Zhang et al v. Wen Mei Inc. et al
AMENDED MEMORANDUM & ORDER replacing Memorandum & Order 96 , which is hereby vacated, and granting 24 Motion to Certify FLSA Collective Action for the reasons set forth in the attached order. Plaintiffs' proposed Notice of Pendency and consent forms are approved, see DE [97-1], [97-2], and shall be mailed and posted no later than 11/16/15. Ordered by Magistrate Judge Steven I. Locke on 10/23/2015. (Disbrow, Sandra)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JIE ZHANG a/k/a JIMMY ZHANG,
RU HAO LIU a/k/a JASON LIU, XIU QIN LIN,
HSIA SHEN CHENG, and CHEIN WEN
HSEIH a/k/a KEVIN HSIEH, on behalf of
themselves and all others similarly situated,
MEMORANDUM & ORDER1
CV14-1647 (JS) (SIL)
-againstWEN MEI, INC. d/b/a HUNAN DYNASTY,
HUNAN DYNASTY AT LEVITTOWN, INC.
d/b/a HUNAN DYNASTY FENNY JAPANESE
AND CHINESE RESTAURANT d/b/a HUNAN
DYNASTY, XIANG RONG CHEN a/k/a KEVIN
CHEN, CAI FEN CHEN, and CINDY CHEN,
STEVEN I. LOCKE, Magistrate Judge:
Plaintiffs Jie Zhang a/k/a Jimmy Zhang, Ru Hao Liu a/k/a Jason Liu, Xiu Qin Lin, Hsia
Sheng Cheng, and Chein Wen Hseih a/k/a Kevin Hsieh (“Plaintiffs”) bring this action on behalf of
themselves and all similarly situated persons seeking unpaid overtime compensation from
Defendants Wen Mei, Inc. d/b/a Hunan Dynasty (“Wen Mei”), Hunan Dynasty at Levittown, Inc.
d/b/a Hunan Dynasty (“Hunan Dynasty at Levittown”), Fenny Japanese and Chinese Restaurant Inc.
d/b/a Hunan Dynasty (“Fenny Restaurant”), Xiang Rong Chen a/k/a Kevin Chen (“Kevin Chen”),
Cai Fen Chen, and Cindy Chen (collectively, “Defendants”), pursuant to the Fair Labor Standards
Act of 1938 (“FLSA” or the “Act”), as amended, 29 U.S.C. §§ 201 et seq. and New York Labor Law
This Amended Memorandum and Order replaces the Memorandum and Order dated September 30,
2015 and docketed as entry , which is hereby VACATED.
Currently before the Court on referral for decision from United States District Judge Joanna
Seybert is Plaintiffs’ motion for conditional certification as a collective action and for notice of
pendency to potential collective action members pursuant to 29 U.S.C. § 216(b). Docket Entry
(“DE”) . The motion seeks an order: (1) conditionally certifying this matter as an FLSA
collective action; (2) requiring Defendants to provide the names and last known mailing addresses,
telephone numbers, email addresses, social security numbers, work locations and dates of
employment for all of Defendants’ non-managerial employees who worked between March 25, 20122
and the date of decision on this motion; (3) authorizing Plaintiffs to send notice of this action to the
putative collective action members; (4) authorizing equitable tolling of the statute of limitations
pending expiration of the opt-in period; and (5) ordering Defendants to post the approved Proposed
Notice in conspicuous locations where the putative collective action members worked or are now
working. DE . For the reasons and to the extent set forth below, the motion is granted.
At the time the motion for conditional certification was filed, the operative complaint was
the Amended Complaint dated October 27, 2014. See DE . Subsequent to the filing of the
motion, Plaintiffs were given permission to file a Second Amended Complaint (“SAC”), which they
did on May 12, 2015. See DE . The SAC added Defendants Fenny Restaurant, Cai Fen Chen,
and Cindy Chen (the “New Defendants”), but did not substantially alter the allegations regarding
Plaintiffs’ claims. Accordingly, the facts set forth below are taken from the SAC and from
Plaintiffs’ Affidavits in support of their motion. See Affidavits of Jie Zhang (“Zhang Aff.”), DE [26-
The original motion used the date March 12, 2011, three years prior to filing of the complaint.
Plaintiffs revised this date, however, after belatedly filing Consent to Become Party Plaintiff forms on March
3], Ru Hao Liu (“Liu Aff.”), DE [26-4], Xiu Qin Lin (“Lin Aff.”), DE [26-5], Hsia Sheng Cheng
(“Cheng Aff.”), DE [26-6], and Chien Wen Hsieh (“Hsieh Aff.”), DE [26-7].
Plaintiffs were all employees of a restaurant operated at 2993 Hempstead Turnpike,
Levittown, New York (“Hunan Dynasty” or “the Restaurant”). Defendants comprise various
corporate entities and individuals. The three corporate entities, Wen Mei, Hunan Dynasty at
Levittown, and Fenny Restaurant, are all named as “doing business as” Hunan Dynasty at the
Levittown location. Defendant Kevin Chen allegedly “serves as owner, operator, manager, principal
and/or agent of the Defendant Corporations and through these corporate entities, operates the
restaurant as joint or unified.” SAC ¶ 15. Defendant Cai Fen Chen is Kevin Chen’s wife, and
Defendant Cindy Chen is Kevin Chen’s sister. SAC ¶¶ 18-19. Plaintiffs claim that Kevin Chen
“remains in control of the business, either individually or by sharing common control with [his wife]
Cai Fen Chen and [his sister] Cindy Chen.” Id. ¶ 20. Cai Fen Chen allegedly serves as owner,
operator, principal and/or agent of Defendant Fenny Restaurant, SAC ¶ 16, and Cindy Chen is the
“president, cashier, manager, principal and/or agent of [Defendant] Wen Mei.” SAC ¶ 17. The
liquor license at Hunan Dynasty is listed as held by Fenny Restaurant, which designates Cai Fen
Chen as its principal. SAC ¶ 14. The SAC does not state whether Fenny Restaurant operates at
another location or is merely the corporate owner of Hunan Dynasty.
Defendant Hunan Dynasty at Levittown operated the Restaurant from October 1, 2003 to
August 15, 2012. SAC ¶¶ 4-5. The implication from the SAC is that Defendant Hunan Dynasty at
Levittown ceased its operation of the restaurant on August 15, 2012, but that one or more of the other
Defendants continued the business from that time to date. For example, the SAC alleges that Fenny
Restaurant was incorporated on May 30, 2014 with the same principal place of business, but there
is no allegation that it is currently operating at that location. The Court notes, however, that the SAC
was filed to add the New Defendants, and that Judge Seybert ordered expedited discovery
specifically to determine the interrelatedness of the co-Defendants.
In any event, Plaintiffs allege that they were employed by Defendants at the Restaurant.
Plaintiffs Lin, Cheng, and Hsieh worked as waiters, and Zhang worked as both a waiter and a
temporary replacement waiter. SAC ¶¶ 21-22, 26-29. Plaintiff Liu worked as both a waiter and a
non-tipped packer assistant. SAC ¶¶ 23-25. Plaintiffs’ alleged periods of employment are as
Pl. Aff. ¶
May 2006 - May 2009;
Feb. 1, 2011 - March 5, 2011;
Oct. 3, 2012 - Apr. 15, 20133
Oct. 2006 - Feb. 2007;
Apr. 2007 - Oct. 2008;
Oct. 2012 - Nov. 2012
¶¶ 23, 25
Aug. 1, 2008 - Sept. 21, 2012
Jan. 1, 2007 - Dec. 31, 2012
Apr. 1, 2012 - Apr. 15, 2012
Plaintiffs allege that they, and similarly situated employees, were not paid the legally required
minimum wage, and were entitled to overtime pay at the statutory rate of one and one-half times the
minimum wages for work in excess of forty hours per work week, which they were also not paid.
Zhang’s affidavit states the final employment period as October 3, 2012 to April 15, 2012. Zhang
Aff. ¶ 5. As this time period is illogical, the Court will treat it as a typographical error and use the time
period set forth in the SAC.
SAC ¶¶ 31, 50-52. Plaintiffs claim that they each worked between 62 and 67 hours per week, but
were only paid $400 per month in violation of the statutory regulations. Zhang Aff. ¶ 13 (63 hour
weeks); Cheng Aff. ¶ 11 (62 hour weeks); Lin Aff. ¶ 11 (62 hour weeks); Liu Aff. ¶ 11 (67 hour
weeks). Plaintiff Hsieh claims that he worked 63 hours per week for the two weeks he was
employed at the Restaurant and was paid $400. Hsieh Aff. ¶ 11. Plaintiff Liu further alleges that
while he was employed as a Food Packer, he worked 63 hours per week and was paid $60 per day.
Liu Aff. ¶ 22.
Plaintiffs claim that Defendants’ failure to pay the required minimum wage and overtime was
willful and that they operated under a common policy and practice in this regard. SAC ¶¶ 51-52.
The SAC also alleges that Defendants willfully failed to keep records as required by the FLSA. Id.
¶ 51. Cheng’s and Zhang’s affidavits add that based on their observations and personal knowledge,
no employees at the Restaurant ever received any overtime pay. Cheng Aff. ¶ 12; Zhang Aff. ¶ 14.
Accordingly, Plaintiffs assert FLSA claims for failure to pay minimum wage and overtime
compensation on behalf of themselves and all similarly situated employees.4
B. Procedural History
Although the Complaint and Amended Complaint were filed on March 12, 2014 and October
27, 2014, respectively, Plaintiffs did not file their “Consent to Become Party Plaintiff” forms until
“To state a FLSA minimum wage claim, it is sufficient for a plaintiff to allege facts about his salary
and working hours, such that a simple arithmetical calculation can be used to determine the amount owed
per pay period.” Jimenez v. KLB Foods, Inc., No. 12 CIV. 6796, 2014 WL 2738533, at *3 (S.D.N.Y. June
17, 2014) (citing Zhong v. August August Corp., 498 F. Supp. 2d 625, 629 (S.D.N.Y.2007)). The SAC
clearly meets this burden. See SAC ¶¶ 21, 24, 27-29, 46. Accordingly, the Court finds that although
Plaintiffs did not plead Defendants’ failure to pay minimum wage as a separate count, the factual allegations
in the SAC and the declarations “were sufficient to place Defendants on notice of their claims related to their
alleged failure to pay the minimum wage under the FLSA.” Alonso v. Uncle Jack's Steakhouse, Inc., 648
F. Supp. 2d 484, 487 (S.D.N.Y. 2009).
March 25, 2015. See Consent Forms, DE  - . The SAC was filed after the motion for
conditional certification was submitted. In light of their new addition to the case, this Court sua
sponte gave the New Defendants an opportunity to submit opposition to the motion. Defendant
Cindy Chen submitted a memorandum in opposition, see Defendant Cindy Chen’s Memorandum
of Law In Opposition (“Def. C. Chen Mem. In Opp.”) DE , and Defendants Fenny Restaurant
and Cai Fen Chen submitted a one-page memorandum adopting the opposition memoranda
submitted by their co-Defendants. See DE . Plaintiffs submitted a further reply. See DE .
A. Conditional Certification of a Collective Action
The FLSA provides a private right of action to recover unpaid overtime compensation and/or
minimum wages. See 29 U.S.C. §§ 206, 207, 216(b); Bifulco v. Mortg. Zone, Inc., 262 F.R.D. 209,
212 (E.D.N.Y. 2009). An action pursuant to section 216(b) may be brought as a collective action,
that is, by “one or more employees for and in behalf of himself or themselves and other employees
similarly situated.” 29 U.S.C. § 216(b). “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 (internal quotation and citations omitted). Courts in the Second Circuit use a two-step
approach to determine whether an FLSA collective action should be certified. See Myers v. Hertz
Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). For the first step, also known as conditional
certification, the court determines whether the proposed opt-in members are similarly situated to the
named plaintiffs “with respect to whether a FLSA violation has occurred.” Myers, 624 F.3d at 555.
If the plaintiffs meet this burden, the court conditionally certifies the class as a collective action, and
potential members are notified and provided with the opportunity to opt-in to the action.
“At the second step, after discovery, the court will determine whether the plaintiffs who
opted-in are indeed similarly situated to the named plaintiff; if they are not, the collective action may
be decertified.” Bijoux v. Amerigroup New York, LLC, No. 14-CV-3891, 2015 WL 5444944, at *2
(E.D.N.Y. Sept. 15, 2015); see also Rubery v. Buth-Na-Bodhaige, Inc., 569 F. Supp. 2d 334, 336 n.1
(W.D.N.Y. 2008) (if discovery does not support the finding that plaintiffs are similarly situated, “the
court will decertify the class, the claims of the opt-in plaintiffs will be dismissed without prejudice,
and the class representatives may proceed to trial on their individual claims”). The current motion
before the Court concerns only the first step – whether the proposed class members are similarly
situated such that conditional certification should be granted.
“Because certification at this first early stage is preliminary and subject to reevaluation, the
burden for demonstrating that potential plaintiffs are ‘similarly situated’ is very low.” Romero v.
H.B. Auto. Grp., Inc., No. 11 Civ. 386, 2012 WL 1514810, at *9 (S.D.N.Y. May 1, 2012) (internal
quotation and citation omitted). “This low burden is consistent with the broad remedial purpose of
the FLSA.” Pippins v. KPMG LLP, No. 11 Civ. 0377, 2012 WL 19379, at *6 (S.D.N.Y. Jan. 3
2012) (internal quotation and citation omitted). At this stage, “the court does not resolve factual
disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.”
Rosario v. Valentine Ave. Discount Store, Co., 828 F. Supp. 2d 508, 514 (E.D.N.Y. 2011) (quoting
Lynch v. United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)).
To succeed, Plaintiffs “need only make ‘a modest factual showing sufficient to demonstrate
that they and potential plaintiffs together were victims of a common policy or plan that violated the
law.’” Doucoure v. Matlyn Food, Inc., 554 F. Supp. 2d 369, 372 (E.D.N.Y. 2008) (quoting Hoffmann
v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). The Court does 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) (citing Wraga v. Marble Lite, Inc., No. 05-CV-5038, 2006 WL 2443554, at *1
(E.D.N.Y. Aug. 22, 2006)). All prospective class members need not have the same duties to be
similarly situated. Rather, the questions are whether “they were all similarly situated with respect
to being subject to the same policy of being denied overtime compensation” and whether a factual
nexus exists among them. Cano v. Four M Food Corp., No. 08-CV-3005, 2009 WL 5710143, at *7
(E.D.N.Y. Feb. 3, 2009) (emphasis in original). The determination that the potential opt-in plaintiffs
are similarly situated may be based on the pleadings as well as supporting affidavits or declarations
submitted by Plaintiffs. See Sharma v. Burberry Ltd., 52 F. Supp. 3d 443, 452 (E.D.N.Y. 2014);
Sexton v. Franklin First Fin., Ltd., No. 08-CV-4950, 2009 WL 1706535, at *3 (E.D.N.Y. Jun. 16,
Here, Plaintiffs propose potential opt-ins as all current and former restaurant workers, “chefs,
waiters, delivery persons, kitchen workers, dish washers, and all other equivalent employees
performing all other restaurant-related duties,” at Hunan Dynasty, and exclude inter alia corporate
officers, administrative employees, and “customarily exempt employees.” Proposed Notice of
Pendency, DE [26-9]. Defendants have not opposed the scope of the opt-in class. In addition to
Plaintiffs’ affidavits, Plaintiffs have provided an affidavit from non-party Yi Qi Dai who was
employed at Hunan Dynasty as a busser and a waiter, most recently from May 2, 2010 through
August 5, 2013. Affidavit of Yi Qi Dai, ¶¶ 5-6, DE [26-8]. Like Plaintiffs, he claims that he worked
in excess of 40 hours per week, did not receive overtime pay, and received cash payment of $400
per month, “which is well below the minimum hourly wage.” Id. ¶ 13. Plaintiffs Zhang and Cheng
state that, based on their observations and personal knowledge, no employees at the Restaurant ever
received any overtime pay. Cheng Aff. ¶ 12; Zhang Aff. ¶ 14. Zhang further identifies additional
employees who reportedly worked in excess of forty hours per week. Zhang Aff. ¶¶ 16-20.
Plaintiffs, through their pleadings and affidavits, have made the requisite showing of a pattern
by Defendants of failing to make overtime payments as required under FLSA, and that Plaintiffs
share a factual nexus with the potential opt-ins. The Court concludes that they have satisfied their
minimal burden and have established that Plaintiffs and the putative collective members are similarly
situated, and so conditional certification is appropriate. See generally Fasanelli v. Heartland
Brewery, Inc., 516 F. Supp. 2d 317, 322 (S.D.N.Y. 2007) (conditional class certification appropriate
“where all putative class members are employees of the same restaurant enterprise”).
B. Statute of Limitations and Commencement of an FLSA Action
Defendants’ objections to conditional certification relate to the statute of limitations for the
FLSA claims. The statute of limitations period for claims of unpaid wages or unpaid overtime
compensation under the FLSA is two years from the date the claim accrued, or three years from the
accrual date if the violation of the Act was willful. 29 U.S.C. § 255(a). The Second Circuit has
stated that “a violation is willful for purposes of the FLSA limitations provision only if the employer
knowingly violates or shows reckless disregard for the provisions of the Act.” Brock v. Superior
Care, Inc., 840 F.2d 1054, 1062 (2d Cir. 1988).
The act of filing a complaint does not, by itself, toll the statute of limitations, as the FLSA
“requires an employee with a[n] FLSA claim to affirmatively opt-in to any collective action.”
Sutherland v. Ernst & Young LLP, 726 F.3d 290, 296 (2d Cir. 2013); see also 29 U.S.C. § 216 (b)
(“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”). For all
plaintiffs, including those named in the complaint, “‘the statute of limitations period continues to
run with respect to each potential plaintiff’s collective action claim until that plaintiff files the
written consent form,’ and ‘signed consents do not relate back to the original filing date of the
complaint.’” Thind v. Healthfirst Mgmt. Servs., LLC, No. 14 Civ. 9539, 2015 WL 4554252, at * 3
(S.D.N.Y. July 29, 2015) (quoting Lee v. ABC Carpet & Home, 236 F.R.D. 193, 199 (S.D.N.Y.
2006)). Here, Plaintiffs filed their Consent Forms on March 25, 2015 and thus the statute of
limitations has run on any claim of a non-willful violation prior to March 25, 2013 and any claim
of a willful violation prior to March 25, 2012.
Based on the Plaintiffs’ allegations, Defendants argue that they (Plaintiffs) are not similarly
situated to the potential opt-in class members because any claims of non-willful violations asserted
by Plaintiffs are time-barred. Thus, Defendants argue, these Plaintiffs are not adequate class
representatives and collective certification should be denied on this basis. The Court need not
resolve this issue, however, since “[c]ourts in this circuit have generally held that where willfulness
is in dispute, a three year statute of limitations applies at the certification stage.” Alvarez v. IBM
Rests. Inc., 839 F. Supp. 2d 580, 587-88 (E.D.N.Y. 2012) (citing McBeth v. Gabrielli Truck Sales,
Ltd., 768 F. Supp. 2d 396, 399 (E.D.N.Y. 2011) (citation omitted)); see also Fasanelli, 516 F. Supp.
2d at 323 (granting conditional certification using three-year period to “avoid any merit-based
determinations at this time” but expressly noting possibility of future decertification); IglesiasMendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 369 (S.D.N.Y. 2007) (“[w]here willfulness is
disputed, the court applies the three-year statute of limitations for purposes of certifying a
representative action”). 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. See
Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 388 (E.D.N.Y. 2010); see also 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). As the SAC contains allegations of willful conduct by Defendants, it is
appropriate to apply the three-year statute of limitations under the FLSA at this stage of the
proceedings. See SAC ¶¶ 51-52.
Having decided that the three-year statute of limitations period applies for the purposes of
conditional certification, Defendants’ argument regarding Plaintiffs’ ability to represent the
collective similarly fails. Should the evidence demonstrate, after discovery, that only claims of nonwillful violations are viable, the issue of whether these Plaintiffs can represent the class can be
addressed as part of any subsequent motion.
Defendant Cindy Chen further argues that any and all claims of potential opt-in plaintiffs
against Hunan Dynasty are necessarily time-barred because they accrued more than three years ago.
Ms. Chen claims that the last paycheck of any Hunan Dynasty employee “necessarily was issued no
later than August 12, 2012, the date Hunan Dynasty at Levittown Inc. was dissolved.” C. Chen.
Mem. in Opp. at 3 (citing Declaration of Carolyn Shields (“Shields Decl.”), ¶ 2 & Ex. A, DE [91-1]).
In addition, she argues, Hunan Dynasty of Levittown assigned its lease to co-Defendant Wen Mei
on April 3, 2012, an occurrence which she suggests acts as a type of final accrual date of claims
against Hunan Dynasty. This argument also fails. As discussed above, Plaintiffs filed their opt-in
notices on March 25, 2015 and thus any potential opt-in plaintiff alleging a willful violation on or
after March 25, 2012 may also have a viable claim. Moreover, the SAC names the co-Defendants
as having continued doing business as Hunan Dynasty and essentially acting as the same enterprise,
an allegation Ms. Chen does not address. Accordingly, this alternative argument is insufficient to
defeat conditional certification.
C. Plaintiff Zhang as Class Representative
Chen further argues that Plaintiff Zhang is an inadequate class representative because he died
in July 2015. While clearly Zhang cannot proceed himself, Defendants have not presented any
argument that his estate could not act on his behalf. For example, in a Rule 23 certification context,
the executor of an estate stands in the shoes of the decedent and thus if the decedent would be a
proper class representative, the executor of his estate would also be proper. See, e.g., Kamerman v.
Ockap Corp., 112 F.R.D. 195, 196 (S.D.N.Y. 1986); see also In re Pharm. Indus. Average Wholesale
Price Litig., 277 F.R.D. 52, 58 (D. Mass. 2011) (executors of estates of deceased plaintiffs found to
be adequate class representatives in Rule 23 action). In any event, Plaintiffs correctly note that they
have ninety days, or until October 18, 2015, to file a substitution for Zhang. See FED. R. CIV. P. 25.
Accordingly, Defendants may renew their motion on this grounds after that deadline, if appropriate.
As Plaintiffs have met their minimal initial burden of showing that they are similarly
situated to Defendants’ other employees, conditional certification is appropriate and Plaintiffs may
send notice to employees concerning opting in to this case.
[Sections D&E revised; F is from original]
D. Notice of Pendency and Consent Form
Plaintiffs have provided a proposed Notice of Pendency for the Court’s review and
Defendants’ counter proposal. See DE . In light of the Court’s ruling regarding Plaintiffs’
minimum wage claim, Plaintiffs’ proposed Notice of Pendency and consent forms are approved. See
DE [97-1], [97-2]. Plaintiffs’ request for an Order directing Defendants to post the approved notice
and consent forms in conspicuous locations where the putative collective action members worked
or are now working is also granted. See, e.g., Garcia v. Pancho Villa’s of Huntington Vill., Inc., 678
F. Supp. 2d 89, 96 (E.D.N.Y. 2010) (approving request to post notice at workplace); Malloy v.
Richard Fleischman & Assocs. Inc., No. 09 Civ. 322, 2009 WL 1585979, at *4 (S.D.N.Y. June 3,
2009) (same). The Notice of Pendency and Consent to Join Lawsuit forms shall be mailed and
posted no later than November 16, 2015.
E. Production of Contact Information
Plaintiffs further request production of contact information including alternate phone
numbers, and addresses, last known email addresses, work locations, social security numbers, and
dates of employment of all the Defendants’ former and current non-managerial employees.
Defendants again have not addressed this request. Generally it is appropriate for courts in collective
actions to order discovery of contact information for potential collective members. Indeed, “[c]ourts
within this Circuit routinely grant plaintiffs’ motions to compel production of the names and
addresses of potentially similarly situated employees who may wish to ‘opt-in’ to a collective
action.” Anglada v. Linens ‘N Things, Inc., No. 06 Civ. 12901, 2007 WL 1552511, at *7 (S.D.N.Y.
May 29, 2007) (collecting cases). Courts are, however, “reluctant to authorize the disclosure of
private information, such as social security numbers, without good cause.” Chen v. Oceanica
Chinese Rest., Inc., No. 13-CV-4623, 2014 WL 1338315, at *8 (E.D.N.Y. Apr. 2, 2014). As
Plaintiffs have not established a particularized need for social security numbers, they need not be
produced at this time. Accordingly, Plaintiffs’ request is granted to the extent that Defendants shall
provide them with a list of the names and addresses, phone numbers, last known email addresses,
work locations, and dates of employment of all non-exempt employees employed at the restaurant
located at 2993 Hempstead Turnpike, Levittown, New York, from March 25, 2012 to present.5
F. Equitable Tolling
Finally, Plaintiffs seek equitable tolling of the statute of limitations for the opt-in plaintiffs.
The Court has the discretion to equitably toll the limitations period, where appropriate. For example,
“[t]he delay caused by the time required for a court to rule on a motion, such as one for certification
of a collective action in a FLSA case, may be deemed an ‘extraordinary circumstance’ justifying
application of the equitable tolling doctrine.” Yahraes v. Restaurant Assocs. Events Corp., No. 10CV-935, 2011 WL 844963, at *1 (E.D.N.Y. Mar. 8, 2011) (citations omitted); see also McGlone v.
Contract Callers, Inc., 867 F. Supp. 2d 438, 445 (S.D.N.Y. 2012) (class representatives should “not
be penalized due to the courts’ heavy dockets and understandable delays in rulings”). The Court
finds that equitable tolling is appropriate. While generally, courts applying the equitable tolling
doctrine in the FLSA context will toll the statute of limitations as of the date of the filing of the
motion for conditional certification, in this case the more appropriate date is the subsequent date of
filing of Plaintiffs’ Consent Forms. Accordingly, the statue of limitations is tolled as of the date of
that filing, March 25, 2015, until the date of this Memorandum and Order.
For the foregoing reasons, Plaintiffs’ motion for conditional certification as an FLSA
The Memorandum and Order of September 30, 2015, vacated by this Amended
Memorandum and Order, directed that the list be produced by October 21, 2015. Defendants have
presumably complied with that deadline and thus it need not be reset here. The parties are reminded,
however, that the list shall be treated by the parties as confidential.
collective action is granted. The Notice of Pendency and Consent to Join Lawsuit forms shall be
mailed no later than November 16, 2015. Copies shall be posted at the Restaurant at the time of
Dated: Central Islip, New York
October 23, 2015
/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
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