Bonn-Wittingham et al v. Project O.H.R. (Office for Homecare Referral), Inc. et al

Filing 48

OPINION AND ORDER re 37 Motion to Dismiss for Failure to State a Claim. The motion to strike class allegations is denied. The motion to dismiss is granted in part and denied in part. The motion to dismiss is granted with respect to defendant Met Council. SO Ordered by Judge Allyne R. Ross on 12/12/2016. (Ramesar, Thameera)

VfiF

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

JUDY BONN-WITTINGHAM; MELVA JONES;
GERMITA FREMONT; MAISIE BECKFORD;LENA
BARTON;DULCIE JONES; UNICA GEORGE;GRETA
KEISER; ENID LEWIS; MARIE PAULA EUGENE;
GLORIA BENT; GRACE YARDE;LINDA
HENDERSON; VESTA DOUGLAS;EVELYN CIMA;
MERLE HOYTE;OCTAVIA CRICK; ALBERTINA
THOMAS;UNICEY DESHIELDS;SUZY DORCE;
IMMACULA AUGUSTE; MARY P. EUGENE;
ALBERTHA FENELON;PARBATI SINGH; VERNA
RICKETTS; GILLIAN BOWEN;FARIL BEST;
CORNELIOUS GREEN; MARGARET YOUNGE;

GLADYS ENRIQUEZ; OLIVE DUTCHIN; MIGNAN
BARRY;SHERAN JAMES; DEBBIE ANN BROWN;
PAULINE GRANT;CATHERINE JESSAMY;BEVERLY
CALDWELL;IRMA ANDERSON; MARIE AFREH;
SHIRLEY EDWARDS;OMODELE JOHNSON;THEMA
JAMES; ADALSIE HOUSTON;ROSEANNE
CRANDON;CECILIA BEST; MARTHA GROVES;
LAUNA JONES; ANGELA ARMSTRONG;lONIE
SENIOR; YOLANDE JEAN-BART; MORINE WRIGHT;
YVONNE LEWIS; ANITA LUBIN;ELAINE CLARKE;
MARIE FLEURIMONT; MARGARET COTTERELL;
MARIE YANICK JOSEPH; ELLA POMPEY; MYRNA
THOMAS; MARIE-L GILLES; EUNICE STAFFORD;
MARIE MILORD; MARIE D.PIERRE; MERLE LOPEZ;
BEVERLINE GRANT;ELAINE TAYLOR;LINNETT
WILLIAMS; ROXANNE CAMBRIDGE;KATHLENE
MORGAN;SAWARIE RAMLOCHAN;ANNE MARIE
MORGAN;LEONIE HUSSETT; LINETTE CORNWALL;
FAY MCKENZIE; MARIE DORSAINVILLE; CARMEL
ANDERSON; YOLANDA GAYLE;PAULINE CLARKE;
ALVIRA HENRY;JOAN LEACOCK;LYNETTE
VYENT; MARIE MONPREMIER;SYLVIA HOYTE;
UNA SEALE;LUCY INEUS;LORENTE SIMEON;
PEARLINE DONALDSON-REID; BETTY ANNE
ALEXANDER;OLGA CADET;CARMEN POWNALL;
JUDY TAYLOR;LYNETTE A. WILLIAMS;FLORENCE
CUVILLY; JEANETTE BRICE; CAROLINE LONG;
MARJORIE JOHNSON; GERDA ANTOINE;DORETTA
THOMAS; WALTERINE LEVIUS; VELDA MAYERS;
ELIZA HAMILTON; YVONNE MACK;ISOLYN

16-CV-541 (ARR)(JO)
NOT FOR ELECTRONIC

OR PRINT PUBLICATION
OPINION & ORDER

PALMER; VANETTA GRANT;PATRICIA COSMAS;
DONNA HEADLEY;CLAUDETTE GRIMES; SEORAJNI
PERSAUD;NEELA WARDEN;EILEEN TUCKER;
ANNETTE DAVIS; CARMEN PELZER; ANN SABAL;
JACQUELINE ELLIS; JOAN MARAGH;SYLIVA
PETERS;JUILETTE HAMILTON; MARIE LAGUERRE;
TANISHA GOODEN;IMMACULA DORISMOND;
ELSIE COLLINS; BEVERLY ROYAL MCPHERSON;
AUDREY CROSDALE; MARIYA SUDNISHIKOVA;
WALENTINA RUSZCZYK;HODA HASSANE;

HUGUETTE NELSON;SANDRA MCINTOSH;
YVELINE M.BEAUCHAMP;JULIETH MELBOURNE;
ADELINE JERMAIN; GISLAINE JOCELYN;
MIROSLAWA BARTOLD; MARINA KISINA; MARINA
BESSARABOVA; MARTHE LATOUR;JEANINE ELIE;
MARIE LONGUEFOSSE; YPPOLIA DECOPAIN;
LUDMILLA ARMONAVICA;ESTHER LOPEZ;JANINA
WERYNSKA;CONSESORA LIRIANO; MARIANELA
SORIANO;DIGNA GARCIA;PAULA GARCIA;
MERCEDES GARCIA; LIDIYA BERDNKOVA;
KRYSTYNA BUNKOWSKA;VITOLD STANKEVICH;
ZOIA STANKEVITCH; ANATALIE JEAN;ROMANA
JAVIER; ANA M.GOMEZ;CANDIDA PAREDES;
MARIE GRAND-PIERRE; ALMA ARIZA; CRYSTAL
EDWARDS;PRISCILLA JENKINS; TERESA
RUDNICKI;BARBARA ROSLANIEC;JEMMA LEWIS;
SOPHIBUNBURY;CARMEN TORIBIO;DANUTA
MALMON;NELIKORINTELI; ASYA CHERNINA;
DAISY CASTILLO;JOSEFINA ARIAS; MARIE
PLAISIR;EUGENEA GORBACHEVA;FARA CHACAN;
BARNO AKHTAMOVA;SVETLANA SHAPOSHNIK;
and LYUDMILLA ARTANOSHINA,
Plaintiffs,

on behalfofthemselves and all others similarly situated
-againstPROJECT O.H.R.(OFFICE FOR HOMECARE
REFERRAL),INC.; METROPOLITIAN NEW YORK
COORDINATING COUNCIL ON JEWISH POVERTY;
andD'VORAHKOHN,
Defendants.
X

ROSS,United States District Judge:

Plaintiffs are home health care workers who bring, individually and as putative class

representatives, federal and state law claims against their former employer for unpaid wages and
other labor law violations. Fourth Am. Compl.& Class Action Compl.,EOF No.43("FAG").

On July 1,2016, defendants moved to dismiss the complaint and strike class allegations. Notice
Mot. Dismiss Am.Compl. Pursuant Fed. R. Civ. P. 12(b)(6)& Strike Class Allegations, ECF

No. 37. The court subsequently held a conference with the parties, during which plaintiffs
agreed to file their last and best complaint. Tr. OfProceedings(Oct. 4, 2016), Suppl. Decl.
Kevin J. O'Connor, Esq. Supp. of Mot. Dismiss Am.Compl. Pursuant Fed. R. Civ. P. 12(b)(6)&
Strike Class Allegations Ex. A,ECF No.44-2, at 5:14-19, The "Fourth Amended Complaint"

was filed on October 18,2016. FAC.' Defendants renewed their motion to dismiss. Suppl.
Mem. Law Supp. Defs.' Mot. Dismiss "Fourth" Am.Compl.,ECF No.44("Defs.' Suppl.
Mem."). As set forth below, this motion is granted in part and denied in part.
BACKGROUND

The plaintiffs allege the following facts, taken as true for the purposes ofthis motion.
Defendants Project O.H.R.(Office for Homecare Referral), Inc.("OHR")and Metropolitan New
York Coordinating Council on Jewish Poverty("Met")are domestic nonprofit corporations

providing homecare services to elderly and disabled persons. FAC

13-14. Defendant

D'Vorah Kohn is the Executive Director of OHR and a principal of Met. Id H 15. Defendants
employed plaintiffs as home healthcare workers. Id Tf 18. The FAC asserts claims under the
New York Labor Law("NYLL")and the Fair Labor Standards Act("FLSA"),29 U.S.C. §§ 201

' title plaintiffs gave to their complaint is incorrect, as there have been only three
The
amendments.

et seq.. concerning wages and unpaid overtime. Id

3-4.

According to the complaint, plaintiffs'job duties included

personal care services, such as assistance with walking, bathing, dressing,
personal grooming, meal preparation, feeding and toileting; heavy and light
cleaning, such as vacuuming, mopping, dusting, cleaning windows,cleaning
bathrooms, doing laundry and taking out garbage; shopping; running errands;
escorting clients; and taking care of household visitors and pets.
Id. 120. Twenty-five percent or more of plaintiffs' time was spent performing "general
household work" including "heavy cleaning tasks such as vacuuming, mopping, dusting,

cleaning windows, appliance cleaning, cleaning living areas, bathrooms, hallways and common
areas; and taking out garbage and cooking for and cleaning for client relatives, pets and guests."
Id 1121.

Some plaintiffs worked twenty-four hour shifts("sleep in" shifts) during which

"Defendants required Plaintiffs to stay overnight at the residences of Defendants' clients and
monitor and attend to them throughout the shift." Id K 27. During such shifts, plaintiffs were
required to "constantly attend to the client(s)," id K 28,and "rarely if ever received
uninterrupted, continuous and completely relieved of duty sleeping and meal periods," id H 33.
When plaintiffs worked sleep in shifts, defendants automatically deducted eight hours per shift
for sleep and three hours per shift for meals. Id 134.
Defendants paid plaintiffs $10/hour on weekdays and $11.25/hour on weekends, except

that during sleep in shifts plaintiffs earned a daily rate of$136.95 on weekdays and $157.95 on
weekends. Id fl 29-30. The FAC alleges particular weeks during which various plaintiffs were
paid less than minimum wage and no overtime after working several overnight shifts. Id UK 3844. For example,some plaintiffs allegedly worked three twenty-four hour shifts in a week but

were paid only $410.85 for the week. Id K 38. The FAC also alleges particular weeks during

which some plaintiffs worked several twelve-hour shifts and were not paid overtime. Id.

45-

47.

The FAC further alleges that defendants failed to provide an annual notice of pay rates
and a statement ofthe hours worked and pay rates with each wage payment. Id.

51-52.

At all relevant times, OHR and Met shared "corporate resources, owners, assets,

liabilities, funds, bank accounts, office space, facilities, equipment, contracts, officers, directors,

employees and contractors." Id.^ 17. As executive director of OHR,defendant Kohn controlled
the conditions of plaintiffs' employment, including hiring and firing, evaluating, and setting
schedules. Id|15.
DISCUSSION

In considering a motion to dismiss made pursuant to Rule 12(b)(6), the court must accept

all factual allegations in the complaint as true and must also draw all reasonable inferences in
favor ofthe plaintiff. Lundv v. Catholic Health Svs. of Long Island Inc.. 711 F.3d 106,113(2d
Cir. 2013). The complaint's allegations, however,"must be enough to raise a right to relief
above the speculative level." Bell Atlantic Corp. v. Twomblv.550 U.S. 544,555(2007). Only a
"plausible claim for relief survives a motion to dismiss." LaFaro v. New York Cardiothoracic
Grp.. 570 F.3d 471,476(2d Cir. 2009). Thus courts are "not bound to accept as true a legal
conclusion couched as a factual allegation," and "[t]hreadbare recitals ofthe elements of a cause
of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal. 556 U.S.
662,678(quoting Twomblv. 550 U.S. at 555).
I.

Companionship Exemption to the FLSA

The parties contest whether plaintiffs' and the putative class members' claims are barred

by the "companionship services" exemption to the FLSA.^ This exemption provides that the
requirements ofthe FLSA do not apply to "any employee employed in domestic service

employment to provide companionship services for individuals who(because of age or infirmity)
are unable to care for themselves." 29 U.S.C. § 213(a)(15). The regulations in force during most

ofthe time relevant to the complaint define "companionship services" as "fellowship, care and
protection" including "household work related to the care ofthe aged or infirm person...[or]
performance of general household work: Provided, however,[t]hat such work is incidental, i.e.
does not exceed 20 percent of the total weekly hours worked." 29 C.F.R. § 552.6(effective until
January 1,2015)(italics in original).

The Department of Labor("DOL")further clarified the difference between work related
to the "personal care" ofthe patient and "general household work" in a March 15, 1995 opinion
letter. It states that "such activities as cleaning the patient's bedroom, bathroom or kitchen,

picking up groceries, medicine, and dry cleaning would be related to personal care ofthe patient"
which would be "the type of household work that would be exempt work."

U.S. Dep't of

Labor, Opinion Letter on Fair Labor Standards Act(March 16,1995), 1995 WL 1032475, at *1
("DOL Letter"). The letter continues:"However, activities involving heavy cleaning such as
cleaning refngerators, ovens, trash or garbage removal and cleaning the rest ofa 'trashy' house
would be general household work or nonexempt work that is subject to the 20 percent time
limitation." Id,

^ The parties also dispute whether this issue is properly before the court. Defendants
argue that the court should address the exemption. S^ Defs.' Mem.Law Supp. Mot. Dismiss
Second Am. Compl.,ECF No. 37-1, at 10. Because I determine that the pleading standard is met
with respect to the companionship exemption,I do not address plaintiffs' argument that, because
the companionship exemption is an affirmative defense, plaintiffs are not required to plead facts
negating it.
Pis.' Mem. Law Opp'n to Defs.' Mot. to Dismiss Under Rule 12(b)(6)& Strike
Class Allegations, ECF No. 39, at 17.

Under new regulations effective January 1, 2015, only "fellowship and protection"
services are exempt from FLSA protection. 29 C.F.R. § 552.6 (effective January 1,2015). The
"provision ofcare" to elderly or infirm individuals, such as assistance with the activities of daily
living, meal preparation and light housework, is exempt from the FLSA only if"provided
attendant to and in conjunction with the provision offellowship and protection and ifit does not
exceed 20 percent ofthe total hours worked per person and per workweek." Id The current
regulations, which exclude light housework from the companionship exemption,exempt fewer
employees than the previous regulations. Therefore, any complaint that adequately pleads the
inapplicability ofthe companionship exemption under the old regulations meets the requirements
ofthe new regulations as well.
This court recently considered the pleading requirements plaintiffs must meet to

overcome the companionship services exemption under the pre-2015 regulations. In Cowell v.
Utopia Home Care. Inc.. the defendant argued on a motion to dismiss that "Plaintifffail[ed] to
indicate the time she spent doing non-exempt work,or identifying the weeks in which the nonexempt work was performed." 144 F. Supp. 3d 398,403(E.D.N.Y. 2015). The court rejected

this argument,finding that "the pleading standard do[es] not require Plaintiff to specifically
allege the particular time of her day or week spent on general household duties." Id. at 404.
Here, defendants argue that the tasks described as nonexempt work comprising more than

twenty percent of plaintiffs' workweeks "are not all ofthe type that fit within the exemption."
Defs.' Mem. Law Supp. Mot. Dismiss Second Am. Compl.,ECF No. 37-1 ("Defs.' Mem."),at
14. Paragraph 21 ofthe FAC,which lists examples of work described as "general household

work" on which "Plaintiffs and the others regularly spent 25% or more oftheir time," includes
only two activities - cleaning bathrooms and cooking - which the Department of Labor

described as related to the "personal care" ofthe patient, and therefore exempt from the FLSA.

The remaining tasks described in paragraph 21 are nonexempt"heavy cleaning," drawing all
reasonable inferences in favor ofthe plaintiffs. DOL Letter; FAC H 21.

Therefore, plaintiffs allege "the type of work [they] performed, which indicates it is in the
nature of'general household work,' and that [they] spent [one-quarter] of[their] total hours
worked on such tasks." Cowell. 144 F. Supp. 2d at 404;
^FAC ^ 21. As in Cowelk "such

allegations sufficiently state a plausible claim [that plaintiffs are] not covered by the exemption."
Id.: see also Lamur v. Sunnvside Cmtv. Servs.. Inc.. No. 1 l-cv-4439,2012 WL 3288770, at *3

(E.D.N.Y. Aug. 9,2012)(denying motion to dismiss where the plaintiff alleged spending

approximately one-third of her working week on, inter alia,"general household cleaning,
including of external hallways, stairs, and common areas"). The motion to dismiss is denied on

this ground.^
II.

Failure to Pay Overtime Under FLSA and NYLL

The FLSA mandates that employees receive at least time and a halffor any hours worked
in excess offorty per week. 29 U.S.C. § 207(a). The NYLL adopts the same standard. N.Y.
Comp. Codes R.& Regs. tit. 12,§ 142-2.2. The same pleading standards apply to violations of
the FLSA and NYLL. Lonez-Serrano v. Rockmore. 132 F. Supp. 3d 390,403(E.D.N.Y. 2015).

The Second Circuit recently published a trio ofcases addressing the pleading
requirements to state a claim for unpaid overtime in the healthcare industry. In Lundv. the

^ The NYLL also exempts certain employees providing companionship services, but
"sleep-in home attendants employed by ... vendor agencies" are not exempt from the NYLL's
coverage. Severin v. Project OHR.Inc.. No. 10 Civ. 9696(DLC),2012 WL 2357410, at *5
(S.D.N.Y. June 20,2012)(quoting Settlement Home Care. Inc. v. Indus. Bd. of Appeals ofthe
Dep't ofLabor. 542 N.Y.S.2d 346, 347(N.Y. App. Div. 1989)). Defendant does not argue that
plaintiffs are exempt from the NYLL's overtime and minimum wage requirements.
8

Second Circuit held that "in order to state a plausible FLSA overtime claim, a plaintiff must

sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in
excess ofthe 40 hours." 711 F.3d at 114. The Lundv complaint detailed plaintiffs' approximate

work schedules, including estimated time working over meal breaks, during trainings and after
scheduled shifts. Id. at 114-15. However,"[t]he allegations...failed because of arithmetic:

tallying the plausible factual allegations,[the court] could not get beyond forty hours in any
given week, and therefore to a plausible claim for overtime." Deiesus v. HF Mgmt. Servs.. LLC.
726 F.3d 85,88-89(2d Cir. 2013)(describing Lundv. 711 F.3d 106).
In Nakahata v. N.Y.-Presbvterian Healthcare Svs.. Inc.. the Second Circuit affirmed the

district court's dismissal ofa FLSA overtime claim. 723 F.3d 192(2d Cir. 2013). Plaintiffs

alleged that defendants did not pay them for hours worked during meal breaks, trainings, before
shifts and after shifts. Id. at 196-97. The Second Circuit held dismissed this claim because

"Plaintiffs [did not] provide sufficient detail about the length and frequency oftheir unpaid work
to support a reasonable inference that they worked more than forty hours in a given week." Id at
201. Similarly, in DeJesus. the plaintiff"alleged that she worked more than forty hours per week
during 'some or all weeks' of her employment and,in violation ofthe FLSA,through April 2011
was not paid at a rate of at least 1.5 times her regular wage for each hour in excess offorty
hours." 726 F.3d at 86. Affirming the district court's dismissal, the Second Circuit explained
that these allegations were "no more than rephrasing the FLSA's formulation specifically set
forth in section 207(a)(1)." Id at 89.

DeJesus further clarified that "Lundv's requirement that plaintiffs must allege overtime
without compensation in a 'given' workweek was not an invitation to provide an all-purpose

pleading template alleging overtime in 'some or all workweeks.'" Id. at 90(citation omitted).

Rather, it "require[s] plaintiffs to provide some factual context that will 'nudge' their claim
'from conceivable to plausible.'" Id.(quoting Twomblv. 550 U.S. at 570). This standard does

not require "careful records" or "mathematical precision" but does demand that plaintiffs draw
on "their memory and experience ...to provide[] complaints with sufficiently developed factual
allegations." Id One court recently summarized this trio ofcases as requiring a plausible
allegation of"work in excess offorty hours and the accompanying failure to pay overtime in 'a
given workweek.'" Bustillos v. Academv Bus.. No. 13-cv-565,2014 WL 116012, at *4
(S.D.N.Y. Jan. 13,2014).

There are two groups ofemployees discussed in the FAC:those who worked sleep in
shifts(the "Sleep In Plaintiffs"), and those who worked twelve hour shifts. With respect to those
plaintiffs that worked twelve hour shifts, the FAC plausibly alleges that they were not paid

overtime. Each ofthose plaintiffs allegedly worked,in a single week,four twelve hour shifts, on

weekdays,for which they were paid $480.00. FAC UK 45-47. The weekday rate of pay is $10.00
per hour. Id. K 29. Therefore, taking the allegations in the complaint to be true, it is plausible

that plaintiffs were not paid time and a half overtime for those shifts."^ The motion to dismiss the
overtime claims is denied with respect to those plaintiffs who worked twelve hour shifts.

The analysis is more complicated with respect to the Sleep In Plaintiffs. The FAC alleges
that some plaintiffs worked two consecutive sleep in shifts per week(48 hours total), id K 39,
others worked three consecutive sleep in shifts per week(72 hours total), id KK 38,40-43, and a
small group worked four consecutive sleep in shifts per week(96 hours total),id K 44. Plaintiffs

further allege that their wages for sleep in shifts were "automatically deduct[ed]" for eight hours

At an hourly rate of$10.00 per hour, these plaintiffs should have been paid $400.00 for
the first 40 hours. Plaintiffs should have earned $15.00 per hour for eight hours of overtime,
$120.00,for a total weekly payment of$520.00.
10

of sleep time and three hours of meal times, regardless of whether plaintiffs actually worked
through such periods. Id 34. They also allege that they "rarely if ever received uninterrupted,
continuous, and completely relieved ofduty sleeping and meal periods." Id f 33.

Under the FLSA,"employees are not entitled to compensation during break periods
when they are not working." Mendez v. U.S. Nonwovens Corp.. 314 F.R.D. 30,49(E.D.N.Y.
2016). Under New York law,"live-in employees must be paid not less than for thirteen hours

per twenty-four hour period provided that they are afforded at least eight hours of sleep and
actually receive five hours of uninterrupted sleep, and that they are afforded three hours for
meals." N.Y. Dep't of Labor, Counsel Opinion Letter, RO-09-00169 Live-In Companions
(March 11,2010), available at Severin. No. 10 Civ. 9696(DLC),ECF No. 78-1. Therefore,
defendants' policy ofscheduling twenty-four hour shifts did not necessarily entitle plaintiffs to
compensation for the full twenty-four hours.

Mendez. 314 F.R.D. at 49-50(holding that the

existence ofa policy ofautomatically deducting time for scheduled breaks does not, by itself,
violate the FLSA or NYLL); Desilva v. N. Shore-Long Island Jewish Health Svs.. Inc.. 27 F.
Supp. 3d 313, 321 (E.D.N.Y. 2014)(same). The question remains whether plaintiffs have
sufficiently pled break time work to plausibly suggest work in excess offorty hours in a given
workweek.

In Nakahata.the Second Circuit addressed the FLSA pleading standard for overtime
violations occasioned by the employee working through scheduled breaks. 723 F.3d at 201.

There, the complaint alleged "that Plaintiffs were not compensated for work performed during
meal breaks, before and after shifts, or during required trainings" but did not allege "that

Plaintiffs were scheduled to work forty hours in a given week." Id The Second Circuit
concluded that the complaint did not have "sufficient detail about the length and frequency of

11

[plaintiffs' alleged] unpaid work to support a reasonable inference that they worked more than
forty hours in a given week." Id.

Defendants do not contest that plaintiffs were scheduled to work at least thirteen hours
per sleep in shift. See Defs.' Suppl. Mem.at 5. Ifthe plaintiffs worked only the scheduled

thirteen hours per shift, most ofthe Sleep In Plaintiffs do not allege a week in which they worked

more than forty hours. S^ FAC

38-43.^ Therefore,these Sleep In Plaintiffs properly plead

an overtime violation only ifthey have alleged that they worked enough hours during their
designated break time to bring their weekly hours total above forty.

Plaintiffs failed to plead any details about the "length and frequency of... unpaid work."
Nakahata. 723 F.3d at 201. Indeed,the allegations in the FAC are similar to those found
insufficient in Nakahata. Compare id. at 196 ("Plaintiffs allege:(1)Defendants have a policy of

automatically deducting time for meal breaks from employees' paychecks despite consistently
requiring employees to work during meal breaks") with FAC ^ 34("At all relevant times, when
Plaintiffs worked sleep-in shifts. Defendants automatically deducted from Plaintiffs' wages eight
(8)hours per day for alleged sleep time and three(3)hours per day for alleged meal periods,
without regard to whether Plaintiffs in fact worked through said time periods."); compare

Nakahata. 723 F.3d at 196 ("Plaintiffs allege:...(2)employees engage in work activities both
before and after their shift without compensation") with FAC H 33 ("Plaintiffs rarely if ever
received uninterrupted, continuous and completely relieved ofduty sleeping and meal periods.").
In other words, the FAC does not "support a reasonable inference that [plaintiffs] worked

^ Paragraphs 38,40,41,42 and 43 allege that the listed plaintiffs worked three sleep in
shifts during specified weeks. FAC 38,41-43. At thirteen hours worked per shift, this is
thirty-nine hours per week. Paragraph 39 alleges that the listed plaintiffs worked two sleep in
shifts during specified weeks. Id If 39. At thirteen hours worked per shift, this is twenty-six
hours per week.
12

more than forty hours in a given week." Nakahata. 723 F.Sd at 201. The required inference is
most tenuous for those plaintiffs who allege two consecutive sleep in shifts. FAC ^ 39. In order
for these plaintiffs to plead more than forty hours of work in a given workweek,I would have to
assume that they took fewer than eight hours to sleep and/or eat over the course offorty-eight
consecutive hours of work. Similarly, for those plaintiffs who allege working three consecutive
sleep in shifts, id.

38,41-43,1 would have to assume that, on average, they worked through at

least two oftheir designated eating breaks, slept less than six hours, or did not receive five hours
of uninterrupted sleep per shift. No allegation in the FAC provides details supporting these
inferences.

However,a small number of plaintiffs allege weeks in which they worked four sleep in
shifts a week. Id.

44. Defendants do not contest that plaintiffs were scheduled to work at

least thirteen hours per sleep in shift. At thirteen hours worked per shift, therefore, these
plaintiffs allege fifty-two hours per week. Therefore, even without working during breaks, these
plaintiffs have plausibly pled a "work in excess offorty hours and the accompanying failure to
pay overtime in 'a given workweek.'" Bustillos. 2014 WL 116012, at *4;s^ FAC K 36

("Defendants failed to pay Plaintiffs overtime wages for hours worked in excess offorty(40)per
week.").

Therefore, the failure to pay overtime claim is dismissed with respect to the majority of

plaintiffs. The failure to pay overtime claim survives with respect to plaintiffs who worked
twelve hour shifts and with respect to the following plaintiffs, who allege a single workweek
comprising four sleep in shifts: Janina Werynska, Lidiya Berdnkova, Krystyna Bunkowska,
Anatalie Jean, Marie Grand-Pierre, Priscilla Jenkins, Jemma Lewis, Danuta Malmon,Neli

Korinteli, Daisy Castillo, Marie Plaisir, Bamo Akhtamova, Svetlana Shaposhnik, Lyudmilla

13

Artanoshina and Cicely Daly.

III.

Failure to Pay Minimum Wage under FLSA and NYLL

The FLSA requires employers to pay employees at least minimum wage, currently $7.25
per hour. 29 U.S.C. § 206(a)(1). New York's minimum wage was higher than the FLSA wage
during all relevant times, and is currently $9.00 per hour. N.Y. Lab. Law § 652(McKinney
2016). The same pleading standard applies to claims under the FLSA and NYLL. See LopezSerrano. 132 F. Supp. 3d at 401 (applying same analysis to FLSA and NYLL minimum wage
claims).

A party alleging failure to pay the mandated minimum wage has an "arithmetical" burden

at the pleadings stage. Id at 402. "[T]o state an FLSA minimum wage claim, it is sufficient for
a plaintiff to allege facts about her salary and working hours, such that a simple arithmetical
calculation can be used to determine the amount owed per pay period." Id (quoting Serrano v. I.
Hardware Distribs.. Inc.. No. 14-cv-2488,2015 WL 4528170, at *3(S.D.N.Y. July 27,2015)).

With respect to the employees who worked twelve hour shifts, the only allegations in the
FAC suggest that these employees were paid more than minimum wage. For example,the FAG

alleges that plaintiffs were paid $10 per hour during weekday shifts and $11.25 per hour during
weekend shifts. FAC ^ 29. Similarly, the representative weeks cited in the FAC for employees
working twelve hour shifts suggest that they were paid over the minimum wage. S^ id

45-

47(listing plaintiffs paid $480.00 for four twelve hour shifts, or $10/hour).

Turning to the Sleep In Plaintiffs, the only allegation in the FAC as to plaintiffs' hourly

rate establishes that they were paid twelve hours at the regular weekly rate($10 per hour on
weekdays and $11.25 per hour on weekend), plus a "per diem" payment of$16.95. FAC ^ 30.
Thus,the minimum wage claim for the Sleep In Plaintiffs depends on whether these plaintiffs

14

have plausibly alleged they "worked sufficient unpaid hours that [their] effective hourly wage
fell below the minimum wage." Bustillos, 2014 WL 116012, at *2.

The Sleep In Plaintiffs have not met this requirement. As explained above, neither the
FLSA nor the NYLL requires employers to compensate employees working overnight shifts for
sleeping and meal breaks. See Severin. 2012 WL 2357410, at *8. While plaintiffs allege

specific weeks during which they worked multiple sleep in shifts, they have provided no basis
for me to conclude that they worked the entire twenty-four hours ofeach shift, without sleep or

meal breaks.^ Plaintiffs have not plausibly alleged that they worked more than nineteen hours
each shift without a break. Therefore, the minimum wage claim is dismissed with respect to all
plaintiffs.
IV.

Failure to Provide Wage Notices

Plaintiffs' final claim arises under NYLL § 195, which requires employers to include the
following information with each wage payment:

the dates of work covered by that payment of wages; name ofemployee; name of
employer; address and phone number ofemployer; rate or rates ofpay and basis
thereof, whether paid by the hour, shift, day, week,salary, piece, commission, or
other; gross wages; deductions; allowances,if any,claimed as part ofthe
minimum wage;... net wages[;]....the regular hourly rate or rates of pay; the

^ In order to have received an effective minimum wage,plaintiffs need only have taken
breaks of, on average, five hours per shift. Paragraphs 38,42 and 43 allege that the listed
plaintiffs worked three sleep in shifts for a total weekly payment of$410.85. FAC 38,42-43.
Plaintiffs could have worked up to 56.66 hours that week, or approximately 19 hours per shift,
before earning less than the minimum wage. Paragraphs 40 and 41 allege that the listed
plaintiffs worked three sleep in shifts for a total weekly payment of$425.85. Id 40-41.
Plaintiffs could have worked up to 59.15 hours that week, or approximately 20 hours per shift,
before earning less than the minimum wage. Paragraph 39 alleges that the listed plaintiffs
worked two sleep in shifts for a total weekly payment of$273.90. I^f 39. Plaintiffs could have
worked up to 37.78 hours that week, or approximately 19 hours per shift, before earning less
than the minimum wage. Finally, paragraph 44 alleges that the listed plaintiffs worked four
sleep in shifts for a total weekly payment of$547.80. Id 144. Plaintiffs could have worked up
to 75.56 hours that week, or approximately 19 hours per shift, before earning less than the
minimum wage.
15

overtime rate or rates of pay; the number ofregular hours worked, and the number
ofovertime hours worked.

N.Y. Lab. Law § 195(3)(McKinney 2016). The statute also requires employers to provide a
detailed wage notice at hiring. Id. § 195(l)(a).

The FAC alleges that "Defendants failed to provide Plaintiffs with ... wage statements
with each wage payment that contained all required information, such as employer address,
telephone number, pay period dates, d^/a/ name, hours worked, overtime hours worked, etc."

FAC ^ 93; see also id. T[ 52. Plaintiffs have therefore adequately pled a violation ofstatute.
Mendez v. US Nonwovens Corp.. 2 F. Supp. 3d 442,457-58(E.D.N.Y. 2014)(denying motion

to dismiss where complaint "specifically alleges that the 'Defendants never provided' the

Plaintiffs with a wage notice").^
Defendants argue, and plaintiffs do not contest, that six plaintiffs have "no colorable
claim under the statute," Defs.' Mem. at 23, because their claims are "time-barred," Defs.'

Suppl. Mem. at 7. The six plaintiffs at issue, and their respective dates ofemployment,follow:
(1) Unica George: December 1995 to 2010
(2) Unicey Deshields: July 1998 to November 2011
(3) Beverly Caldwell: March 2008 to June 2011
(4) Morine Wright: October 1999 to November 2011

^ Plaintiffs also allege that defendants failed to provide annual wage notices required by
the Wage Theft Prevention Act. FAC ^ 93. While this requirement was in force as of April 9,
2011. see Carter v. Tuttnaeur U.S.A. Co.. 78 F. Supp. 3d 564,569(E.D.N.Y. 2015)(quoting
YuQuilema v. Manhattan's Hero Corp.. No. 13-CV-461 (WHP)(JLC),2014 WL 4207106, at *10
(S.D.N.Y. Aug. 26, 2014)), the statue did not provide a private right of action for those who did
not receive the annual notice,s^ id at 570(citing Guan Ming Lin v. Benihana N.Y. CorD.» No.
lO-CV-1335(RA)(JCF), 2012 WL 7620734, at *2(S.D.N.Y. Oct. 23,2012),R&R adopted
2013 WL 829098(S.D.N.Y. Feb. 27,2013)), and this requirement was removed from the statute
effective February 27, 2015, Act ofDec. 29, 2014, Ch. 537,2014 N.Y. Sess. Laws A. 8106-C
(McKinney).
16

(5) Elaine Clarke: August 2000 to May 2010

(6) Myma Thomas: November 2004 to December 2010
Defs.' Mem. at 23; FAG Ex. 1, EOF No. 43-1. Plaintiffs did not address this issue.

As noted above, plaintiffs allege violations oftwo separate provisions ofthe NYLL:

Section 195(l)(a), which requires employers to give a wage notice at hiring, and Section 195(3),

which requires employers to provide a statement with each wage payment. Both sections were
amended with an effective date of April 9,2011. S^ Wage Theft Prevention Act, Ch. 564,2010
N.Y. Sess. Laws S. 8380(McKinney). Under this amendment,the first annual wage notice was
due on February 1,2012. Id. Therefore, recovery for failure to provide the annual notice

required under NYLL § 195(l)(a) is limited to plaintiffs employed as of February 1,2012. S^
Carter v. Tuttnaeur U.S.A. Co.. 78 F. Supp. 3d 564,570(E.D.N.Y. 2015)(citing Guan Ming Lin
V. BenihanaN.Y. Corp.. No. lO-CV-1335(RA)(JCF),2012 WL 7620734, at *2(S.D.N.Y. Oct.

23,2012), R&R adopted. 2013 WL 829098(S.D.N.Y. Feb. 27,2013)). Accordingly,the motion
to dismiss is granted with respect to violations ofNYLL § 195(l)(a)for the six plaintiffs listed
above.

The requirement to provide a statement with each payment of wages was effective April
9,2011. S^ WPTA. Therefore, no plaintiffs employed after that date are time-barred.

Furthermore,the requirement to provide a statement with each payment of wages predates the
2011 amendment ofthe statute. S^ id. The previous statute required employers to "furnish

each employee with a statement with every payment of wages, listing gross wages, deductions
and net wages."

id. Plaintiffs allege that defendants' wage statements did not include the

hours worked or hourly rates. FAC K 52. Without this information, defendants could not have

provided the required notice of gross and net wages. Therefore, plaintiffs have alleged a

17

violation ofthe pre-2011 statute. The motion to dismiss is denied with respect to all violations of
NYLL § 195(3).
V.

Remaining Issues
a. FLSA Statute of Limitations

The FLSA has a two year statute oflimitations, which may be extended to three years in

the case ofa willful violation. 29 U.S.C. § 255(a).^ "A cause of action under the FLSA accrues
on the regular payday immediately following the work period for which services were rendered
and not properly compensated." Xu v. Ho. 111 F. Supp. 3d 274,278(E.D.N.Y. 2015)(quoting
D'Arpa v. Runwav Towing Corp.. 12-CV-1120,2013 WL 3010810,at *5(E.D.N.Y. June 18,
2013)). An individual action brought under the FLSA "shall be considered to be commenced on

the date when the complaint is filed." 29 U.S.C. § 256.^ The complaint was filed on February 2,
2016. Compl.,ECF No. 1. Therefore, individual claims that accrued before February 1,2014,
are barred under a two year statute of limitations and individual claims that accrued before
February 1,2013, are barred under a three year statute of limitations.

"Courts in this Circuit have generally left the question of willfulness to the trier offact."
Litras v.PVM Intem. Corp.. No. 1 l-cv-5695(JFB)(AKT),2013 WL 4118482, at *5(E.D.N.Y.
Aug. 15,2013)(collecting cases). This is because "it is hornbook learning that the state of
[another]'s mind, intent, can almost never be proved directly and invariably is proved

circumstantially." Rahman v. Shiv Darshan. Inc.. 12 Civ. 3457(ILG)(CLP),2013 U.S. Dist.

^ "In contrast to FLSA claims, NYLL claims have a six-year statute oflimitations with no
showing of willfulness required." Shu Oin Xu v. Wai Mei Ho. 111 F. Supp. 3d 274,278
(E.D.N.Y. 2015)(citing Guaman v. Krill Contracting. Inc.. 14-CV—4242,2015 WL 3620364, at
*5(E.D.N.Y. June 9,2015); He v. Home on 8th Corn.. 09-CV-5630,2014 WL 3974670 at *6
(S.D.N.Y. Aug. 13,2014)).

^ Class claims are commenced with respect to each individual claimant on the date his
written consent to be a party is filed, or the date ofthe complaint, whichever is later. Id.
18

LEXIS 24750, at *9-10,2013 WL 654189(S.D.N.Y. Feb. 22,2013)(alterations omitted). As a

result,"[wjhether or not a violation ofthe FLSA is 'willful' is a fact-intensive inquiry not
appropriately resolved on a motion to dismiss." Goodman v. Port Auth. ofN.Y.& N.J.. 850
F.Supp.2d363,381 (S.D.N.Y.2012).

Plaintiffs allege generally that defendants "intentionally, willfully and repeatedly engaged
in a pattem, practice and/or policy of violating the FLSA." FAC ^ 48. At this stage of litigation,
a general averment of willfulness suffices to invoke the three-year statute of limitations. Litras.
2013 WL 4118482, at *4; Moran v. GTL Constr.. LLC.06 Civ. 168(SCR),2007 WL 2142343, at

*4(S.D.N.Y. July 24,2007)("[F]or the purposes of pleading, willfulness qualifies as a factual
state of mind falling under Fed. R. Civ. P. 9(b) which states that the 'condition of mind of a
person may be averred generally.'").

Defendants also argue that the claims of any plaintiffs no longer employed by defendants
after February 1,2013, are barred even under the three year statute oflimitations. Defs.' Mem.
at 21. Plaintiffs do not address this issue. A statute of limitations may be equitably tolled if"the

plaintiff...establish[es] that extraordinary circumstances prevented [her] from filing [her] claim
on time, and that [s]he acted with reasonable diligence throughout the period [s]he seeks to toll."
Parada v. Banco Indus. De Venezuela. C.A.. 753 F.3d 62,71 (2d Cir. 2014)(quoting Phillips v.
Generations Familv Health Ctr.. 723 F.3d 144,150(2d Cir. 2013)). I find no reason to grant
such reliefsua sponte. Therefore, all FLSA claims are limited to violations occurring after

February 1,2013. Litras. 2013 WL 4118482, at *6; Moran. 2007 WL 2142343, at *4. In

addition, FLSA claims brought by the following plaintiffs, who were not employed by defendant
after February 1, 2013, are dismissed from the case: Unica George(employed until 2010);
Unicey Deshields(employed until 2011); Catherine Jessamy(employed until December 2012);

19

Beverly Caldwell(employed imtil June 2011); Morine Wright(employed until November 2011);
Elaine Clarke(employed until May 2010); Mjana Thomas(employed until December 2010);

Jacqueline Ellis(employed until May 2012); Carmen Pownall(employed until 2012); and Eunice

Stafford(employed until December 2012). FAC Ex. 1, ECF 43-1.^®
b. Employer Knowledge

Defendants contend that plaintiffs fail to sufficiently plead violations ofthe FLSA and
NYLL because they do not "allege that a single employee ever told anyone at Project OHR that
this was occurring or that Project OHR knew that it was occurring." Defs.' Memo,at 15.
However,the prima facie case for wage and overtime violations does not require demonstrating
employer knowledge. See Connollv v. Smugglers' Notch Msmt. Co.. No.2:09-CV-131,2009
WL 3734123, at *2(D. Vt. Nov. 5, 2009)(listing elements of prima facie case under FLSA)
(citing Reich v. S. New England Telecomms. Corp.. 121 F.3d 58,67(2d Cir.1997)). Therefore,

the motion to dismiss is denied on this ground.^'

The statute oflimitations is an affirmative defense, and "[t]he pleading requirements in
the Federal Rules of Civil Procedure ...do not compel a litigant to anticipate potential
affirmative defenses...and to affirmatively plead facts in avoidance ofsuch defenses." Abbas
V. Dixon.480 F.3d 636,640(2d Cir. 2007)(citing Jones v. Bock. 549 U.S. 199(2007)).
However,"the Court may ... dismiss an action based on the statute of limitations if, on the face
ofthe complaint, it is clear that the claim is untimely." Atlantic IntT Movers. LLC v. Ocean
World Liners. Inc.. 914 F. Supp. 2d 267,279(E.D.N.Y. 2012)(quoting FTAMkt.Inc. v. Vevi.
Inc.. No. 1 l-CV-2789,2012 WL 383945, at *3(S.D.N.Y. Feb. 1,2012); see also Galin v.
Hamada. No. 15-cv-6992(JMF),2016 WL 2733132, at *2(S.D.N.Y. May 10,2016)("[A] court
may grant a motion to dismiss based on an affirmative defense only if, on the face ofthe
complaint, the defense ^clearly' applies."(quoting Harris v. Citv ofNew York. 186 F.3d 243,
250(2d Cir. 1999)); Bridgeforth v. Bartlett. 686 F. Supp. 2d 238,239(W.D.N.Y. 2010)
(dismissing habeas complaint where facts alleged in complaint showed that prisoner had failed to

satisfy the administrative exhaustion requirement). Here,there is no doubt liiat the statute of
limitations applies to the listed plaintiffs. Plaintiffs need no discovery in order to discern the
approximate start and end dates oftheir emplojmient. Plaintiffs already have this information;
indeed, it is affirmatively pled. S^ FAC Ex. 1.
In support ofthis argument, defendants cite cases whose holdings rely on the factual
20

c. Joint Employers

Defendants argue that plaintiffs have not sufficiently pled that Met Council and Kohn are
employers within the meaning ofthe FLSA and NYLL. Defs.' Mem.at 20. Judge Cote

addressed this question on a motion to dismiss with respect to the same defendants, and on the
basis of nearly identical allegations. Compare FAC ^15(Kohn "had and exercised the right to
hire and fire, control the performance and evaluation ofPlaintiffs' work and set schedules, wage
rates and other terms and conditions ofPlaintiffs' employment.") with Severin v. Project OHR.
In^ No. 10 CIV. 9696 DLC,2011 WL 3902994, at *6(S.D.N.Y. Sept. 2,2011)("Plaintiffs
assert that in her capacity as Executive Director of Project OHR,Kohn controlled personnel
decisions, and had the power to hire and fire, set wages, and otherwise control the terms and

conditions ofthe plaintiffs' employment."); compare FAC \\1("Defendants OHR and Met at all
times herein relevant shared corporate resources, owners, assets, liabilities, funds, bank accounts,
office space, facilities, equipment, contracts, officers, directors, employees and contractors.")
with Severin. 2011 WL 3902994, at *7("Plaintiffs allege a relationship between Project OHR

and Met Council, including Met Council's oversight ofProject OHR. Nothing in the Complaint,
however,indicates that Met Council had a role in Project OHR's personnel decisions.").
In short, Judge Cote reasoned that because plaintiffs alleged that Kohn, but not Met
Council, controlled personnel decisions, plaintiffs had sufficiently alleged that Kohn, but not Met
Council, was an employer subject to the FLSA and NYLL. Severin. 2011 WL 3902994, at *6-7.

record, which is not available at a motion to dismiss. S^ Kubel v. Black & Decker. Inc.. 643

F.3d 352, 361 (2d Cir. 2011)(appeal fi om a motion for summary judgment); Joza v. WW JFK
"
LLC.2010 U.S. Dist. LEXIS 94419, at *20(E.D.N.Y. Sept 9. 2010)(verdict after trial).
Defendants cite no case — and I am aware of none — requiring plaintiffs alleging FLSA wage
and overtime violations to plead employer knowledge.
21

Finding her reasoning persuasive, I follow it here. For the reasons Judge Cote explains in her
opinion,the claims against Kohn are not dismissed and the claims against Met Council are
dismissed.

d. Class Allegations

Defendants contend that the court should strike all class allegations because plaintiffs
cannot meet the commonality and typicality requirements of Rule 23. Defs.' Mem. at 23-25. On
a motion to dismiss,"a motion to strike class claims is considered premature ifthe issues raised

are 'the same ones that would be decided in connection with determining the appropriateness of
class certification under Rules 23(a)and 23(b).'" Kassman v. KPMG LLP.925 F. Supp. 2d 453,
464(S.D.N.Y. 2013)(quoting Rahman v. Smith & Wollenskv Rest. Grp.. Inc.. No.06 Civ.
6198(LAK)(JCF),2008 WL 161230, at *3(S.D.N.Y. Jan. 16, 2008)). A motion to strike brought
under Rule 12 is disfavored because "it requires a reviewing court to preemptively terminate the
class aspects of litigation, solely on the basis of what is alleged in the complaint, and before

plaintiffs are permitted to complete [] discovery... on questions relevant to class certification."
Calibuso v. Bank of Am. Corp.. 893 F. Supp. 2d 374,383(E.D.N.Y. 2012)(original alterations

and internal quotations omitted)(quoting Ironforge.com v. Pavchex. Inc.. 747 F. Supp. 2d 384,
404(W.D.N.Y. 2010)).

Here, as in Kassman."[defendants'] objections go to whether Plaintiffs can satisfy the
requirements of Rule 23(a)(2),(b)(2), and b(3)." 925 F. Supp. 2d at 464. Therefore, the motion
to strike class allegations is denied as procedurally premature,"without prejudice to the

[defendants'] ability to oppose class certification [or certification as an FLSA collective action]
on these same grounds." Id at 464-65 (quoting Winfield v. Citibank. N.A.. 842 F. Supp. 2d 560,
574(S.D.N.Y. 2012)).

22

e. New Plaintiffs

Finally, defendants object that plaintiffs added two new plaintiffs, Cicely Daly and Anna
Garvey,to the caption ofthe FAG "[wjithout leave." Defs.' Suppl. Mem.at 1 n.2. While the
court did not specifically approve additional parties, I did grant plaintiffs leave to amend their
complaint. Tr. OfProceedings(Oct. 4,2016), Suppl. Decl. Kevin J. O'Connor, Esq. Supp. Mot.
Dismiss Am.Compl. Pursuant Fed. R. Civ. P. 12(b)(6)& Strike Class Allegations, Ex. A,ECF
No.44-2, at 5:14-19.

"[W]hen adding new named plaintiffs in a class action ...[courts in this circuit] focus on
whether the new plaintiffs claims were reasonably foreseeable and whether their addition would
prejudice the defendants." Beach v. Citieroup Alt. Invest.. LLC. No. 12 Civ. 7717(PKC),2014
WL 904650, at *19(S.D.N.Y. Mar. 7, 2014); see also In re Simon IILitig.. 211 F.R.D. 86,146
(E.D.N.Y. 2002)("The burden is on defendants to prove that [they] will suffer substantial

prejudice in a legal sense as a result of adding new plaintiffs in a class action."), vacated on other
grounds 407 F.3d 125(2d Cir. 2005). Defendants have not argued that the addition ofthese two
parties causes them any prejudice. Cf Sanon v. Cherrv Hill Market Corp.. No. 10-CV5616(FB)(MDG),2014 WL 4794231, at *1-2(E.D.N.Y. Sept. 25,2014)(rejecting defendant's

objections to permitting amendment ofcomplaint to add new plaintiffs to case brought under
FLSA and NYLL after class certification was denied).

To join an FLSA collective action, a potential plaintiff must affirmatively join the action
by filing a written consent with the court. 29 U.S.C. § 216(b). Daly has already complied with
this requirement. S^ Consent(Sept. 1, 2016),ECF No. 41, at 6. I assume that Garvey will

comply with this requirement in a timely manner.'^ Therefore, Cicely Daly and Anna Garvey

However,as ofthe writing ofthis opinion, Daly is the onlv plaintiffto have filed her
23

mayjoin this action.
CONCLUSION

For the reasons explained above, the motion to strike class allegations is denied. The
motion to dismiss is granted in part and denied in part. The motion to dismiss is granted with
respect to defendant Met Council.

With respect to the remaining two defendants, the motion to dismiss failure to pay
minimum wage claims arising under the FLSA and NYLL is granted. The motion is denied with
respect to the New York wage theft claim, except that the motion is granted with respect to
violations ofNYLL § 195(l)(a)for the following plaintiffs: Unica George, Unicey Deshields,
Beverly Caldwell, Morine Wright, Elaine Clarke, and Myma Thomas.

The motion to dismiss failure to pay overtime claims arising under the FLSA and NYLL
is granted with respect to the following plaintiffs:
Judy Bonn-Wittingham; Melva Jones; Germita Fremont; Maisie Beckford; Lena
Barton; Dulcie Jones; Greta Keiser; Enid Lewis; Marie Paula Eugene; Gloria
Bent; Grace Yarde; Linda Henderson; Vesta Douglas; Evelyn Cima; Merle Hoyte;
Octavia Crick; Albertina Thomas; Suzy Dorce; Mary P. Eugene; Albertha
Fenelon; Parbati Singh; Vema Ricketts; Gillian Bowen; Faril Best; Comelious
Green; Margaret Younge; Gladys Enriquez; Olive Dutchin; Mignan Barry; Sheran
James; Debbie Ann Brown; Pauline Grant; Irma Anderson; Omodele Johnson;
Adalsie Houston; Cecilia Best; Martha Groves; Launa Jones; Angela Armstrong;
lonie Senior; Yvonne Lewis; Margaret Cotterell; Marie Yanick Joseph; Ella
Pompey; Marie-L Gilles; Marie Milord; Marie D. Pierre; Merle Lopez; Beverline
Grant; Elaine Taylor; Linnett Williams; Roxanne Cambridge; Kathlene Morgan;
Sawarie Ramlochan; Anne Marie Morgan; Leonie Hussett; Linette Cornwall; Fay

written consent to join this action with the court. "The requirement of written consent applies to
each individually-named plaintiff. As a result, notwithstanding the fairly obvious inference of
consent to sue that could normally be drawn from a plaintiffs affirmative act offiling suit, the
case law holds that a plaintiff who does not timely file an explicit statement ofconsent to join his
own lawsuit risks dismissal or the limitation ofotherwise available damages." Suarez v. S & A
Painting & Renovation Corp.. No.08-CV-2984(CPS)(JO), 2008 WL 5054201, at *1 n.l
(S.D.N.Y. Nov. 21,2008)(citing El v. Potter. No.01 Civ. 6125(RWS),2004 WL 2793166, at *8
(S.D.N.Y. Dec. 6,2004)). Plaintiffs are directed to comply with this requirement in a timely
manner.

24

Mckenzie; Marie Dorsainville; Carmel Anderson; Yolanda Gayle; Pauline Clarke;

Alvira Henry; Lynette Vyent; Sylvia Hoyte; Una Seale; Lorente Simeon; Pearline
Donaldson-Reid; Judy Taylor; Lynette A. Williams; Caroline Long; Maijorie
Johnson; Doretta Thomas; Velda Mayers; Yvonne Mack; Isolyn Palmer; Donna

Headley; Claudette Grimes; Seorajni Persaud; Neela Warden; Eileen Tucker;
Annette Davis; Carmen Pelzer; Ann Sabal; Jacqueline Ellis; Syliva Peters; Marie
Laguerre; Tanisha Gooden; Elsie Collins; Beverly Royal Mcpherson; Audrey
Crosdale; Mariya Sudnishikova; Walentina Ruszczyk; Hoda Hassane; Huguette
Nelson; Sandra Mcintosh; Yveline M.Beauchamp; Julieth Melbourne; Adeline
Jermain; Gislaine Jocelyn; Marina Bessarabova; Marthe Latour; Jeanine Elie;
Vitold Stankevich; Zoia Stankevitch; Crystal Edwards; and Josefma Arias.

The following plaintiffs' surviving FLSA claims are dismissed as barred by the statute of
limitations: Unica George; Unicey Deshields; Catherine Jessamy; Beverly Caldwell; Morine

Wright; Elaine Clarke; Myma Thomas; Jacqueline Ellis; Carmen Pownall; and Eumce Stafford.
Finally, the following persons have been added as individual plaintiffs: Cicely Daly and
Anna Garvey. The clerk is directed to update the caption accordingly.
SO ORDERED.

S/ Allyne R. Ross
Allyne R. Ro
United States

Dated:

December 12,2016

Brooklyn, New York

25