintiff "an average" of two weekly cash payments of
$250 and $230, amounting to $480 per week. (Id.~ 27.) Plaintiff alleges that Defendants "failed
to pay Plaintiff his lawfully earned minimum wages and overtime compensation" for the hours
he worked over 40 hours per week, and the "spread-of-hours" pay due to him under the NYLL
for days he worked more than 10 hours. (Id. ~~ 26-29.) Additionally, Plaintiff alleges that
Defendants further violated New York law by failing to provide hin:t meal periods, accurate pay
stubs, and pay rate notices and to maintain accurate records. (Id.

~~

63-81.)

Plaintiff commenced this action on May 26, 2015, on behalf of himself as well as all
other similarly situated employees of Soy Sauce. (ECF No. 1.) Defendant Soy Sauce failed to
respond to Plaintiffs complaint, but Borenstein appeared pro se and answered the complaint.
(ECF No. 26.) He asserted that Soy Sauce lacked funds to hire an attorney in order to appear in
this Court. Following some discovery, Plaintiff filed the instant motion seeking conditional
certification as a collective action. (ECF No. 31.) Defendants have not opposed Plaintiffs
motion.

2

DISCUSSION
I. Conditional Certification of the FLSA Collective Action
An FLSA plaintiff may maintain an action against any employer in behalf of himself and
other employees "similarly situated" with respect to the alleged FLSA violations. 29 U.S.C.
§ 216(b); see Shahriar v. Smith & Wollensky Restaurant Gro., Inc., 659 F.3d 234, 247 (2d Cir.
2011) (explaining that the FLSA collective action provision applies only to wage claims under
the FLSA). To become a party plaintiff to such a collective action, an employee must "opt-in" by
giving "his consent in writing" and then filing his consent in the court in which the collective
action was brought. 29 U.S.C. § 216(b). There is no provision in the FLSA requiring that the
Court certify a collective action as it would a class action under Federal Rule of Civil Procedure
23. Bifulco v. Mortgage Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009) (citations omitted).
Nevertheless, the Supreme Court has upheld the district court practice of certifying collective
actions as an "exercise of the discretionary power" that "facilitate[s] the sending of notice to
potential class members." Myers v. The Hertz Coro., 624 F.3d 537, 555 n.10 (2d Cir. 2010)
(citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989)).
"[U]nlike class certification under [Rule] 23, no showing of numerosity, typicality,
commonality and representativeness need be made for certification of a representative action."
Cuzco v. Orion Builders, Inc., 477 F. Supp. 2d 628, 632 (S.D.N.Y. 2007) (citation and internal
quotation marks omitted). The FLSA standard for conditional collective action certification is
"far more lenient, and indeed, materially different .... " Cunningham v. Elec. Data Sys. Coro.,
754 F. Supp. 2d 638, 643 (S.D.N.Y. 2010) (citation and internal quotation marks omitted).
Courts within this Circuit employ a two-stage process to determine whether to certify a collective
action. See Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 367-68 (S.D.N.Y. 2007);

3

see also Myers, 624 F.3d at 554-55 ("[T]he district courts of this Circuit appear to have
coalesced around a two-step method, a method which, while again not required by the terms of
FLSA or the Supreme Court's cases, we think is sensible."). At the first stage, the conditional
certification or "notice" stage, the court determines, based on the plaintiffs pleading and
affidavits, "whether the plaintiffl] and potential opt-in plaintiffs are sufficiently 'similarly
situated' to issue notice and allow the case to proceed as a collective action through discovery."
Lynch, 491 F. Supp. 2d at 368. "During the second stage, the court undertakes a more stringent
factual determination as to whether members of the [collective action] are, in fact, similarly
situated." Id.
Plaintiffs case is in the first stage. The burden is minimal: Plaintiff "need only make 'a
modest factual showing sufficient to demonstrate that [he] and potential plaintiffs together were
victims of a common policy or plan that violated the law."' Doucoure v. Matlyn Food, Inc., 554
F. Supp. 2d 369, 372 (E.D.N.Y. 2008) (quoting Hoffman v. Sbarro, 982 F. Supp. 249, 261
(S.D.N.Y. 1997)). This standard does not require that Plaintiff and the opt-in plaintiffs be
identical in all respects, but Plaintiff "must at least provide some evidence that the proposed class
members are similarly situated .... " McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438,
443 (S.D.N.Y. 2012); see Myers, 624 F.3d at 555 ("The 'modest factual showing' cannot be
satisfied simply by 'unsupported assertions."' (citation omitted)). To that end, Plaintiff may rely
upon his "own pleadings, affidavits, declarations, or the affidavits and declarations of other
potential class members." Jeong Woo Kim v. 511 E. 5th Street, LLC, 985 F. Supp. 2d 439, 445
(S.D.N.Y. 2013) (internal quotation marks and citation omitted).
The Court draws all inferences in favor of the plaintiff at the preliminary certification
stage. Id. at 446. Because "the court does not resolve factual disputes, decide substantive issues

4

going to the ultimate merits, or make credibility determinations" at this early juncture, a
defendant cannot defeat a conditional certification by presenting conflicting factual assertions.
Lynch, 491 F. Supp. 2d at 368; see Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 407 n.6
(S.D.N.Y. 2012) ("[C]ourts in this Circuit regularly conclude that [competing] declarations do
not undermine the plaintiffs showing in the first stage of the conditional certification process.").
"The action may be 'de-certified' ifthe record reveals that [the proposed class members] are not
[similarly situated], and the opt-in plaintiffs' claims may be dismissed without prejudice."
Myers, 624 F.3d at 555.

A. Plaintiff's Individual FLSA Claims
As a prerequisite to a collective action, the named plaintiff must demonstrate that he,
himself, was a victim of the defendants' illegal pay practices. Kim, 985 F. Supp. 2d at 447 (citing
Vengurlekar v. Silverline Techs., Ltd., 220 F.R.D. 222, 230 (S.D.N.Y. 2003) (denying collective
certification where named plaintiffs were exempt from the FLSA's requirements)). First,
Plaintiff alleges that, as a chef/cook at Soy Sauce, he was not exempt from the protection of the
FLSA, but he does not detail his duties. (Am. Compl.

~~

8, 18.) This is sufficient, though only

barely, to establish his exempt status at this stage. See Kim, 985 F. Supp. 2d at 447 (finding sous
chefs allegation of exempt status sufficient at conditional certification stage despite defendants'
challenge that he performed managerial tasks).
Plaintiff asserts three claims under the FLSA: that Defendants failed to pay him
minimum wage and overtime premiums and failed to advise him of FLSA' s overtime provisions
in accordance with the FLSA. (Am. Compl. ~~ 34-41, 47-54.) Plaintiff does not state in his
affidavit how much Defendants paid him. In his Amended Complaint, he states that, on average,
he received weekly cash payments of $480. Dividing the total hours Plaintiff alleges he worked

5

on any given workweek (62.5) by Plaintiff's weekly pay, Defendants paid Plaintiff $7.68 per
hour. See United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir. 1960)
(holding that there is no FLSA minimum wage violation "if the total wage paid to [the worker]
during any given week is divided by the total time he worked that week, [and] the resulting
average hourly wage exceeds [the minimum]."). Even if proven, Plaintiff's allegations would not
establish a violation of FLSA's minimum wage provision because the minimum federal wage for
the period when Plaintiff worked was $7.25. 29 U.S.C. § 206. It is irrelevant that Plaintiff's
paystubs may not have accurately reflected that he worked 62.5 hours per week because his pay
exceeded the federal minimum wage when averaged over the hours he actually worked. See
Monger v. Cactus Salon & SPA's LLC, No. 08-CV-1817, 2009 WL 1916386, at *1 (E.D.N.Y.
July 6, 2009) ("It does not matter that an employee is required to work "off the clock" for any
given number of hours if her pay for the entire week is sufficient to maintain the statutory hourly
rate .... "). Plaintiff therefore does not establish that he was a victim of a common policy of
violating the FLSA' s minimum wage provision.
He does, however, state a violation ofFLSA's overtime payment provision. That
provision requires Defendants to pay him one-and-one half the hourly wage for hours worked
over forty hours in a week. 29 U.S.C. § 207(a)(l); 29 C.F.R. § 516. Plaintiff attests that he
worked Mondays through Thursdays and Sundays, from 10:30 A.M. to 10:00 P.M., and Fridays,
from 10:30 A.M. to 3:30 P.M, and calculates that Defendants failed to pay him 22.5 hours of
overtime premiums each week. (Pl. Aff.

~~

4-7.) This is enough to allege a FLSA overtime

violation. See DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89 (2d Cir. 2013) (requiring an
allegation that plaintiff was scheduled to work over forty hours in a given week and unpaid for
those hours beyond forty to raise a plausible FLSA overtime claim). He also sufficiently alleges

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that Defendants failed to provide him notice of the FLSA's overtime provision, in violation of 29
C.F.R. § 516.4. (Am. Compl.

ifif 52-53.)

In Plaintiffs motion for conditional certification, Plaintiff argues that the proposed class
shares Plaintiffs claims that Defendants violated FLSA's record-keeping requirements. (Mem. at
10.) The Amended Complaint only alleges that Defendants "did not properly keep records,"
without reference to the FLSA's provisions. (Am. Compl.

if 24). Plaintiff cannot raise a new

claim through a motion. I therefore find that Plaintiff has only adequately alleged a FLSA
overtime and notice claim.

B. Similarly-Situated Potential Plaintiffs
Defendants allegedly subjected Plaintiff and the proposed class members to a "common
policy of understating the work hours of Plaintiff and employees of Corporate Defendants on
their paystub records" and of "willfully failing and refusing to pay them at least the hourly
minimum wage for each [h]our of work and /or at one and one halftimes this rate for the work in
excess of forty (40) hours per workweek." (Am. Compl.

iii! 25,

31; see Pl. Aff.

if 11.)

In his

memorandum of law, Plaintiff elaborates that Defendants also violated the same NYLL and New
York Code of Rules and Regulations ("NYCRR"), with respect to him and the proposed class
members. On this basis, Plaintiff defines the proposed class for the collective action to include:
"those hourly paid, non-managerial employees of the Defendants ... who previously worked for
Defendants during the past three (3) years and who:
(i)

worked overtime during that period;

(ii)

did not receive overtime compensation at one-and-one-half the hourly rate;

(iii)

did not have their employment period properly recorded;

(iv)

did not receive vacation time as agreed upon;

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(v)

were not provided with the Time of Hire Notice detailing hiring rate of pay and of
regular pay day;

(vi)

were not provided with detailed pay stub for each payday.

(Mem. at 5, EC No. 32.)
Plaintiff improperly includes state-law claims as a basis for the FLSA collective action.
Collective actions under the FLSA encompass only FLSA violations. See Shahriar, 659 F.3d at
247. However, Plaintiff defines the proposed collective action to raise claims under the NYLL
and NYCRR for minimum wage, overtime, failure to provide a Time of Hire notice, properly
record employment periods, and to provide vacation time and accurate paystubs. 2 To bring statelaw claims on behalf of others against Defendants, Plaintiff must seek class certification pursuant
to Rule 23. See Romero v. La Revise Assocs., L.L.C., 968 F. Supp. 2d 639, 648-49 (S.D.N.Y.
2013) (limiting FLSA collective action class to FLSA claims when NYLL claims had not yet
been certified pursuant to Rule 23). Because Rule 23 certification has not been requested, I limit
my consideration to the FLSA claims Plaintiff identifies, under the FLSA's minimum wage,
overtime and notice provisions, to determine whether he is similarly situated to the proposed
class members.
Regarding the potential opt-in plaintiffs' wages, Plaintiff merely states this: that he
talked to several of his co-workers in Soy Sauce's kitchen, including two other chefs, a packager,
and an oil worker, and therefore knew that they, like him, "did not receive minimum wages and
over-times." (Pl. Aff.

if 11.) He does not provide any further factual allegations, such as who

those workers are or their pay and schedules, to support his legal conclusion that they were not
paid minimum wage. Plaintiff therefore fails to set forth even the modest factual showing that the
potential opt-in employees were not paid at or above federal minimum wage rate. Further,
2

The proposed class is also overbroad in that Plaintiffs Amended Complaint does not allege that Defendants
improperly denied him vacation time or inaccurately recorded his employment period.
8

Plaintiffs allegation that Defendants subjected his fellow workers to this same practice and
failed to pay those workers minimum wage is contradictory in the sense that Defendants paid
Plaintiff above the federal minimum wage. (See discussion infra.) Even if the potential opt-in
employees were paid below the federal minimum wage, certification of that claim would be
inappropriate because Plaintiff, who was paid at a rate above the minimum wage, would not be
similarly situated. See Bittencourt v. Ferrara Bakery & Cafe Inc., 310 F.R.D. 106, 115-16
(S.D.N.Y. 2015) ("Certification is not appropriate where putative plaintiffs are potentially
subject to separate unlawful policies involving different FLSA violations.").
However, the instant record sets forth the modest factual showing that the potential opt-in
employees, including other kitchen staff, were not properly compensated for their overtime
hours. As noted, Plaintiff asserts that fellow non-exempt, non-managerial employees at Soy
Sauce, specifically, chefs, a packager, and an oil worker, were not paid overtime premiums. (Pl.
Aff.

ilil 11-12.) Plaintiffs allegations regarding these co-workers, while lacking facts such as

the hours they worked and the payments they received, or affidavits from those workers, is not
fatal to the collective overtime claim as it was to the minimum wage claim because Plaintiffs
overtime allegations are not contradictory and Plaintiff has stated a FLSA overtime claim of his
own. See Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 322 (S.D.N.Y. 2007)
("Conditional class certification is appropriate here where all putative class members are
employees of the same restaurant enterprise and allege the same types of FLSA violations.").
Moreover, Plaintiffs assertion that his non-managerial co-workers were similarly underpaid is
bolstered by personal knowledge. See Kim, 985 F. Supp. 2d at 448 (crediting plaintiffs affidavit
to extent it relied on personal observations of how co-workers at same location were paid for
purposes of conditional certification). Unlike cases in which the collective action includes

9

workers from other locations, Plaintiff only seeks to include staff with whom he worked or who
worked in the same restaurant under the same manager as he did. Cf. Lujan v. Cabana Mgmt.,
Inc., No. 10-CV-755, 2011 WL 317984, at *4-9 (E.D.N.Y. Feb. 1, 2011) (conditionally
certifying employees at three New York restaurants based on declarations from workers
representing each location, but declining to certify employees at the three Florida restaurants
because the Court lacked "firsthand evidence of violations at the Florida restaurants during the
limitations period"); Laroque v. Domino's Pizza, LLC, 557 F. Supp. 2d 346, 356 (S.D.N.Y.
2008) (conditionally certifying employees at the store where plaintiffs worked, but declining to
certify employees at five other stores where the evidence relating to those five stores amounted
to three hearsay statements and a putative class member's "generalized allegations of
wrongdoing" regarding one of the stores). Therefore, Plaintiffs affirmation that he spoke to his
coworkers and learned that Defendants failed to pay them overtime is sufficient, at this
preliminary stage, to establish that he is similarly situated to the potential opt-in kitchen workers
regarding overtime pay. See Bowens v. Atlantic Maint. Corp., 546 F. Supp. 2d 55, 82 (E.D.N.Y.
2008) (conditionally certifying class despite lack of any corroborating evidence other than
employee's own affidavit).

Similarly, Plaintiff has sufficiently alleged that, like him, the

proposed class members did not receive notice of their rights under FLSA's overtime provision.
(Pl. Aff. ifif 14-15.)
However, to the extent Plaintiff seeks to include non-kitchen workers, such as delivery
persons, servers, and busboys, (see Troy Deel.

if 2), he does not provide any factual support for

his belief that these employees who worked in the "front-of-the house" at Soy Sauce were
underpaid in the same way that Plaintiff alleges he and the co-workers with whom he spoke
were. See Fa Ting Wang v. Empire State Auto Corp., No. 14-CV-1491, 2015 WL 4603117, at *9

IO

(E.D.N.Y. July 29, 2015) (finding plaintiffs general statement in affidavit that he knew 30 other
coworkers not paid overtime as insufficient to establish that they were similarly situated without
describing basis for knowledge, identifying their names, or describing specific conversations
with them); cf. Kim, 985 F. Supp. 2d at 448--49 (granting conditional certification on overtime
claims for kitchen workers at single restaurant based on plaintiffs and another kitchen worker's
affidavits describing discussions with potential opt-in plaintiffs regarding their unpaid overtime).
Accordingly, Plaintiff has met the minimal burden necessary at this stage for the Court to
determine that he is similarly situated to all non-exempt, non-managerial current and former
employees of Soy Sauce who did not provide direct service to customers, including chefs,
packagers, and oil workers, who did not receive overtime premiums or notice of their rights
under the FLSA overtime provision.

II. Notice of Pendency and Consent Form
The Court hereby grants Plaintiffs motion to circulate and post the proposed notice of
pendency, subject to the modifications set forth below. 3

A. Scope of Proposed Class
Plaintiff proposes that the notice of pendency of this collective action should be sent to
all non-exempt, non-managerial employees who worked at Soy Sauce, 4 such as cooks,
dishwashers, busboys, servers, delivery persons, and kitchen workers) from May 26, 2012 to the
present.

(Troy Deel.

~

2, ECF No. 33.) Because the Court has determined that Plaintiff is

similarly situated only to Soy Sauce's kitchen staff with regard to overtime and notice claims, the

3

The notice ofpendency shall reflect that I have authorized the contents of the notice, as Judge Vitaliano referred
the matter to me.
4
The notice is addressed to current and former employees of Soy Sauce and "Gabriel Borenstein." (ECF No. 31-3.)
The corrected notice should read "Gavriel Borenstein."
11

notice of pendency shall be specifically directed only to those employees and Plaintiff shall
strike reference to minimum-wage and state-law claims.

B. Time Period
Plaintiff proposes that the notice of pendency should be sent to employees who worked
for Defendants within the three years preceding the commencement of this action. (ECF No. 313 .) The statute of limitations under the FLSA is two years, "except that a cause of action arising
out of a willful violation may be commenced within three years after the cause of action
accrued." 29 U.S.C. § 255(a). "Because the statute of limitations runs for each individual
plaintiff until he consents to join the action, courts generally permit plaintiffs to send notice to
those employed during the three year period prior to the date of the Order or to the mailing of the
notice." Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445, 451 (S.D.N.Y. 2011)
(citations omitted); see Anglada v. Linens 'N Things, Inc., No. 06 Civ. 12901 (CM)(LMS), 2007
U.S. Dist. LEXIS 39105, at *26 (S.D.N.Y. April 26, 2007) ("[U]sage of the three year date from
the issuance of the notice is more in keeping with § 256(b)."). Here, Plaintiff alleges that
Defendants willfully violated the FLSA; a three-year look-back period is therefore appropriate
for the proposed class. See Romero, 968 F. Supp. 2d at 648-49 (limiting the proposed class to
employees who worked for the defendant up to three years prior to filing of the complaint
because that is the extent of the statute of limitations for willful violations of the FLSA);
Fasanelli, 516 F. Supp. 2d 317 at 323 (sending notice to individuals employed by defendants
over the past three years). Accordingly, the notice of pendency shall be directed to potential optin plaintiffs who worked at Soy Sauce in the three years preceding the date of this Order. The

12

notice shall be modified to replace the date "May 26, 2012 through the present" with the dates
including three years prior to and up to the date of this Order. 5
C. Language Concerning Notice of Overtime Rights
The Court notes that Plaintiffs proposed notice of pendency and consent form does not
reference the FLSA notice violation. Plaintiff sought, and the Court has granted, conditional
certification as a collective action based on Defendants' failure to provide notices to employees
of their rights under the FLSA's overtime provision. Accordingly, the notice of pendency and
consent form shall refer to that alleged failure, in addition to Defendants' alleged failure to
properly compensate for overtime hours.
D. Rights and Obligations of Opt-in Plaintiffs
The notice of pendency should include "a neutral and non-technical reference to
discovery obligations, to insure that opt-in plaintiffs understand that their participation would
entail greater obligations than participation in some Rule 23 class actions." Lujan, 2011 WL
317984, at *11. Plaintiffs proposed notice contains such a statement, informing recipients that
"[a]s a result of participating in [the FLSA] portion of this lawsuit, [he or she] may be required to
provide written responses to questions asked by Defendants, provide evidence to support [their]
claims, and testify at a deposition or at trial." (ECF No. 31-3.) The notice also adequately
informs potential opt-in plaintiffs that they may retain their own counsel and are not required to
designate plaintiffs law firm as their counsel. (Id.); see Garcia, 678 F. Supp. 2d at 95 (modifying
the proposed notice "so that potential plaintiffs are informed that they may retain their own
counsel, should they choose to join the within litigation, as an alternative to plaintiffs' counsel's
firm").
5

Because this manner of calculating the three-year statute of limitations effectively tolls the FLSA statute of
limitations during the opt-in period, the Court need not address Plaintiffs request to toll that period. (See Mero. at
7.)
13

E. Translation of Notice
Plaintiff proposes translating and publishing the notice of pendency and consent form in
English and Chinese. (Mem. at 13.) However, he states that the "majority of the employees of the
Defendants are Chinese and Hispanic immigrants, whom are not well versed in the English
language . . . ." The notice of pendency and consent form, as modified herein, shall therefore be
translated and published in not only English and Chinese, but also in Spanish.
F. Submission of Consent Forms
Plaintiff proposes that opt-in plaintiffs should send the signed consent forms to Plaintiffs
counsel. (ECF No. 31-3.) However, "[r]ecent cases in this district have suggested that such a
procedure implicitly discourages opt-in plaintiffs from selecting other counsel." Lujan, 2011 WL
317984, at

*13

(modifying plaintiffs' proposed notice to direct opt-in plaintiffs to send their

consent forms to the court) (citations omitted). Accordingly, the notice of pendency shall direct
opt-in plaintiffs to file their consent forms with the Clerk of Court. The Clerk of Court shall
electronically file the signed consent forms which shall notify counsel and the pro se Defendant
that a plaintiff has opted-in.
G. Posting of the Notice of Pendency and Consent Forms
Plaintiff requests that the Court order Defendants to post the notice of pendency and
consent forms in a conspicuous location at Soy Sauce. (Mem. at 14.) "Courts routinely approve
requests to post notice on employee bulletin boards and in other common areas, even where
potential members will also be notified by mail." Whitehorn, 767 F. Supp. 2d at 449 (citations
omitted). Accordingly, for the duration of the opt-in period, Defendants shall post the notice of
pendency and consent forms, as modified herein, on the employee bulletin boards and in other
common areas conspicuous to all employees in Soy Sauce.

14

III.Production of Names and Personal Information of Potential Opt-In Plaintiffs
Plaintiff moves for Defendant Borenstein to produce the names and personal information,
including those individuals' dates of birth, Social security numbers, dates of employment, and
last known mailing addresses, telephone numbers, and e-mail addresses for all potential opt-in
plaintiffs who worked at Soy Sauce between December 31, 2011, and the date this Court decides
this motion. (Mot. at 1.) Courts within this Circuit typically grant requests for the production of
the names and last known addresses of potential opt-in plaintiffs when

gr~ting

a motion for

conditional certification as a collective action. See Cruz v. Lyn-Rog Inc., 754 F. Supp. 2d 521,
526 (E.D.N.Y. 2010) (citing cases); Capsolas v. Pasta Res .. Inc., No. 10 Civ. 5595, 2011 WL
1770827, at *5 (S.D.N.Y. May 9, 2011) (directing defendants to produce potential opt-in
plaintiffs' names, addresses and telephone numbers); In re Penthouse Exec. Club Comp. Litig.,
No. 10 Civ. 1145, 2010 WL 4340255, at *5-6 (S.D.N.Y. Oct. 27, 2010) (finding the disclosure
of names, addresses, telephone numbers, and dates of employment to be "essential to identifying
potential opt-in plaintiffs"). The Court therefore deems Plaintiffs request for names, last known
addresses, telephone numbers, and dates and location of employment to be reasonable and
appropriate.
However, production of potential opt-in plaintiffs' dates of birth, e-mail addresses, and
Social Security numbers is unnecessary at this juncture and may violate the employees' privacy
rights, particularly in light of the fact that the parties do not have a confidentiality agreement in
place. See Colozzi v. St. Joseph's Hosp. Health Ctr., 595 F. Supp. 2d 200, 201 (N.D.N.Y. 2009)
("[P]laintiffs have no need for the additional, inherently private information sought, including email addresses, telephone numbers, social security numbers, and dates of birth."). If Plaintiff is
unable to effectuate notice on some potential opt-in plaintiffs with the information that is

15

produced, Plaintiff may renew his application for additional information regarding those specific
employees. See Whitehorn, 767 F. Supp. 2d at 448 ("While courts often decline to allow
discovery of social security numbers due to privacy concerns, it is generally accepted that such
discovery is permitted where Plaintiff can

~emonstrate

that names and contact information are

insufficient to effectuate notice.").
Further, it is unclear why Plaintiff seeks information regarding employees who worked
for Soy Sauce outside the FLSA statute of limitations. Accordingly, Defendant Borenstein shall
provide Plaintiff with the names, last known addresses, telephone numbers, and dates of
employment of all potential opt-in plaintiffs who have worked for Soy Sauce within the three
years preceding the date of this Order.
CONCLUSION

For the reasons set forth above, Plaintiffs motion is granted in part and denied in part.
Plaintiff shall submit a revised form of notice, consistent with this Memorandum and Order, by
March 18, 2016. Defendant shall produce the names, last known addresses, telephone numbers,
and dates of employment of potential opt-in plaintiffs to Plaintiffs counsel by March 23, 2016.
SO ORDERED.

/S/ Judge Lois Bloom

Y6rs'BLooM:
United States Magistrate Judge
Dated: March 14, 2016
Brooklyn, New York

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