Zaldivar v. JMJ Caterers, Inc. et al
Filing
44
ORDER granting 29 Motion to Certify FLSA Collective Action. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 2/26/2016. (Kandel, Erin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
ORBIN ZALDIVAR, individually and on
behalf of all others similarly situated,
Plaintiff,
MEMORANDUM
AND ORDER
- against CV 14-924 (SJF) (AKT)
JMJ CATERERS, INC. d/b/a
THE METROPOLITAN, MICHAEL
GIAMALVO, and JANENDER NARANG,
Defendants.
----------------------------------------------------------X
A. KATHLEEN TOMLINSON, Magistrate Judge:
Former dishwasher and food preparer Orbin Zaldivar (“Plaintiff”) brings this wage and
hour action, individually and on behalf of all other persons similarly situated, against Defendants
JMJ Caterers, Inc. d/b/a The Metropolitan (“JMJ” or “the Metropolitan”), Michael Giamalvo,
and Janender Narang (collectively, “Defendants”), pursuant to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 et seq., 29 U.S.C. § 215(a)(3), New York Labor Law (“NYLL”)
§§ 195, 198, and 215(1)(a), NYLL Article 19 §§ 650 et seq., and 12 New York Codes, Rules and
Regulations (“NYCRR”) §§ 137 and 142. Plaintiff alleges that the Defendants implemented a
punch card system which unlawfully deprived him and similarly situated employees of overtime
compensation. See generally Amended Complaint (“Am. Compl.”) [DE 8].
Plaintiff now moves for conditional certification of a collective action and for notice of
pendency to potential collective action members, pursuant to 29 U.S.C. § 216(b). See Plaintiff’s
Letter Motion to Certify FLSA Collective Action (“Pl.’s Mot.”) [DE 29]. Defendants oppose the
motion, asserting, among other things, that Plaintiff rarely worked overtime but was paid
overtime wages when he did so. See Declaration of Michael Gialmalvo (“Giamalvo Decl.”)
[DE 40], ¶ 5. Based on the Court’s review of the parties’ submissions as well as the applicable
case law, Plaintiff’s motion is hereby GRANTED.
I.
BACKGROUND
The following alleged facts are taken from the Amended Complaint and Plaintiff’s
declaration in support of his motion for conditional certification. See Declaration of Orbin
Zaldivar (“Pl.’s Decl.”), attached as Ex. 3 to Pl.’s Mot [DE 29-3]. The Metropolitan is a catering
establishment located in Glen Cove, New York. See Am. Compl. ¶ 1. Beginning in January
2010, the Metropolitan was operated by former defendant AAFF, Inc. (“AAFF”)1 and defendant
JMJ. Id. ¶ 2. Plaintiff alleges, upon information and belief, that AAFF sold the Metropolitan to
JMJ in approximately December 2012. Id. Defendants Giamalvo and Narang are principals of
JMJ. Id. ¶ 3.
Plaintiff worked as a dishwasher and food preparer for the Metropolitan from
approximately February 2010 until December 21, 2013. Id. ¶¶ 4; 29; Pl.’s Decl. ¶ 4. During the
period from approximately February 2010 through May 2011, Plaintiff worked from 9 a.m. to
9 p.m., Tuesday through Sunday, and was paid a regular rate of $10 per hour. Am. Compl
¶¶ 30-31; Pl.’s Decl. ¶ 5. From approximately May 2011 through the termination of his
employment,2 Plaintiff worked from 1 p.m. to 1 a.m., Tuesday through Sunday, and was paid a
regular rate of $12 per hour. Am. Compl. ¶¶ 32-33; Pl.’s Decl. ¶ 6.
1
Defendants AAFF and Frank J. Sciame were dismissed by stipulation on December 30,
2014. See DE 23.
It is unclear from Plaintiff’s submissions when he stopped working for Defendants.
Paragraphs 2, 29, and 40 of the Amended Complaint state that Plaintiff worked the Metropolitan
2
2
Plaintiff alleges that, while he worked at the Metropolitan, Defendants did not pay him
overtime wages for the hours he worked in excess of 40 hours per workweek. Pl.’s Decl. ¶ 7;
Am. Compl. ¶ 34. Instead, Defendants paid Plaintiff in cash at his regular rate of pay for his
overtime hours. Pl.’s Decl. ¶ 7; Am. Compl. ¶¶ 34, 36. Plaintiff alleges that this practice was
not limited to him “but was used by the Metropolitan to deny overtime to all kitchen staff,
servers and busboys.” Pl.’s Decl. ¶ 8. The Metropolitan employed four kitchen staff while he
worked there, as well as “at least 12 busboys and 4 servers.” Id. ¶ 9.
According to the Plaintiff, “[i]n order to avoid detection in the event of an audit, and to
feign compliance with wage and hour laws, the Defendants implemented a ‘two punch card’
system.” Am. Compl. ¶ 35; see Pl.’s Decl. ¶ 10. Under this system, “Plaintiff was instructed to
record the first 40 work hours on one punch card,” and “was paid for his first 40 hours worked
by paycheck, from which payroll taxes were deducted.” Am. Compl. ¶ 35. “Plaintiff was
instructed to record any hours worked in excess of 40 on a second punch card” and “was paid in
cash, at the regular rate, for all hours worked in excess of 40.” Id. The Amended Complaint
provides two examples of how the “two punch card” system was applied to Plaintiff:
[D]uring the pay period from November 25, 2013 through
December 1, 2013, according to the Plaintiff’s recollection, the
Plaintiff worked approximately 72 hours (Tuesday to Sunday, 1:00
pm – 1:00 am, without an uninterrupted meal period). The Plaintiff
was paid for the first 40 hours by paycheck, subject to withholding,
at the regular rate of pay. The approximate 32 hours of overtime
were paid in cash at the regular rate of pay, rather than at the
overtime rate. . . .
until December 21, 2013, Am. Compl. ¶¶ 4, 29, 40, while paragraphs 32 and 33 state that
Plaintiff worked at the Metropolitan until December 21, 2014, id. ¶¶ 32-33. Plaintiff’s
declaration contains the same discrepancy. See Pl.’s Decl. ¶¶ 4, 6. Defendant Giamalvo states in
his declaration that Plaintiff “was employed by JMJ from December 28, 2012 to approximately
December 21, 2013.” Giamalvo Decl. ¶ 3.
3
[D]uring the pay period December 9, 2013 through December 15,
2013, according to the Plaintiff’s recollection, the Plaintiff again
worked approximately 72 hours (Tuesday to Sunday, 1:00 pm – 1:00
am, without an uninterrupted meal period). The Plaintiff was paid
for the first 40 hours by paycheck, subject to withholding, at the
regular rate of pay. The approximate 32 hours of overtime were paid
in cash at the regular rate of pay, rather than at the overtime rate.
Am. Compl. ¶¶ 36-37.
In his declaration, Plaintiff also describes the “two punch card” system. According to
Plaintiff, he was taught to use the system “by a woman named ‘Pamela.’” Pl.’s Decl. ¶ 10.
Pamela told Plaintiff “to punch the first card for four days, and then she would take out the first
card and replace it with a second.” Id. Thus, each week Plaintiff “punched two cards.” Id.
Plaintiff states that this system was in place for “the entire time” he worked at the Metropolitan.
Id. The punch clock is located in the basement of the Metropolitan, and next to the punch clock
is “a punch card rack with the name of each employee.” Id. ¶ 11. While Plaintiff was employed
at the Metropolitan, “[t]here were about 24 punch cards total, one for each employee.” Id.
“Each employee used one punch card for the first 40 hours, and a second punch card to record
overtime hours.” Id. ¶ 10. Pamela would then “check the cards of each employee. When the
employee reached 40 hours (usually after 4 days), she would remove the first punch card (the
regular punch card), and replace it with a new card (the overtime card).” Id. ¶ 12. Plaintiff
estimates that he personally witnessed Pamela replacing punch cards “at least 10 times.” Id. ¶
13.
Plaintiff further alleges that the “two punch card” system “was used for all busboys,
servers, and kitchen workers” at the Metropolitan. Id. ¶ 14. In 2012, Plaintiff had a conversation
with Alberto, a busboy, who told Plaintiff “that it ‘wasn’t good’ that he worked so many hours
and that he was not paid for overtime at ‘time-and-a-half.’” Id. ¶ 15. On another occasion,
4
Plaintiff overheard a server named Alma “complain to a group of busboys and servers that she
was unhappy with the Metropolitan’s not paying overtime to them.” Id. ¶ 16.
Plaintiff alleges that he complained about the denial of overtime pay to defendant
Giamalvo. More specifically, Plaintiff states in his declaration that, in December 2013, he told
Giamalvo and his partner that he “deserved a ½ hour lunchbreak and that . . . [he] wanted to be
paid extra for [his] overtime hours.” Id. ¶ 17. Giamalvo and his partner allegedly said that they
could not pay Plaintiff overtime. Id. The Amended Complaint further asserts that, on
December 21, 2013, Plaintiff asked Giamalvo to be paid overtime premiums for all hours worked
in excess of 40 per week. Am. Compl. ¶ 40. Giamalvo allegedly “told the Plaintiff that he
would not pay the overtime premium, shouted expletives, and told him ‘you can leave.’”
Id. ¶ 41. Plaintiff asserts that “Defendants are aware or should have been aware that federal law
required them to properly record all hours worked by the Plaintiff,” and “to pay overtime
premiums to the Plaintiff for hours worked in excess of 40 per workweek.” Id. ¶¶ 38-39.
Accordingly, Plaintiff alleges that Defendants’ violations of the FLSA and the NYLL “have been
willful.” Id. ¶¶ 55, 63.
Based on the foregoing allegations, Plaintiff brings this action, individually and on behalf
of all those employees similarly situated, to recover for Defendants’ violations of the FLSA and
NYLL. Plaintiff now seeks to conditionally certify the FLSA claims pursuant to 29 U.S.C.
§ 216(b).
II.
LEGAL STANDARD
The FLSA provides, in pertinent part, as follows:
Any employer who violates the provisions of section 206 or section
207 of this title shall be liable to the employee or employees affected
in the amount of their unpaid minimum wages, or their unpaid
overtime compensation, as the case may be, and in an additional
5
equal amount as liquidated damages. . . . An action to recover . . .
may be maintained against any employer (including a public
agency) in any Federal or State court of competent jurisdiction by
any one or more employees for and in behalf of himself or
themselves and other employees similarly situated. No employee
shall be a party plaintiff to any such action unless he gives his
consent in writing to become such a party and such consent is filed
in the court in which such action is brought.
29 U.S.C. § 216(b).
Section 216(b) provides an employee with a private right of action to recover overtime
compensation and/or minimum wages. Id.; Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 57
(E.D.N.Y. 2011); Bifulco v. Mort. Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009); Gjurovich v.
Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 101, 103 (S.D.N.Y. 2003). “Although the FLSA
does not contain a class certification requirement, such orders are often referred to in terms of
‘certifying a class.’” Bifulco, 262 F.R.D. at 212 (citations omitted).
Courts within the Second Circuit apply a two-step analysis to determine whether an
action should be certified as an FLSA collective action. See Myers v. Hertz Corp., 624 F.3d 537,
544-45 (2d Cir. 2010) (noting that district courts within this Circuit have “coalesced around a
two-step method” for analyzing collective action certification); Alvarez v. IBM Restaurants Inc.,
839 F. Supp. 2d 580, 583 (E.D.N.Y. 2012); Bijoux v. Amerigroup New York, LLC, No. 14-CV3891, 2015 WL 4505835, at *2 (E.D.N.Y. July 23, 2015) report and recommendation adopted,
2015 WL 5444944 (E.D.N.Y. Sept. 15, 2015); Amador v. Morgan Stanley & Co., LLC, No. 11CV-4326, 2013 WL 494020, at *2 (S.D.N.Y. Feb. 7, 2013). First, the court determines whether
the proposed class members are “similarly situated.” McGlone v. Contract Callers, Inc., 867 F.
Supp. 2d 438, 442 (S.D.N.Y. 2012); Rubery v. Buth-Na-Bodhaige, Inc., 569 F. Supp. 2d 334, 336
(W.D.N.Y. 2008); Rodolico v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y. 2001). If the court
decides in the affirmative, then the proposed class members must consent in writing to be bound
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by the result of the suit, or “opt-in.” McGlone, 867 F. Supp. 2d at 442; see 29 U.S.C. § 216(b).
The second step, which typically occurs after the completion of discovery, requires the court to
make factual findings whether the class members are actually similarly situated. Rosario v.
Valentine Ave. Discount Store, Co., 828 F. Supp. 2d 508, 514 (E.D.N.Y. 2011); Bifulco, 262
F.R.D. at 212. “At that juncture, the court examines the evidentiary record to determine whether
the ‘opt-in’ plaintiffs are, in fact, similarly situated to the named plaintiff.” Bifulco, 262 F.R.D.
at 212 (quotations omitted).
The instant motion concerns only the first step: whether the proposed opt-in members are
“similarly situated” such that conditional certification should be granted. At this stage, “the
evidentiary standard is lenient,” Rubery, 569 F. Supp. 2d at 336, and plaintiffs need only “make a
‘modest factual showing’ that they and potential opt-in plaintiffs ‘together were victims of a
common policy or plan that violated the law.’” Myers, 624 F.3d at 555 (quoting Hoffmann v.
Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)); see, e.g., Perez v. Allstate Ins. Co., No.
11-CV-1812, 2014 WL 4635745, at *5 (E.D.N.Y. Sept. 16, 2014); Trinidad v. Pret A Manger
(USA) Ltd., 962 F. Supp. 2d 545, 552 (S.D.N.Y. 2013); Cano v. Four M Food Corp., No. 08-CV3005, 2009 WL 5710143, at *3 (E.D.N.Y. Feb 3, 2009); Doucoure v. Matlyn Food, Inc., 554 F.
Supp. 2d 369, 372 (E.D.N.Y. 2008). “In making this showing, ‘nothing more than substantial
allegations that the putative class members were together the victims of a single decision, policy
or plan’ is required.” Sexton v. Franklin First Fin., Ltd., No. 08-CV-4950, 2009 WL 1706535, at
*3 (E.D.N.Y. June 16, 2009) (quoting Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y.
2005)). Moreover, courts have repeatedly stated that Section 216(b)’s “similarly situated”
requirement is “considerably less stringent” than the requirements for class certification under
Federal Rule of Civil Procedure 23, and “that a party seeking to maintain a collective action need
7
not meet the requirements of Rule 23 for class certification.” Rodolico, 199 F.R.D. at 481
(collecting cases); see Dilonez v. Fox Linen Serv., Inc., 35 F. Supp. 3d 247, 252 (E.D.N.Y. 2014)
(stating that a collective action under the FLSA “is different than a typical class action under the
Federal Rules of Civil Procedure, the strict requirements of which – numerosity, commonality,
typicality, and adequate representation – do not apply to a collective action”).
At the initial certification stage, courts do not require proof of an actual FLSA violation,
“but rather that a ‘factual nexus’ exists between the plaintiff’s situation and the situation of other
potential plaintiffs.” Sobczak v. AWL Indus., Inc., 540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007)
(quoting Wraga v. Marble Lite, Inc., No. 05-CV-5038, 2006 WL 2443554, at *1 (E.D.N.Y. Aug.
22, 2006)); see Fa Ting Wang v. Empire State Auto Corp., No. 14-CV-1491, 2015 WL 4603117,
at *6 (E.D.N.Y. 2015); Calderon v. King Umberto, Inc., 892 F. Supp. 2d 456, 459 (E.D.N.Y.
2012). This determination is typically “based on the pleadings, affidavits and declarations”
submitted by the plaintiff or plaintiffs. See Fa Ting Wang, 2015 WL 4603117, at *6; Robles v.
Liberty Rest. Supply Corp., No. 12-CV-5021, 2013 WL 6684954, at *5 (E.D.N.Y. Dec. 18,
2013); Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006) (court’s initial
determination based on “pleadings and affidavits”); see also Hallissey v. Am. Online, Inc., No.
99-CV-3785, 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008) (“Plaintiffs may satisfy this
requirement by relying on their own pleadings, affidavits, declarations, or the affidavits and
declarations of other potential class members.”).
“[A]lthough the burden on the plaintiff at this preliminary stage is modest, ‘it is not nonexistent.’” Boice v. M+W U.S., Inc., No. 14-CV-0505, --- F. Supp. 3d ---, 2015 WL 5316115, at
*11 (N.D.N.Y. Sept. 11, 2015) (quoting Khan v. Airport Mgmt. Servs., LLC, No. 10–CV–7735,
2011 WL 5597371, at *5 (S.D.N.Y. Nov. 16, 2011)). As the Second Circuit has explained,
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“[t]he ‘modest factual showing’ cannot be satisfied simply by ‘unsupported assertions.’” Myers,
624 F.3d at 555 (quoting Dybach v. State of Fla. Dep't of Corrections, 942 F.2d 1562, 1567
(11th Cir. 1991)); see Morales v. Plantworks, Inc., No. 05-CV-2349, 2006 WL 278154, at *3
(S.D.N.Y. Feb. 2, 2006) (stating that “conclusory allegations are not enough” to meet the
“modest factual showing” at the first stage of collective action certification).
However, the standard of proof should still remain “low . . . because the purpose of this
first stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist.” Myers,
624 F.3d at 555 (citing Hoffman, 982 F. Supp. at 261) (emphasis in original); see Trinidad, 962
F. Supp. 2d at 553. With this in mind, courts have routinely found that the allegations in the
pleadings and the “personal observations of one plaintiff’s affidavit” are “sufficient to make the
modest factual showing necessary to conditionally certify [a] class.” Hernandez v. NGM Mgmt.
Grp. LLC, No. 12-CV-7795, 2013 WL 5303766, at *3 (S.D.N.Y. Sept. 20, 2013) (collecting
cases); see Bhumithanarn v. 22 Noodle Mkt. Corp., No. 14-CV-2625, 2015 WL 4240985, at *3
(S.D.N.Y. July 13, 2015) (finding that the allegations in the complaint and the affidavit of one
named plaintiff “met the minimal burden at this preliminary stage of demonstrating that [the
plaintiffs] were subject to a common policy or practice and were ‘similarly situated’ to one
another and to potential opt-in plaintiffs”); Kemper v. Westbury Operating Corp., No. CV 120895, 2012 WL 4976122, at *2 (E.D.N.Y. Oct. 17, 2012) (granting conditional certification for
overtime claims based on affidavit of the named plaintiff); Khamsiri v. George & Frank's
Japanese Noodle Rest. Inc., No. 12-CV-265, 2012 WL 1981507, at *1 (S.D.N.Y. June 1, 2012)
(granting motion for conditional certification based on declaration by the plaintiff “confirming
that she and other non-exempt employees employed by defendants in tipped positions, who
performed work similar to hers, were, inter alia, paid less than the statutory minimum wage and
9
not paid overtime pay”) (citing Bowens v. Atlantic Maintenance Corp., 546 F. Supp. 2d 55, 82
(E.D.N.Y. 2008)); Wraga, 2006 WL 2443554, at *2 (granting motion to certify collective action
based on single plaintiff’s affidavit alleging failure to pay overtime where he stated that he was
aware, based upon personal conversations, of approximately 18 other employees who were
subject to the same policies); see also Doucoure, 554 F. Supp. 2d at 373 (permitting preliminary
certification where plaintiff offered his complaint which contended that he routinely worked in
excess of forty hours per week, the defendant failed to pay him overtime, and there were
similarly situated hourly employees also denied overtime).
IV.
DISCUSSION
A.
Conditional Certification
Plaintiff seeks conditional certification as to the following group:
All servers, busboys and kitchen workers of The Metropolitan who
have been employed at any time from December 28, 2012 until the
present.
[Proposed] Notice of Pendency of Lawsuit (“Proposed Notice”), attached as Ex. 1 to Pl.’s Mot.
Plaintiff asserts that he has satisfied the first step of the conditional certification analysis – that
is, he has adequately shown that there are other similarly situated employees “who were subject
to [Defendants’] common policy of failing to pay overtime at the overtime rate by, inter alia,
using a two punch card system.” Pl.’s Mot. at 4.
In moving for conditional certification, Plaintiff relies on the facts alleged in the
Amended Complaint, his own declaration, employee time cards produced by Defendants, see
DE 31-37, and the declaration of Debra Nimkoff, a paralegal for Plaintiff’s counsel who
analyzed the time cards. See Declaration of Debra Nimkoff (“Nimkoff Decl.”) [DE 30]. In her
declaration, Nimkoff explains that she analyzed time cards from a two-year time period,
10
beginning January 2013 and ending December 2014, by selecting a sample of four months from
each year and reviewing all of the time cards in each pay period. See Nimkoff Decl. ¶¶ 6-7. The
time cards are “sequentially numbered from 000-099” and Nimkoff “recorded the number of
cards in each pay period, the sequence of the cards, and the number of cards missing from within
the sequences in the sample.” Id. ¶ 7. For 2013, Nimkoff reviewed the time cards for February,
June, August and October. Id. ¶ 9. “Each month sampled had an average ‘% of Cards not in
sequential order’ of over 20%, and ranging from 22% to 29% missing.” Id. For 2014, “two
months in the sample had 16% of the cards out of sequential order and two months had 22.3%
and 24.0% of the cards missing.” Id. Nimkoff also calculated the percentage of time cards from
her sample which “revealed days with the Spread of Hours greater than 10 hours” in one day. Id.
¶ 10. In the sample for 2013, 104 time cards, or 18%, “recorded days with hours extending 10
hours or longer.” Id. ¶ 11. In the sample for 2014, 69 time cards, or 13.4%, “recorded days with
hours extending 10 hours or longer.” Id. Nimkoff points out that, in 2014, “the percent of cards
with days longer than 10 hours appeared to continually decrease as the year progressed, from
18.3% in January, down to 9.1% in July, and 3.2% in September.” Id.
In opposition to the motion, Defendants have submitted the declaration of defendant
Giamalvo, the President of JMJ.3 Giamalvo Decl. ¶ 1. Giamalvo disputes several of the factual
3
Defendants have also submitted a three-page declaration by their counsel, Alan M. Davis,
Esq. See Declaration of Alan M. Davis (“Davis Declaration”) [DE 40]. The Court has reviewed
the Davis Declaration and finds that, although it does not cite case law, the declaration largely
reiterates the factual and legal arguments contained in the Giamalvo Declaration. See, e.g., id.
¶ 7. (“Mr. Giamalvo states that for the most part, The Metropolitan only hosts events on Friday
evenings, Saturdays and Sundays, and that the servers, runners and bartenders only work one
shift per day. As such, the servers, runners and bartenders do not work overtime.”); id. ¶ 8
(“Based on the foregoing, the only employees of The Metropolitan that are similarly situated to
Plaintiff, Orbin Zaldivar, are those employees that are classified as kitchen staff.”).
“‘Declarations of counsel are generally properly used only to describe the documents attached to
them as exhibits for the Court’s consideration, not to advance factual averments or legal
11
allegations set forth in the Amended Complaint and Plaintiff’s declaration. First, Giamalvo
asserts that Plaintiff could not have worked at the Metropolitan “from 1:00 p.m. to 1:00 a.m.
every day from Tuesday to Sunday” as he alleges because “the Metropolitan only hosts events on
Friday evenings, Saturdays and Sundays” and “[t]here would be absolutely no reason for a
dishwasher and food preparer to work seventy-two hours in any given week.” Id. ¶ 4. Second,
Giamalvo maintains that Plaintiff “rarely worked overtime but when he did he was paid for his
overtime.” Id. ¶ 5. To support this contention, Giamalvo has submitted copies of ten of
Plaintiff’s time cards from April 2013 through November 2013, which, according to Giamalvo,
show that Plaintiff “was paid overtime for the weeks indicated by the time cards.” Id. Third,
Giamalvo disputes Plaintiff’s claim that the servers and busboys at the Metropolitan also were
not paid time-and-a-half for overtime. Id. ¶ 6. Giamalvo contends that the Metropolitan does
not employ any busboys, since “[t]ables are bussed by their servers.” Id. Rather, the
Metropolitan employs “servers, runners, and bartenders” in addition to the kitchen staff – the
runners being the “employees who bring the food from the kitchen to the rooms where the events
are being held.” Id. Giamalvo further asserts that the servers, runners, and bartenders “only
work one shift per day” when the Metropolitan hosts events on Friday evenings, Saturdays and
Sundays, so it would be “impossible” for these employees “to work overtime.” Id. ¶ 7. Fourth,
arguments.’” East End Eruv Ass’n, Inc. v. Town of Southampton, No. CV 13–CV–4810, 2014
WL 4826226, at *9 (E.D.N.Y. Sept. 24, 2014) (quoting Clark v. Kitt, No. 12–CV–8061, 2014
WL 4054284, at *7 (S.D.N.Y. Aug.15, 2014)). Although such practice may be acceptable in
state court proceedings, it is not acceptable in federal court. See Mercer v. Mercer, No. 13–CV–
5686, 2014 WL 3654667, at *5 (E.D.N.Y. May 22, 2014). The Court points out that the
distinction between the Nimkoff Declaration and the Davis Declaration, namely, that Nimkoff
reviewed punch cards provided by Defendants during discovery and summarized the contents,
without advancing legal arguments. Accordingly, the Court will not consider the Davis
Declaration in deciding this motion. See East End Eruv, 2014 WL 4826226, at *9-*10; Clark,
2014 WL 4054284, at *7.
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Giamalvo maintains that the only employees who are similarly situated to Plaintiff “are those
workers that are classified as kitchen staff.” Id. ¶ 9. During the time that JMJ has operated the
Metropolitan, Giamalvo notes that it has employed approximately five kitchen staff, three
bartenders, and 46 servers and runners. See id. ¶ 8.
Having reviewed the motion for conditional certification, the Court finds that Plaintiff
has made the “modest factual showing” necessary to demonstrate that he and the potential
plaintiffs together “were victims of a common policy or plan that violated the law.” See
Doucoure, 554 F. Supp. 2d 369, 372; Sbarro, 982 F. Supp. at 261; Trinidad, 962 F. Supp. 2d at
552-53. Further, Plaintiff has established a “sufficient factual nexus” between his situation and
that of the putative collective. See Sobczak, 540 F. Supp. 2d at 362; Wraga, 2006 WL 2443554,
at *1.
Specifically, Plaintiff outlines in his declaration the alleged “common policy or plan”
which violated the FLSA and the NYLL. Plaintiff asserts that he regularly worked 12-hour shifts
six days a week at the Metropolitan. See Pl.’s Decl. ¶¶ 5-6. Defendants did not pay Plaintiff
overtime at the overtime rate pay, and instead paid him cash at the regular rate of pay for his
overtime hours. Id. ¶ 7. Defendants purportedly employed a “two punch card system” at the
Metropolitan during Plaintiff’s entire period of employment. Id. ¶ 10. Each week, Plaintiff
would punch two cards: a “regular punch card” and an “overtime card.” Id. ¶ 12. Plaintiff
utilized a “regular punch card” until he reached 40 hours for the week, at which point Defendants
replaced the regular punch card with an “overtime punch card.” Id. According to Plaintiff,
Defendants implemented this two punch card system “[i]n order to avoid detection in the event
of an audit, and to feign compliance with wage and hour laws.” Am. Compl. ¶ 35; see Pl.’s
13
Decl. ¶ 10. When Plaintiff complained about the denial of overtime pay to Giamalvo and his
business partner, they told him that they could not pay him overtime. Pl.’s Decl. ¶ 17; see
Am. Compl. ¶¶ 40-41.
In addition, Plaintiff’s declaration sufficiently alleges that other similarly situated
employees of Defendants did not receive proper overtime compensation. Plaintiff states that
Defendants’ practice of paying cash at the regular rate of pay for overtime hours “was not limited
to [him], but was used by the Metropolitan to deny overtime to all kitchen staff, servers, and
busboys.” Pl.’s Decl. ¶ 8. Plaintiff personally spoke with a busboy named Alberto in 2012 who
stated that he was not paid time-and-a-half for his overtime, and Plaintiff overheard a server
named Alma complain about the Metropolitan’s failure to pay overtime wages. Id. ¶¶ 15-16.
Another employee told Plaintiff that, since the commencement of this lawsuit, the Metropolitan
no longer has its employees work overtime. Id. ¶ 18. Plaintiff further maintains that all busboys,
servers, and kitchen workers used the “two punch card system” while he worked at the
Metropolitan. Id. ¶ 14. At that time, the Metropolitan employed four kitchen staff, “at least 12
busboys and [four] servers.” Id. ¶ 9. Plaintiff also observed approximately 24 employee punch
cards in the punch card rack. Id. ¶ 11.
Finally, Plaintiff has provided a sampling of employee time cards as well as Nimkoff’s
declaration as evidentiary support for his allegations regarding the two punch card system.
Nimkoff sets forth in her declaration that between 22% and 29% of the time cards were missing
from each pay period she analyzed, while an average of 20% of the time cards were out of
sequential order. Nimkoff Decl. ¶ 9. Because time cards were “missing from the sequence”
analyzed by Nimkoff, Plaintiff asserts that the omission demonstrates that Defendants were
“secreting a second time card” by using a two punch card system. Pl.’s Mot. at 3. However, it is
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not appropriate at this preliminary certification stage for the Court to determine whether this
evidence, in fact, shows that Defendants were “secreting” a second time card, or to consider what
(if any) weight should be given to the assertions set forth in Nimkoff’s declaration. See
generally, Bates v. Valente Landscaping, Inc., No. 14-CV-1434, 2014 WL 2111080, at *1
(E.D.N.Y. May 21, 2014) (noting court is not to “resolve factual disputes, decide substantive
issues going to the merits, or make credibility determinations” during the first step in the
certification process) (citation and internal quotation marks omitted); Hamadou v. Hess Corp.,
915 F. Supp. 2d 651, 665 (S.D.N.Y. 2013) (“[T]he Court at this point does not weigh the
evidence or speculate concerning plaintiffs’ ultimate ability to succeed on the merits.”) (internal
quotation marks omitted). Rather, the Court is satisfied that the proffered evidence provides
some support, however marginal, to Plaintiff’s factual showing that he and the potential opt-in
plaintiffs were subject to an unlawful policy or practice which deprived them of overtime
compensation.
As discussed, a plaintiff in an FLSA case must meet only a minimal evidentiary burden at
the collective action certification stage. See Damassia v. Duane Reade Inc., No. 04-CV-8819,
2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5, 2006) (characterizing a plaintiff’s burden at this stage
as “minimal”); Lee, 236 F.R.D. at 197 (recognizing plaintiff’s minimal burden at this stage). The
Court finds that the allegations set forth in Plaintiff’s declaration, together with the facts alleged
in the Amended Complaint, establish enough of a factual nexus between Plaintiff’s
circumstances and the circumstances of other current and former kitchen workers, busboys, and
servers. See generally, Bhumithanarn, 2015 WL 4240985, at *3; Kemper, 2012 WL 4976122, at
*2; Khamsiri, 2012 WL 1981507, at *1. Thus, Plaintiff has satisfied his modest burden at this
15
stage of the litigation and has provided a sufficient basis for the Court to grant conditional
certification.
The Court finds Defendants’ arguments in opposition to the motion to be unpersuasive.
Primarily, Defendants contest several factual allegations underlying Plaintiff’s claims, such as:
(1) the number of hours per week Plaintiff worked at the Metropolitan; (2) whether Plaintiff
worked overtime; (3) whether Plaintiff was paid overtime wages; (4) whether the Metropolitan
employed busboys; and (5) whether the servers, runners, and busboys worked overtime and were
paid overtime wages. See Giamalvo Decl. ¶¶ 4-7. The Court cannot resolve these disputes
without evaluating the parties’ credibility and engaging in a factual analysis – actions which, as
discussed, are inappropriate at this stage in the proceedings. See, e.g., Hamadou, 915 F. Supp.
2d at 662 (internal quotation omitted); Bates, 2014 WL 2111080, at *1; Cohen v. Gerson
Lehrman Grp., Inc., 686 F. Supp. 2d 317, 326 (S.D.N.Y. 2010) (“At [the conditional
certification] phase, the court does not resolve factual disputes, decide ultimate issues on the
merits, or make credibility determinations.”). Defendants also have submitted copies of
Plaintiff’s time cards in an attempt to rebut his assertion that he was not paid overtime wages.
See Time Cards annexed to Giamalvo Decl. [DE 40]. This proffer, too, amounts to a premature
request for the Court to weigh evidence, “which is not appropriate until the second stage after
discovery.” Flood v. Carlson Rests., Inc., No. 14-CV-2740, 2015 WL 260436, at *5 n.6
(S.D.N.Y. Jan. 20, 2015) (rejecting defendants’ efforts to weigh competing declarations and
other evidence rebutting plaintiffs’ conditional certification motion); see, e.g., Sharma v.
Burberry Ltd., 52 F. Supp. 3d 443, 456 (E.D.N.Y. 2014) (same). The Court further notes that, at
the preliminary certification stage, “the focus of the court’s inquiry is not on the defendants’
evidence, but on whether the plaintiff[] have made their requisite showing.” Bijoux, 2015 WL
16
4505835, at *13 (internal quotation marks and alteration omitted). For these reasons, the Court
need not consider factual disputes and evidence proffered by Defendants since such information
does not impact the Court’s determination that conditional certification is warranted here.
Defendants further contend the Plaintiff may only be considered similarly situated to the
“five kitchen staff employees” who worked at the Metropolitan during the time it has been
operated by JMJ. Giamlavo Decl. ¶¶ 8-9. Defendants have not adequately explained their basis
for this contention nor have they provided any legal authority to support it. To the extent
Defendants are arguing that, as a former dishwasher and kitchen worker, Plaintiff is not similarly
situated to putative opt-in plaintiffs who perform different job functions – such as servers,
runners, bartenders, and busboys – this argument is unavailing. “Courts in this district and
elsewhere routinely reject attempts to limit certification based on job function.” Mendoza v.
Little Luke, Inc., No. CV 14-3416, 2015 WL 5918580, at *3 (E.D.N.Y. Oct. 9, 2015) (citing Ritz
v. Mike Rory Corp., No. 12-CV-367, 2013 WL 1799974, at *2 (E.D.N.Y. Apr. 30, 2013)
(rejecting limiting conditional class to bartenders and instead, including all tipped service
workers in conditional class); Calderon., 892 F. Supp. 2d at 464 (refusing to limit certification to
positions held by named plaintiffs); Iglesias–Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363,
368 (S.D.N.Y.2007) (rejecting as frivolous defendant's argument that certification should be
limited to duck feeders); Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 391 (E.D.N.Y. 2010)
(certifying employees despite varying positions and functions)). Once again, the focus at the
initial certification stage “is on the issue of whether the Plaintiffs were the victims of a common
policy or plan which violated the law—and less so on whether the Plaintiffs performed identical
job functions.” Cohan v. Columbia Sussex Mgmt., LLC, No. 12- CV-3203, 2013 WL 8367807,
at *4 (E.D.N.Y. Sept. 19, 2013) (granting certification where the plaintiffs “submitted evidence
17
which suggests that the allegedly improper overtime policy was not limited to banquet servers,
but rather was applied to all service employees”); see also Rosario, 828 F. Supp. 2d at 517 (“It is
not necessary for the purposes of conditional certification that the prospective class members all
performed the same duties, or worked during the same time periods, or worked at the same
locations as the named plaintiffs.” (alteration and quotation marks omitted)). Accordingly, “[i]n
the Second Circuit, courts routinely find employees similarly situated ‘despite not occupying the
same positions or performing the same job functions and in the same locations, provided that
they are subject to a common unlawful policy or practice.’” Guaman v. 5 M Corp., No. 13-CV3820, 2013 WL 5745905, at *4 (S.D.N.Y. Oct. 23, 2013) (quoting Summa, 715 F. Supp. 2d at
390).
Here, Plaintiff has made the required modest factual showing that he and the potential
collective action members were victims of a common wage and overtime compensation practice
which violated the FLSA, and thus were similarly situated. See, e.g., Cohan, 2013 WL 8367807,
at *4. The fact that there may be “variations in positions and job functions” among the proposed
class of servers, busboys, and kitchen workers which the Plaintiff seeks to conditionally certify
“do[es] not, at this preliminary stage, change th[is] result.” Summa, 715 F. Supp. 2d at 391; see
generally Espinoza v. 953 Associates LLC, 280 F.R.D. 113, 126 (S.D.N.Y. 2011) (certifying
class, including servers, hosts, delivery-persons, runners, bus-persons, porters, bartenders, cooks,
food preparers, dishwashers, and flyer distributors where plaintiffs provided evidence that their
payroll checks did not accurately reflect all hours that they worked and employees were made to
“clock out” for an hour each shift); Williams v. Twenty Ones, Inc., No. 07-CV-3978, 2008 WL
2690734, at *1–2 (S.D.N.Y. June 30, 2008) (certifying FLSA collective action of sports bar's
office workers, waiters, bartenders, runners, and bussers where various violations of the FLSA
18
alleged); Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 320, 322 (S.D.N.Y. 2007)
(certifying class of “all non-exempt persons employed by Defendants in any hourly position,
including but not limited to waiters, bartenders, runners and/or bussers” where “all putative class
members are employees of the same restaurant enterprise and allege the same types of FLSA
violations”).
Moreover, to the extent that Defendants imply that certification should be denied because
Plaintiff has not identified a large enough number of potential opt-in plaintiffs, that argument,
too, must fail. It is well-settled that, under the FLSA, “‘no showing of numerosity . . . need be
made.’” Iglesias–Mendoza, 239 F.R.D. at 368 (quoting Young, 229 F.R.D. at 54). Rather,
“‘courts have conditionally certified collective actions under the FLSA where plaintiffs, based on
their firsthand observations, identify an approximate class of similarly situated individuals.’”
Romero v. La Revise Associates, L.L.C., 968 F. Supp. 2d 639, 646 (S.D.N.Y. 2013) (quoting
Hernandez v. Immortal Rise, Inc., 11-CV-4360, 2012 WL 4369746, at *4 (E.D.N.Y. Sept. 24,
2012) (holding that plaintiffs had met the modest showing where they alleged that based on their
conversations with their co-workers, they believe that other employees suffered the same
underpayment)); see, e.g, Iglesias–Mendoza, 239 F.R.D. at 368 (granting conditional
certification where plaintiffs alleged that to the best of their knowledge, and on the basis of their
observations, their experience was shared by members of the proposed class); Wraga, 2006 WL
2443554, at *2 (approving collective action notice where plaintiff demonstrated knowledge of
conversations between other employees and conversations between employees and defendant in
which they complained that they were improperly paid).
Here, Plaintiff has done just that, stating in his declaration (1) that he witnessed an
employee of Defendants replacing punch cards “at least 10 times” as part of the “two punch
19
card” system which “was used for all busboys, servers, and kitchen workers” at the Metropolitan;
(2) that he spoke with a busboy named Alberto who told Plaintiff “that he was not paid for
overtime at ‘time-and-a-half’”; and (3) the he overheard a server named Alma “complain to a
group of busboys and servers that she was unhappy with the Metropolitan’s not paying overtime
to them.” Pl.’s Decl. ¶¶ 13-16. “The affidavit of a plaintiff attesting to the existence of similarly
situated plaintiffs is sufficient for the purposes of a motion to approve a collective action.”
Romero, 968 F. Supp. 2d at 646; Hernandez, 2013 WL 5303766, at *3 (collecting cases); accord
Little Luke, 2015 WL 5918580, at *7 (“[I]t is often held that conditional certification of a
collective action based on the affiant’s observations of and conversations with other potential
class members can satisfy the low burden required to demonstrate that the plaintiffs and potential
plaintiffs together were victims of a common policy or plan that violated the law. . . . This is true
even if the sole support lies within one lone affidavit.” (internal citations and quotation marks
omitted)). Moreover, the fact that Plaintiff has identified potential class members only by first
name and has not identified an entire opt-in class is not fatal to his motion for conditional
certification. See, e.g., Little Luke, 2015 WL 5918580, at *7 (“[T]he fact that identification of
potential class members by only first name is not fatal to the motion.”); Iriarte v. Redwood Deli
& Catering, Inc., No. 07- CV-5062, 2008 WL 2622929, at *3 (E.D.N.Y. June 30, 2008)
(“[A]lthough plaintiff has not identified any other employees who seek to opt in, this is not fatal
in light of defendant’s failure to keep proper records, the allegations plaintiff makes in his
affidavit about observing fellow employees working overtime without proper compensation, and
the minimal burden required for certification as a collective action.”); Pefanis v. Westway Diner,
Inc., No 08-CV-002, 2008 WL 4546526, at *1 (S.D.N.Y. Oct. 8, 2008) (“The fact that no such
employee has yet joined this action does not make notice inappropriate.”).
20
Accordingly, the Court finds that Plaintiff has met his burden to show that the proposed
collective action members are generally “similarly situated.” See McGlone, 867 F. Supp. 2d at
442; Rubery, 569 F. Supp. 2d at 336. Therefore, the Court will conditionally certify the class
proposed by the Plaintiffs, as outlined below.
B.
Proposed Opt-In Class
As noted, Plaintiff moves for conditional certification of the following proposed opt-in
class:
All servers, busboys and kitchen workers of The Metropolitan who
have been employed at any time from December 28, 2012 until the
present.
See Proposed Notice [DE 29-1]. Defendants have not addressed the scope of the class definition
in their opposition.
The FLSA has a two-year statute of limitations except in the case of willful violations, for
which the statute of limitations is three years. See 29 U.S.C. § 255(a). Plaintiff asserts in his
Amended Complaint that Defendants’ violations of the FLSA were willful and the three-year
statute of limitations should apply to those claims. See Am. Compl. ¶¶ 55-56. “At the
conditional certification stage, allegations of willful conduct are sufficient to apply the three-year
statute of limitations for purposes of certifying the class.” Jie Zhang v. Wen Mei, Inc., No. 14CV -1647, 2015 WL 6442545, at *5 (E.D.N.Y. Oct. 23, 2015) (citing Summa, 715 F. Supp. 2d
at 388; Francis v. A & E Stores, Inc., No. 06–CV–1638, 2008 WL 2588851, at *3 (S.D.N.Y.
June 26, 2008) (noting that at the preliminary stage, “plaintiff's allegations of willful conduct . . .
are sufficient to support defining the class based upon the three-year statute of limitations),
adopted as modified, 2008 WL 4619858 (S.D.N.Y. Oct.16, 2008)); see Patton v. Thomson Corp.,
364 F. Supp. 2d 263, 268 n.2 (E.D.N.Y. 2005) (finding allegation of willful violation justified
21
notice based on a three-year statute of limitations period); see also Alvarez, 839 F. Supp. 2d at
587-88 (“The Plaintiffs have alleged willfulness in their Complaint . . . and the Defendants deny
these allegations. Courts in this circuit have generally held that where willfulness is in dispute, a
three year statute of limitations applies at the conditional certification stage.”). As the Amended
Complaint contains allegations of willful conduct by Defendants, the Court finds it appropriate to
apply the three-year statute of limitations under the FLSA at this stage of the proceedings. See,
e.g., Jie Zhang, 2015 WL 6442545, at *5.
With respect to the calculation of the limitations period, courts often begin counting back
from the date of the conditional certification order or the notice since the FLSA statute of
limitations continues to run until a plaintiff consents to join the action. See 29 U.S.C.
§ 256; Ritz, 2013 WL 1799974, at *3. “However, ‘because equitable tolling issues often arise as
to individual opt-in plaintiffs, courts frequently permit notice to be keyed to the three-year period
prior to the filing of the complaint, with the understanding that challenges to the timeliness of
individual plaintiffs’ actions will be entertained at a later date.’” Gaspar v. Pers. Touch Moving,
Inc., No. 13-CV-8187, 2014 WL 4593944, at *7 (S.D.N.Y. Sept. 15, 2014) (quoting Trinidad,
962 F. Supp. 2d at 564 n.14) (internal alteration omitted); see, e.g., Hamadou, 915 F. Supp. 2d at
668; Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 410 (S.D.N.Y. 2012); Guzelgurgenli v.
Prime Time Specials Inc., 883 F. Supp. 2d 340, 356 (E.D.N.Y. 2012); Whitehorn v. Wolfgang’s
Steakhouse, Inc., 767 F. Supp. 2d 445, 451 (S.D.N.Y. 2011). Additionally, in this case, Plaintiff
alleges that Defendants failed to post wage-and-hour notices in violation of NYLL § 195, which
some courts have held implicates equitable tolling. See Fa Ting Wang, 2015 WL 4603117, at
*13; Gaspar, 2014 WL 4593944, at *7 (citing Baba v. Grand Cent. P'ship, Inc., No. 99–CV–
5818, 2000 WL 1808971, at *3 (S.D.N.Y. Dec. 8, 2000)). The Court therefore concludes that
22
“the remedial purposes of the FLSA are best served” here by extending the three-year statute of
limitations from the date of the filing of the Amended Complaint in this action. Fa Ting Wang,
2015 WL 4603117, at *13; Guzelgurgenli, 883 F. Supp. 2d at 357 (“In light of potential issues
with equitable tolling, the Court agrees that, in an abundance of caution, the notice should be
sent to all relevant employees” for the period running from the date of filing of the complaint.)
(citing Whitehorn, 767 F. Supp. 2d at 451); see Trinidad, 962 F. Supp. 2d at 564 (granting
conditional certification for non-exempt employees who worked from the defendant from three
years prior to the filing of the amended complaint).
Thus, FLSA conditional certification in this action is limited to claims arising after March
27, 2012 to the present. The Court notes, however, that Plaintiff has prospectively limited the
proposed opt-in class to all servers, busboys, and kitchen workers who worked for Defendants
from December 28, 2012 (i.e., approximately two years and three months prior to the filing of
the Amended Complaint) to the present. See Proposed Notice. The Court presumes that Plaintiff
designated this time period because Defendants assert in their Answer that they have been
operating the Metropolitan since December 28, 2012. See Answer [DE 10], at ¶ 2.
Based on the foregoing analysis, the Court grants conditional certification to the opt-in
class proposed by Plaintiffs. The Court designates this class as follows:
All servers, busboys and kitchen workers employed by the
Metropolitan at any time from December 28, 2012 until the
present.
C.
Discovery of Identifying Information
Plaintiff requests that the Court direct Defendants to produce a computer-readable data
file containing the names, last-known mailing addresses, telephone numbers, dates of birth, work
23
locations, and dates of employment of potential collective members. See Pl.’s Mot. at 1-2.
Defendants have not addressed this request.
“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.” Velasquez v. Digital Page, Inc., No. 11-CV-3892, 2014 WL 2048425, at
*15 (E.D.N.Y. May 19, 2014) (citing Puglisi v. TD Bank, N.A., No. 13-CV-637, 998 F. Supp. 2d
95, 102 (E.D.N.Y. 2014) (“In regard to requests for names, last known addresses, telephone
numbers (both home and mobile), e-mail addresses, and dates of employment, courts often grant
this kind of request in connection with a conditional certification of an FLSA collective action.”)
(internal quotations and citations omitted); Rosario, 828 F. Supp. 2d at 522 (“The Court finds the
disclosure of potential opt-in plaintiffs’ names, last known addresses, telephone numbers, and
dates of employment to be appropriate.”); In re Penthouse Executive Club Comp. Litig., No. 10CV-1145, 2010 WL 4340255, at *5-6, (S.D.N.Y. Oct. 26, 2010) (finding the disclosure of
names, addresses, telephone numbers, and dates of employment to be “essential to identifying
potential opt-in plaintiffs”)); see, e.g., Fa Ting Wang, 2015 WL 4603117, at *14 (collecting
cases from the Eastern and Southern Districts of New York). Courts are, however, reluctant to
authorize disclosure of private information, such as dates of birth and social security numbers, in
the first instance and without a showing that the information is necessary for the plaintiff to
notify potential opt-ins of the collective action. See, e.g., Jie Zhang, 2015 WL 6442545, at *7
(granting the plaintiffs’ request for a list of the names, addresses, phone numbers, last-known
email addresses, work locations, and dates of employment for potential plaintiffs, but declining
request for social security numbers because the plaintiffs “have not established a particularized
need” for this information); Velasquez, 2014 WL 2048425, at *15 (directing the defendants to
24
provide the plaintiffs with a list of the names, addresses, telephone numbers, email addresses,
and dates of employment for all potential class members, but not their dates of birth and social
security numbers); Brabham v. Mega Tempering & Glass Corp., No. 13-CV-54, 2013 WL
3357722, at *8 (E.D.N.Y. July 3, 2013) (“The purpose of the production of potential opt-in
plaintiffs is to enable Plaintiffs to notify them of the collective action . . . The production of
names, addresses, phone numbers and email addresses plainly serves that purpose, while birth
dates and Social Security numbers are not necessary for Plaintiffs to perform their notification
task.”) (internal citation omitted); Rosario, 828 F. Supp. 2d at 522 (“In light of the privacy
concerns regarding employees’ dates of birth and social security numbers, the production of such
information is unnecessary at this juncture. If plaintiff is unable to effectuate notice on some
potential opt-in plaintiffs with the information that is produced, plaintiff may renew his
application for additional information regarding those specific employees.”).
Accordingly, the Court is directing Defendants to provide Plaintiff with a computerreadable list of the names, addresses, telephone numbers, email addresses, and dates of
employment for all potential class members who worked at the Metropolitan for the relevant
time period. The list is to be furnished within 14 days of the entry of this Order and is to be
treated by the parties as confidential. To the extent that the parties have not previously entered
into a Stipulation and Order of Confidentiality, they are ordered to do so forthwith for this
purpose. If Plaintiff is unable to effectuate notice on some potential opt-in plaintiffs with the
information that is produced, Plaintiff may renew his application for the additional information.
25
D.
Form of Notice of Pendency and Consent to Join Form
Plaintiff has provided for Court approval a Proposed Notice and Consent to Join form
written in both English and Spanish. See DE 29-1. Defendants have not addressed the content
of the proposed Notice or the Consent form in their opposition.
“[T]he district court has discretion regarding the form and content of the notice.” In re
Penthouse Exec. Club Comp. Litig., 2010 WL 4340255, at *4–5; ABC Carpet, 236 F.R.D. at 202
(“[T]he Supreme Court has noted that the “details” of notice should be left to the broad
discretion of the trial court.”) (citing Hoffmann–La Roche v. Sperling, 493 U.S. 165, 170 (1989)).
Because Defendants did not address the contents of the Proposed Notice of Pendency, the Court
is giving them a brief opportunity to do so. Any objections to the Proposed Notice must be filed
with the Court no later than March 4, 2016. Any objections must be received by that date or will
be deemed waived. Immediately after March 4, 2016, the Court intends to issue its ruling
regarding the content of the Notice.
V.
CONCLUSION
For all of the foregoing reasons, Plaintiff’s motion for conditional certification as an
FLSA collective action pursuant to Section 216(b) is GRANTED subject to the limitations
discussed herein. The Court certifies the following group:
All servers, busboys and kitchen workers employed by The
Metropolitan at any time from December 28, 2012 until the present.
The Court further orders that:
1.
Within 14 days of entry of this Order, Defendants are to produce a list of the
names, addresses, telephone numbers, email addresses, and dates of employment for all servers,
busboys, and kitchen workers who worked at the Metropolitan dating back to December 28,
2012;
26
2.
Defendants are to file their objections to the Proposed Notice of Pendency (if any)
by March 4, 2016.
SO ORDERED.
Dated: Central Islip, New York
February 26, 2016
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge
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