Chang et al v. Wang et al

Filing 45

MEMORANDUM and ORDER: Plaintiffs motion 34 to conditionally certify a collective action is GRANTED, the parties are ordered to confer and submit a joint notice, and defendants are ordered to provide plaintiffs with the described identifying information for potential class members. granting 34 Motion to Certify FLSA Collective Action. Ordered by Judge Frederic Block on 8/25/2016. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------x
SHANG SHING CHANG, JIE LI,
XIAOXI XIE, BIN YANG, LONG CHEN,
YA XU, YI MING MA, LU YANG, on
MEMORANDUM AND ORDER
behalf of themselves and all others
15-CV-4385 (FB) (MDG)
similarly situated,
Plaintiffs,
-againstCLEAN AIR CAR SERVICE &
PARKING CORPORATION, CLEAN
AIR CAR SERVICE & PARKING
BRANCH ONE, LLC, CLEAN AIR CAR
SERVICE & PARKING BRANCH TWO,
LLC, CLEAN AIR CAR SERVICE &
PARKING BRANCH 3, LLC, CLEAN
AIR CAR SERVICE & PARKING
BRANCH 5, LLC, CLEAN AIR CAR
SERVICE & PARKING BRANCH 7,
LLC, CLEAN AIR CAR SERVICE &
PARKING BRANCH 6, LLC, KEVIN
WANG, John Doe, and Jane Doe #1-10,
Defendants.
--------------------------------------------------x

Appearances:
For the Plaintiffs/Counter Defendants:
KELI LIU
WILLIAM M. BROWN
JIAN HANG
Hang & Associates, PLLC
136-18 39th Ave, Suite 1003
Flushing, NY 11354

For Defendants/Counter Claimants:
JAMIE CHEUNG
Law Offices of Seigel Wang &
Associates, LLP
136-20 38th Ave, Suite 10J
Flushing, NY 11354
STANISLOV SHAROVSKIY
Clean Air Car Service and Parking
Corp.

136-20 38th Ave, Suite 10J
Flushing, NY 11354
MARC J. MONTE
Wingate Kearney & Cullen LLP
45 Main Street, Suite 120
Brooklyn, NY 11201
BLOCK, Senior District Judge:
Shang Shing Chang, Jie Li, Xiaoci Xie, Bin Yang, Long Chen, Ya Xu, and Yi Ming
Ma (collectively, “plaintiffs”) filed this action under the Fair Labor Standards Act
(“FLSA”) and New York Labor Law (“NYLL”) against Clean Air Car Service & Parking
Corporation (“Clean Air Corp.”),1 Kevin Wang, and John and Jane Doe #1-10
(collectively, “defendants”) seeking unpaid overtime and spread of hour wages. Plaintiffs
move for conditional certification of a collective action2 and seek authorization to
distribute notice to potentially similarly situated employees to provide an opportunity to
opt into this action. For the reasons that follow, plaintiffs’ motion to conditionally certify
the collective action is GRANTED and the notice is to be modified as described below.
I.
Defendants own and operate Clean Air Corp., a business located in Flushing,

1

The complaint lists “Clean Air Car Service & Parking Corporation,” as
well as branches #2, 3, 5, 6, & 7 as defendants in the action.
2

Plaintiffs reserve the right to later seek class certification pursuant to Fed.
R. Civ. P. 23 for the NY Labor Law claims.
2

Queens, which provides “wheelchair/handicap accessible vehicles for transportation.”
Compl. ¶ 15. There are eight named plaintiffs who were or are currently employed by
Clean Air Corp. in various positions, including driver, driver’s trainer, administrative
assistant, valet, inspector, and dispatcher.
According to his declaration, which was submitted by plaintiffs in support of this
motion, Chang was employed by defendants from October 14, 2013 to October 24, 2014
as a driver and a driver’s trainer. Chang worked from fifty-five to fifty-seven and a half
hours per week. For the first three weeks of his employment, Chang was paid a pro rata
annual salary of $33,000; however, the remainder of his employment was paid a pro rata
annual salary $40,000. Chang asserts that he was not paid for his work in excess of 40
hours per week, nor did he receive a wage statement.
Similarly, Xu states that he was employed as a driver, as well as an inspector and
a dispatcher for defendants from March 9, 2015 to July 2, 2015. Xu worked 18 hours as
an inspector, but otherwise his hours ranged, including fifty-three hours per week as a
dispatcher, and fifty-seven and a half hours per week as a driver. His hourly wages ranged
from $9.37 for the first two months, was raised to $11 per hour for May and June 2015,
but reverted to $9.37 per hour for July, independent of the position he worked. Xu asserts
that he was not paid for his work in excess of 40 hours per week, nor did he receive a
wage statement.

3

Additionally, according to his declaration, Chen worked as a valet for defendants
from April 2, 2014 until November 27, 2014. Chen’s hours ranged from forty-three to
forty-seven hours per week, paid at an hourly rate of $9.37. Chen states that he was not
paid for all of his hours worked, nor was he paid for work in excess of 40 hours per week.
Lu Yang, Bin Yang, Xie, and Ma all provide additional declarations of a similar
tenor: they each worked in excess of forty hours per week, but were not compensated for
the additional work and did not receive proper wage statements. Bin Yang, Lu Yang and
Xie were drivers at Clean Air Corp., and Ma worked as a valet. Moreover, Chen, Ma,
Yang, and Xu allege that they never received break time during the work day and that the
defendants required them to create fraudulent time records to reflect a break.
Exclusive of each other, plaintiffs are aware of at least ten other individuals, drivers,
administrative assistants, trainers, valets, inspectors, and dispatchers who performed the
same or similar work as plaintiffs did for defendants, worked more than forty hours, and
were not paid overtime compensation. 3
II.
Plaintiff’s Motion to Conditionally Certify a Collective Action
The FLSA allows a plaintiff to sue on behalf of “other employees similarly
situated,” provided that the other employees give their consent in writing. 29 U.S.C.
3

Plaintiffs name Jun Fu, Zhe Zhao, Wei Zhao, Johnny, Chang Sheng Gao,
Michael, Yong Li Qi, Tian De Wang, Hong Zhu, and Shing Ming Li as other
workers who are similarly situated.
4

§ 216(b). In this context, “similarly situated” means that the named plaintiff and the
potential opt-in plaintiffs “together were victims of a common policy or plan that violated
the law.” Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997).
Certification of a collective action is a two-step process. “The first step involves
the court making an initial determination to send notice to potential opt-in plaintiffs who
may be ‘similarly situated’ to the named plaintiffs with respect to whether a FLSA
violation has occurred.” Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010). If the
Court makes such a determination, the potential plaintiffs must be given notice of the
action and an opportunity to opt in. Because the determination is only preliminary and
must necessarily be made early in the proceedings, the first step imposes on the named
plaintiff the minimal burden of making a “modest factual showing” based on the pleadings
and affidavits. Id.
Once the opt-in period is over and discovery is completed, the court—usually at the
defendant’s instance—applies “a more heightened scrutiny.” Jacobs v. N.Y. Foundling
Hosp., 483 F. Supp. 2d 251, 265 (E.D.N.Y. 2007). If the facts developed during discovery
refute the step-one determination, the court will decertify the collective action and only
the named plaintiffs’ claims will proceed, and opt-in plaintiffs can file a separate action.
See id.
Plaintiffs move to conditionally certify a collective action at the first, preliminary
step. In addition to the allegations made in the complaint, they submit affidavits from
5

seven Clean Air Corp. employees. Each affiant claims he regularly worked in excess of
forty hours per week, yet were never paid for hours worked in excess of forty. The
affidavits also state that the employees were not furnished with pay stubs that accurately
reflected their hours worked. Moreover, the affidavits reflect similar pay structures for
the various positions at Clean Air Corp. and demonstrate an overlap of work duties.
Defendants argue that neither the complaint, nor these affidavits are sufficient to
establish that plaintiffs are similarly situated to the putative collective class. Significantly,
the requirements of Fed. R. Civ. P. 23 do not apply to the approval of a collective action,
and thus “no showing of numerosity, typicality, commonality, and representatives need
be made” as a pre-requisite to approval. Schaefer v. M & T Bank Corp., 122 F.Supp.3d
189, 198 (S.D.N.Y. 2015). All that plaintiffs need show at this stage is that they and the
potential opt-ins “were victims of a common policy or plan that violated the law.”
Amendola v. Bristol-Meyers Squibb Co., 558 F.Supp.2d 459, 467 (S.D.N.Y. 2008).
Plaintiffs have made the necessary showing by alleging that they were paid similar
amounts regardless of position, required to sign fraudulent records, and though they
rotated positions, they were paid according to the same policies. For example, Chang, Li,
Xie, Bin Yang, Lu Yang, and Xu were all drivers for the company, performing the same
duties, and received the same $9.37 hourly rate of pay. Chen and Ma were also paid $9.37
per hour for their work as valets, as was Xu when he worked as an inspector and
dispatcher. Because there is a significant job overlap and a similar pay structure, the
6

plaintiffs have demonstrated a sufficient “factual nexus” between them and other
employees who were also subject to the defendants’ alleged failure to pay overtime wages.
Young v. Cooper, 229 F.R.D. 50, 54 (S.D.N.Y. 2005). Notably, plaintiffs need not show
that the potential class members have identical positions for class certification to be
granted; they can be “similarly situated despite distinctions in job title, function, or pay,”
Jirak v. Abbot Laboratories, 566 F.Supp.2d 845, 849 (N.D.Ill. 2008), as they are here.
Plaintiffs’ motion to conditionally certify the collective action is granted.
Because defendants advanced several objections to the proposed notice to potential
plaintiffs, the parties shall appear by September 9, 2016 to address those objections. If,
however, the parties are able before that date to confer and jointly create a notice
satisfactory to both parties, they can distribute the notice without returning to court.
Plaintiffs request an order directing defendants to produce the names, last known
mailing address, alternate address (if any), all known telephone numbers, social security
numbers and dates of employment for all potential class members employed by them for
the relevant time period. Defendants object to plaintiffs’ request to the extent that the
disclosure of social security numbers would violate the employees’ privacy rights.
In general, it is appropriate for courts in collective actions to order the discovery
of names, addresses, telephone numbers, email addresses, and dates of employment of
potential collective members. See, e.g., Sharma v. Burberry Ltd., 52 F.Supp.3d 443, 465
(EDNY 2014). With regard to social security numbers, however, courts typically decline
7

to allow discovery in the first instance. See id. Thus, the Court directs defendants to
provide plaintiffs with a list of the names, addresses, telephone numbers, email addresses,
and dates of employment for all potential class members employed by them for the
relevant time period. The list is to be furnished within 10 days of the entry of this Order
and is to be treated by the parties as confidential.
III.
In sum, plaintiffs motion to conditionally certify a collective action is GRANTED,
the parties are ordered to confer and submit a joint notice, and defendants are ordered to
provide plaintiffs with the described identifying information for potential class members.
SO ORDERED.
/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
August 25, 2016

8