Arciello et al v. County of Nassau et al
ORDER granting in part and denying in part DE 14 Motion to Certify FLSA Collective Action. For the reasons set forth in the attached Memorandum and Order, Plaintiffs' motion for conditional certification as an FLSA collective action is granted in part and denied in part. See the attached Memorandum and Order for further directives. So Ordered by Magistrate Judge Steven I. Locke on 10/30/2017. (Vissichelli, Eric)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ROBERT J. ARCIELLO, FRANCIS J. GOREY,
JR., DIANE MASTROPAOLO, GLEN F.
LAWRENCE J. LOISELLE, JOSEPH T.
WHITTAKER, JAMES SHARKEY, KIRK
FOWLKES, JOHN CLOUDMAN, NICHOLAS
PALMESE, JOHN OCHWAT, and all others
MEMORANDUM & ORDER
COUNTY OF NASSAU and EDWARD
MANGANO, in his individual and official
LOCKE, Magistrate Judge:
Plaintiffs Robert J. Arciello, Francis J. Gorey, Jr., Diane Mastropaolo, Glen F.
Tuifel, Daniel E. Speicher, Lawrence J. Loiselle, Joseph T. Whittaker, James
Sharkey, Kirk Fowlkes, John Cloudman, Nicholas Palmese, and John Ochwat
(collectively “Plaintiffs”) commenced this action, on behalf of themselves and all other
similarly situated persons, seeking, among other things, unpaid overtime
compensation from Defendants County of Nassau (the “County”), Edward Mangano,
in his individual and official capacities (together with the County, “Defendants”), and
Nassau County Civil Service Commission, pursuant to the Fair Labor Standards Act
of 1938 (“FLSA”), as amended, 29 U.S.C. § 201 et seq. and the New York Labor Law
(“NYLL”). See Complaint (“Compl.”), Docket Entry (“DE”) .
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Currently before the Court, on referral for decision from the Honorable Arthur
D. Spatt, is Plaintiffs’ motion for an order: (i) conditionally certifying this action as
an FLSA collective action pursuant to 29 U.S.C. § 216(b); (ii) compelling Defendants
to provide Plaintiffs’ counsel with a computer-readable data file containing the
names, addresses, and telephone numbers of potential opt-in members, namely,
current and former nonexempt employees of the County dating back six years from
the filing of the Complaint; (iii) authorizing circulation of a proposed Notice of
Lawsuit With Opportunity to Join (the “Proposed Notice”), see DE [14-1], Ex. N, to all
similarly situated individuals via United States Postal Service first-class mail; and
(iv) authorizing the posting of the Proposed Notice in both Newsday and Plaintiffs’
union newsletter, CSEA Express.
See DE .
Defendants oppose conditional
certification and certain aspects of the Proposed Notice. See DE . For the reasons
stated herein, Plaintiffs’ motion is granted in part and denied in part as set forth
The following facts are taken from the Complaint and the declarations
submitted in support of the instant motion, and are accepted as true for purposes of
The County is a municipal corporation incorporated under the laws of the State
of New York. See Compl. ¶ 21. Plaintiffs, current employees of the County, hold
various positions within the Sheriff’s Department, Department of Social Services,
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Police Department, Fire Marshal’s Office, Department of Recreation and Parks,
Department of Public Works, and Department of Health. See id. ¶¶ 9-20. Plaintiffs
were hired by the County in or before January 2007, see id., and each Plaintiff is
classified as nonexempt from the FLSA’s overtime requirements, see id. ¶ 3.
Plaintiffs have all “experienced an average four-week lag in overtime payment
since as far back as [they] can remember.” See, e.g., Declaration of Robert J. Arciello
(“Arciello Dec.”), DE [14-1], Ex. B, ¶ 5. The lag in overtime payment worsened
starting in 2009, when the County integrated Intime, a computerized timekeeping
application, into its payroll system. See Compl. ¶¶ 37-42; Arciello Dec. ¶¶ 5-8.
Plaintiffs dealt with “many problems” with respect to their paychecks while the
County was transitioning systems. See, e.g., Arciello Dec. ¶ 7. Even after such
problems were resolved, Plaintiffs consistently experienced six- to eight-week delays
in payment of their overtime wages. See, e.g., id. ¶ 8-9. Moreover, when Plaintiffs
eventually received their overtime wages, their pay stubs did not specify the day,
week, or month to which those wages corresponded. See, e.g., id. ¶ 10.
On November 30, 2015, Plaintiffs’ union, the Civil Service Employees
Association (“CSEA”), filed a grievance notifying the County of the delays in payment
of overtime wages. See id. ¶ 11. Yet, notwithstanding that notice, the County’s
failure to promptly pay employees for overtime persisted. See Compl. ¶ 5. According
to Plaintiffs, the delays still remain a County-wide problem. See id. Indeed, in
Plaintiffs’ declarations submitted in support of the instant motion, they specifically
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identify additional County employees who, like them, have not been paid overtime
wages in a prompt manner. See, e.g., Arciello Dec. ¶ 14.
B. Procedural History
By way of Complaint dated July 18, 2016, Plaintiffs initiated this lawsuit
seeking to recover, among other things, damages pursuant to the FLSA and NYLL.
See Compl. ¶¶ 1-4. Plaintiffs assert their claims on their own behalves and on behalf
of all County employees who have not received, and continue not to receive, earned
overtime compensation by their scheduled payday. See id. ¶ 6.
On August 8, 2016, Defendants filed a motion to dismiss portions of the
Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 12(b)(6). See DE , , . On February 7, 2017, the Honorable
Arthur D. Spatt issued a Decision & Order which, among other things, dismissed
Plaintiffs’ claim for discrimination under 42 U.S.C. § 1983 and dismissed all claims
against Defendant Nassau County Civil Service Commission. See DE .
Plaintiffs now seek an order conditionally certifying this case as an FLSA
collective action and permitting Plaintiffs to send “notice of pendency to potential
collective action members, current and former non-exempt employees, employed by 
Defendants dating back six years from the filing of the [C]omplaint” pursuant to 29
U.S.C. § 216(b). See Plaintiffs’ Memorandum of Law in Support of Their Motion to
Proceed as a Collection Action and to Facilitate Notice Under 29 U.S.C. Section 216(b)
(“Pl.’s Mem.”), DE , at 1. Plaintiffs claim they have made the required “modest
factual showing” that they, and other nonexempt employees of the County, “were
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victims of [the County’s] common policies and plans that violate the FLSA and
NYLL.” Pl.’s Mem. at 3. Plaintiffs also argue that they have “established a sufficient
factual nexus between their situation and that of the other nonexempt employees
employed by [the County]” such that conditional certification should be granted. Id.
Plaintiffs further seek authorization to post notice of the collective action in both
Newsday and their union newsletter, CSEA Express, and mail notice and consent
forms via United States Postal Service first-class mail to potential class members.
See id. at 9.
In addition, Plaintiffs ask the Court to “direct Defendants to provide
their counsel with a list of the names, addresses, phone numbers and dates of
employment of all potential collective action members, which are current and former
nonexempt employees of [the County] dating back six years from the filing of the
Complaint on July 18, 2016.” Id. at 10. In support of their motion, Plaintiffs each
submit a declaration describing the County’s alleged violations and identifying other
employees purportedly affected by such violations. See, e.g., Arciello Dec. ¶¶ 3-18.
In opposition, Defendants point out that not all County employees utilize the
Intime system, and argue that, consequently, the proposed collective action members
are neither similarly situated nor victims of a common policy or plan.
Memorandum of Law in Opposition to Plaintiffs’ Motion for Conditional Certification
of a Collective Action Under the FLSA (“Def.’s Mem.”), DE [21-1], at 4. Moreover,
Defendants argue that, if the Court were to grant certification, notice should be
limited to two years because the statute of limitations for claims under the FLSA is
two years for non-willful violations, and there is no evidence that Defendants willfully
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violated the FLSA. See id. at 5. For the same reason, Defendants assert that
Plaintiffs’ request for information about potential class members should be limited to
two years. See id. at 9. Defendants also object to Plaintiffs’ request to publish the
Proposed Notice in Newsday and CSEA Express. See id. at 9-10. Finally, Defendants
contend that the Proposed Order should be modified in several respects and
submitted to the Court for approval before it is distributed. See id. at 8.
Pursuant to Section 207 of the FLSA, employees must be compensated “at a
rate not less than one and one-half times the regular rate at which [they are]
employed” for every hour worked in excess of forty in a given work week. 29 U.S.C.
§ 207(a)(1). The FLSA further provides:
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 equal amount as
liquidated damages. . . . An action to recover the liability prescribed in
either of the preceding sentences may be maintained against any
employer . . . 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).
“[D]istrict courts ‘have discretion, in appropriate cases, to
implement [Section 216(b)] . . . by facilitating notice to potential plaintiffs’ of the
pendency of the action and of their opportunity to opt-in as represented plaintiffs.”
Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffman-La Roche,
Inc. v. Sperling, 493 U.S. 165, 169, 110 S. Ct. 482 (1989)). For the following reasons,
the Court will: (i) conditionally certify the action as an FLSA collective action; (ii)
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authorize the posting and dissemination of notice of the action; and (iii) compel
Defendants to produce contact information for potential opt-in plaintiffs, subject to
the conditions set forth below.
A. Conditional Certification
Courts in the Second Circuit apply a two-step analysis to determine whether a
collective action under Section 216(b) of the FLSA should be certified. Myers, 624
F.3d at 554. First, the court evaluates whether the proposed class members are
“similarly situated” to the named plaintiffs. See Rodolico v. Unisys Corp., 199 F.R.D.
468, 480 (E.D.N.Y. 2001). If the court finds that the proposed class members are
similarly situated, each member must consent in writing to be bound by the result,
or “opt in.” Id. (citing 29 U.S.C. § 216(b)). The second step generally occurs following
completion of discovery and requires examination of the evidentiary record to
ascertain whether the opt-in plaintiffs are, in fact, similarly situated. Bifulco v.
Mortg. Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009). The present motion concerns
only the first step of the certification process – whether the proposed class members
are similarly situated such that conditional certification should be granted.
At the conditional certification stage, “the evidentiary standard is lenient.”
Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 58 (E.D.N.Y. 2011); see also Lynch v.
United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007) (“The burden for
demonstrating that potential plaintiffs are ‘similarly situated’ is very low at the
notice stage.”). Plaintiffs seeking conditional certification “need only make a modest
factual showing sufficient to demonstrate that they and potential plaintiffs together
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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) (internal quotation marks
At this stage, “the Court does not resolve factual disputes, decide
substantive issues going to the ultimate merits[,] or make credibility determinations.”
Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 385 (E.D.N.Y. 2010) (quoting Francis
v. A & E Stores, Inc., No. 06 CIV.1638, 2008 WL 2588851, at *2 (S.D.N.Y. June 26,
2008), report and recommendation adopted as modified, No. 06CIV1638, 2008 WL
4619858 (S.D.N.Y. Oct. 16, 2008) (internal quotation marks omitted)).
To be entitled to conditional certification, a movant is not required to prove 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. 05CV-5038, 2006 WL 2443554, at *1 (E.D.N.Y. Aug. 22, 2006)); see also Sexton v.
Franklin First Fin., Ltd., No. 08-cv-4950, 2009 WL 1706535, at *3 (E.D.N.Y. June 16,
2009) (“‘[N]othing more than substantial allegations that the putative class members
were together the victims of a single decision, policy or plan’ is required.” (quoting
Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005))). “Courts will certify
broad classes where there is some showing that all members of the putative class
performed the same duties . . . or that the employer had uniform company-wide
employment practices.” Vasquez v. Vitamin Shoppe Indus., Inc., No. 10 Civ. 8820,
2011 WL 2693712, at *3 (S.D.N.Y. July 11, 2011) (internal citations omitted). “It is
not necessary for the purposes of conditional certification that the prospective class
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members all performed the same duties, or worked during the same time periods, or
worked at the same locations as the named plaintiffs.” Cano v. Four M Food Corp.,
No. 08-CV-3005, 2009 WL 5710143, at *7 (E.D.N.Y. Feb. 3, 2009).
appropriate inquiry is whether the prospective class members “were all similarly
situated with respect to being subject to the same policy of being denied overtime
compensation, and there exists a factual nexus among the plaintiffs.” Id. (emphasis
in original). The determination that potential opt-in plaintiffs are similarly situated
is typically based on the pleadings, affidavits, and declarations submitted by the
plaintiff. See Sharma v. Burberry Ltd., 52 F. Supp. 3d 443, 452 (E.D.N.Y. 2014)
(“[C]ourts in the Second Circuit routinely grant conditional certification for overtime
claims based on the statements of the named plaintiff(s) and other supporting
In this case, Plaintiffs have made a sufficient factual showing that they and
the potential collective action members – other nonexempt employees of the County
who did not receive overtime compensation in a timely manner – were together
victims of a common policy or plan that violated the FLSA. The Complaint alleges
that Defendants “had a policy and practice of refusing to promptly pay overtime
compensation at the statutory rate . . . to Plaintiffs and FLSA Collective Plaintiffs for
their hours worked in excess of forty hours per workweek,” Compl. ¶ 49, and that
“[t]he County has been noticed of the issue but their failure to pay in a prompt manner
is a continuing and ongoing problem,” id. ¶ 5. Those allegations are supported by
Plaintiffs’ respective declarations submitted in support of the instant motion, each of
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which describes the County’s practice of paying overtime wages six to eight weeks
late, specifically names other County employees who have been affected by such
delays, notes that the CSEA filed a grievance with the County relating to the delayed
payment of overtime wages, and claims that the delays have continued even after the
County became aware of the issue. See Arciello Dec. ¶¶ 9, 11, 12, 14; Declaration of
Francis J. Gorey, Jr., DE [14-1], Ex. C, ¶¶ 9, 11, 12, 14; Declaration of Diane
Mastropaolo, DE [14-1], Ex. D, ¶¶ 9, 11, 12, 14; Declaration of John Cloudman, DE
[14-1], Ex. E, ¶¶ 9, 11, 12, 14; Declaration of Kirk Fowlkes, DE [14-1], Ex. F, ¶¶ 9, 11,
12, 14; Declaration of Nicholas Palmese, DE [14-1], Ex. G, ¶¶ 9, 11, 12, 14; Declaration
of Daniel E. Speicher, DE [14-1], Ex. H, ¶¶ 9, 11, 12, 14; Declaration of Glen F. Tuifel,
DE [14-1], Ex. I, ¶¶ 9, 11, 12, 14; Declaration of James Sharkey, DE [14-1], Ex. J, ¶¶
9, 11, 12, 14; Declaration of Lawrence J. Loiselle, DE [14-1], Ex. K, ¶¶ 9, 11, 12, 14;
Declaration of Joseph T. Whittaker, DE [14-1], Ex. L, ¶¶ 9, 11, 12, 14; Declaration of
John Ochwat, DE [14-1], Ex. M, ¶¶ 9, 11, 12, 14. Plaintiffs have thus satisfied the
lenient standard applicable at this stage by submitting evidence of a uniform,
County-wide practice of untimely payment of overtime compensation. See Vasquez,
2011 WL 2693712, at *3 (noting that “[c]ourts will certify broad classes where there
is some showing . . . that the employer had company-wide employment practices”).
The Court is unpersuaded by Defendants’ argument that Plaintiffs are not
similarly situated to the proposed collective action members because “not all County
employees use the [Intime] system as an interface for their time management.” Def.’s
Mem. at 4. While the Complaint does suggest that the County’s transition to the
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Intime system contributed to the delays in overtime payments, see, e.g., Compl. ¶¶
37-42, nowhere do Plaintiffs allege that only those employees using Intime
experienced such delays.
Instead, Plaintiffs assert that Defendants’ policy and
practice of refusing to promptly pay overtime compensation has affected both those
employees that use Intime and those that do not.
And according to Plaintiffs’
declarations, those delays began before the County implemented the Intime system.
See, e.g., Arciello Dec. ¶ 5. In light of the evidence that the County’s allegedly
unlawful practices are widespread and impact employees beyond those using Intime,
the Court finds a sufficient “factual nexus” between Plaintiffs’ situation and the
situation of the proposed collective action members such that conditional certification
should be granted. 1 See Sobczak, 540 F. Supp. 2d at 362 (“Courts regularly grant
motions for approval of a collective action notice ‘based upon employee affidavits
setting forth a defendant's plan or scheme to not pay overtime compensation and
identifying by name similarly situated employees.’” (quoting Wraga, 2006 WL
2443554, at *2)).
B. Notice Period
The Court must next determine the appropriate timeframe applicable to the
conditional certification. Plaintiffs seek permission to include as potential collective
action plaintiffs “[a]ll non-exempt employees who worked for  Defendants at any
time during the time period of July 18, 2010 to July 18, 2016.” Proposed Notice at 2.
For the same reasons, Defendants’ argument in the alternative – that the Court should deny
Plaintiffs’ application for conditional certification as to the proposed collective action plaintiffs who do
not utilize the Intime system, see Def.’s Mem. at 5 – lacks merit.
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A six-year notice period is appropriate, Plaintiffs contend, because their NYLL claims
are subject to a six-year statute of limitations, see N.Y. Lab. Law §§ 663(1), (3), and
such claims could fall within this Court’s supplemental jurisdiction by virtue of 28
U.S.C. § 1367(a), even absent a class certification pursuant to Fed. R. Civ. P. 23. See
Pl.’s Mem. at 10-11. Plaintiffs note that several courts in this District have required
defendants facing both FLSA and NYLL claims to provide relevant contact
information of potential class members for a six-year period prior to the
commencement of the action. See id. at 10 (citing Sharma, 52 F. Supp. 3d at 461;
Cano, 2009 WL 5710143, at *10; Alcantara v. CNA Mgmt., Inc., 264 F.R.D. 61, 66
(S.D.N.Y. 2009); Wraga, 2006 WL 2443554, at *3). Defendants, however, insist that
a two-year notice period is proper because Plaintiffs have presented no evidence that
Defendants willfully violated the FLSA. See Def.’s Mem. at 5. Citing McBeth v.
Gabrielli Truck Sales, Ltd., 768 F. Supp. 2d 396, 400 (E.D.N.Y. 2011), Defendants
posit that “[t]he ‘growing trend’ in this District . . . is to limit the notice period to the
applicable limitations period under the FLSA . . . .” Def.’s Mem. at 5.
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).
“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., 14-CV-1647, 2015 WL 6442545, at *5 (E.D.N.Y. Oct. 23, 2015)
(citing Summa, 715 F. Supp. 2d at 388); see Patton v. Thomson Corp., 364 F. Supp.
2d 263, 268 n.2 (E.D.N.Y. 2005) (finding allegation of willful violation justified notice
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based on a three-year statute of limitations period); see also Alvarez v. IBM
Restaurants, Inc., 839 F. Supp. 2d 580, 587-88 (E.D.N.Y. 2012) (“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 threeyear statute of limitations applies at the conditional certification stage.”).
Here, the Complaint repeatedly alleges that Defendants willfully violated the
FLSA. See, e.g., Compl. ¶ 25 (“Plaintiffs and other FLSA Collective Plaintiffs . . . are
and have been subjected to Defendants’ decisions, policies, plans, programs, practices,
procedures, protocols, routines, and rules, all culminating in a willful failure and
refusal to pay them in the proper overtime premium . . . .”); id. ¶ 50 (“Defendants
knowingly and willfully violated Plaintiffs’ and FLSA Collective Plaintiffs’ rights by
failing to promptly pay them to [sic] overtime compensation they earned.”). And
Plaintiffs’ allegations of willfulness are substantiated by their declarations, which
state that the County’s practices did not change even after their union filed a
grievance relating to the delays. See, e.g., Arciello Dec. ¶ 12 (“Defendants have been
made aware of this issue, yet they have continued to willfully delay the payment of
my overtime wages to me.”). Accordingly, Plaintiffs have, at this juncture, sufficiently
alleged willful conduct by Defendants.
The next issue, then, is whether either a three-year or a six-year notice period
is appropriate in the present case.
District courts in this Circuit have reached
inconsistent conclusions with respect to this issue. Compare Trinidad v. Pret A
Manger (USA) Ltd., 962 F. Supp. 2d 545, 564 (S.D.N.Y. 2013) (“Authorizing notice for
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a time period twice the length of the maximum FLSA limitations period would not
serve the efficiency goal articulated in Hoffmann[-La Roche, Inc. v. Sperling, 493 U.S.
165 (1989)].”), with Cano, 2009 WL 5710143, at *10 (“[T]his Court finds it prudent
and expedient in this case to allow a six-year period to apply, even if some recipients
of the notice will have claims that are time-barred under the FLSA.”). The more
recent trend, however, is to “approve three-year notice periods to avoid the confusion
caused by notifying plaintiffs who potentially have two disparate claims with
different statutes of limitations, along with the inefficiency of providing notice to
plaintiffs whose claims may well be time-barred.” Mongiove v. Nate's Corp., No.
15CV1024, 2016 WL 590460, at *6 (E.D.N.Y. Feb. 11, 2016) (quoting Sanchez v. El
Rancho Sports Bar Corp., No. 13 CIV. 5119, 2014 WL 1998236, at *1 (S.D.N.Y. May
13, 2014) (internal quotation marks omitted)); see also Lujan v. Cabana Management,
Inc., 10-CV-755, 2011 WL 317984, at *9 (E.D.N.Y. 2011) (limiting notice period to
three years); Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 668 (S.D.N.Y. 2013)
The instant motion seeks certification only with respect to Plaintiffs’ FLSA
claims, not their NYLL claims, and Plaintiffs have not yet moved for class
certification of their NYLL claims pursuant to Fed. R. Civ. P. 23. Thus, the notice
Plaintiffs seek to distribute would be directed only to those persons eligible to opt in
to the FLSA collective action. It would therefore be unnecessarily confusing for
employees who are ineligible for the FLSA opt-in class to receive a notice that
pertains only to the FLSA claims. The Court finds that the resulting inefficiency
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weighs against notice to County employees going back six years, rather than three
years, particularly given the large number of potential collective action members. 2
Cf. Moore, 276 F.R.D at 60 (permitting a six-year notice period, in part because “the
number of Plaintiffs and potential plaintiffs as represented d[id] not appear to be very
large”). Further, although the Court may eventually certify a class for the NYLL
claims, that class would be opt-out, not opt-in, in nature; thus, those class members
would face no risk of claim lapse, even if they did not receive notice of this case in a
timely manner. See Hamadou, 915 F. Supp. at 668. Accordingly, the Court will limit
the timeframe for notification to the three-year period applicable to Plaintiffs' FLSA
C. Proposed Notice
1. Content of the Notice
Plaintiffs also move for an order authorizing dissemination of the Proposed
Notice to all nonexempt County employees similarly situated to Plaintiffs. See Pl.’s
Mem. at 8-9. With respect to the content of the Proposed Notice, Plaintiffs contend
that the Court should approve the version attached to their motion, see DE [14-1], Ex.
N, because it is “timely, accurate, and informative[.]” Pl.’s Mem. at 8. In support of
that assertion, Plaintiffs argue that the Proposed Notice provides notice of the
pendency of the action and the opportunity to opt in, gives clear instructions on how
to opt in, accurately describes Plaintiffs’ claims, and advises potential class members
See Plaintiffs’ Memorandum of Law in Further Support of Their Motion to Proceed as a
Collective Action and to Facilitate Notice Under 29 U.S.C. Section 216(b) (“Pl.’s Reply Mem.”), DE ,
at 8 (“[T]he sheer number of prospective collective action members is so huge, numbering in the
thousands . . . .”).
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that they need not participate. See id. at 9. In addition, Plaintiffs point out that the
Proposed Notice informs potential class members that Defendants will defend against
the claims, and that retaliation or discrimination for participation in a FLSA action
is prohibited. See id.
Defendants argue that the Proposed Notice is defective in several respects and,
as such, should not be approved as submitted. See Def.’s Mem. at 6-7. As an initial
matter, Defendants request that the Proposed Notice be modified to reflect all rulings
made by this Court in connection with the instant motion. See id. at 6. Defendants
also contend that the Proposed Notice should inform recipients about the possibility
that they could be responsible for court costs, state that the case is a matter of public
record, and clearly delineate their counsel’s contact information in addition to
Plaintiffs’ counsel’s information. See id. at 7. Finally, Defendants request that the
Proposed Notice instruct recipients to file their consent to join forms with the Court
instead of Plaintiffs’ counsel. See id.
Neither the FLSA nor any court has expressly outlined what form courtauthorized notice should take or what provisions the notice should contain. See
Moore, 276 F.R.D. at 58 (quoting Fasanelli v. Heartland Brewery, Inc., 516 F. Supp.
2d 317, 323 (S.D.N.Y. 2007)). It is well-settled, however, that “[t]he form of a courtauthorized notice and provisions contained in it are left to the broad discretion of the
trial court.” Sobczak, 540 F. Supp. at 364; see Hernandez v. Immortal Rise, Inc., No.
11-cv-4360, 2012 WL 4369746, at *6 (E.D.N.Y. Sept. 24, 2012) (“[C]ourts have broad
discretion to craft appropriate notices that effectuate the overarching policies of the
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collective suit provisions [of the FLSA] and provide employees with accurate and
timely notice concerning the pendency of the collective action, so that they can make
informed decisions about whether to participate.” (internal quotation marks
The Court concludes that a collective action notice may be disseminated to
potential opt-in members. Nevertheless, the Proposed Notice should be modified in
several respects. First, the notice should explain that this case – and any party’s
participation in it – is a matter of public record, as such an explanation is informative
and Plaintiffs have not offered a specific objection to Defendants’ request in this
regard. See Def.’s Mem. at 7. Second, the notice should include revised language
reflecting a three-year, instead of a six-year, notice period. See Section II.B., supra.
Notwithstanding the foregoing, the Court agrees with Plaintiffs that the notice
should not reference opt-in plaintiffs’ potential liability for costs associated with the
lawsuit and counterclaims that may be asserted by Defendants. See Pl.’s Reply Mem.
at 6. Although some courts have approved language to this effect, see, e.g., Gjurovich
v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 110 (S.D.N.Y. 2003), many
courts in this District have reached the opposite conclusion. See Guzman, 2007 WL
2994278, at *8 (“Given the remote possibility that such costs for absent class members
would be other than de minimis . . . I think such language is inappropriate.”); see also
Dilonez v. Fox Linen Serv. Inc., 35 F. Supp. 3d 247, 256 (E.D.N.Y. 2014); Garcia v.
Pancho Villa's of Huntington Vill., Inc., 678 F. Supp. 2d 89, 95 (E.D.N.Y. 2010).
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Accordingly, the Court will not authorize language in the notice stating that opt-in
plaintiffs may be required to pay damages and costs in the event they do not prevail.
Nor will the Court approve Defendants’ request that the notice clearly
delineate their counsel’s contact information. Inclusion of defense counsel's contact
information is not required to render an FLSA notice fair, and is likely to create
confusion rendering distribution or collection of consent to join forms less effective.
See Chhab v. Darden Restaurants, Inc., 11 CIV. 8345, 2013 WL 5308004, at *16
(S.D.N.Y. Sept. 20, 2013) (“Only plaintiffs' counsel can potentially represent the
individuals to whom the notice is mailed, and only they should be privy to certain
sensitive information that may otherwise fall within the attorney-client privilege.”).
Similarly, the Court agrees with Plaintiffs that the notice should instruct opt-in
plaintiffs to submit their consent to join forms to Plaintiffs’ counsel. Although courts
in this Circuit are split on this issue, where the notice states that potential plaintiffs
may select their own attorney, as the Proposed Notice does here, “there is only a
minimal risk that opt-in plaintiffs will be discouraged from seeking their own
counsel.” Limarvin v. Edo Rest. Corp., No. 11 CIV. 7356, 2013 WL 371571, at *3
(S.D.N.Y. Jan. 31, 2013); see Dilonez, 35 F. Supp. 3d at 257 (permitting potential
plaintiffs to submit consent forms to named plaintiffs’ counsel); Ritz v. Mike Rory
Corp., No. 12 CV 367, 2013 WL 1799974, at *4 (E.D.N.Y. Apr. 30, 2013) (requiring
potential plaintiffs to return consent forms to named plaintiffs’ counsel “[i]n order to
minimize the burden on opt-in plaintiffs who choose representation by [named]
plaintiff's counsel, and to reduce the administrative burden on the court . . . .”); see
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also Mata-Primitivo v. May Tong Trading Inc., No. CV 2013-2839, 2014 WL 2002884,
at *6 (E.D.N.Y. May 15, 2014) (recognizing that submission of consent to join forms
to the court “might prove intimidating to potential opt-in plaintiffs and may prevent
individuals from joining the action”). Upon receiving the completed forms, Plaintiffs’
counsel shall promptly file them with the Court via the Case Management/Electronic
Case Files (CM/ECF) system. See Dilonez, 35 F. Supp. 3d at 258 (“[G]iven the advent
of round-the-clock electronic filing, plaintiffs' counsel may, at times, be better
equipped to expeditiously file returned consent forms.”).
The Court has reviewed the Proposed Notice in its entirety and, save the issues
described above, approves of its contents. Thus, Defendants’ request that the parties
submit a jointly-proposed notice to the Court, see Def.’s Mem. at 8, is denied as
2. Distribution of the Notice
With respect to the manner of distribution, Plaintiffs seek permission to send
the Proposed Notice via United States Postal Service first-class mail and post it in
both Newsday and their union newsletter, CSEA Express. See Pl.’s Mem. at 9.
Defendants submit a wholesale objection to Plaintiffs’ request to publish the notice,
see Def.’s Mem. at 9-10, but fail to specifically explain why they believe publication in
CSEA Express is improper.
In view of the Court’s “broad discretion to craft
appropriate notices that effectuate the overarching policies of the [FLSA’s] collective
suit provisions and provide employees with accurate and timely notice concerning the
pendency of the collective action . . . [,]” Hernandez, 2012 WL 4369746, at *6 (internal
Case 2:16-cv-03974-ADS-SIL Document 34 Filed 10/30/17 Page 20 of 22 PageID #: 262
quotation marks and citation omitted), the Court will permit Plaintiffs to both send
the notice to potential opt-in plaintiffs via first-class mail and post the notice in CSEA
Express. See Rivera v. Harvest Bakery Inc., No. CV 13-00691, 2014 WL 3611831, at
*5 (E.D.N.Y. July 7, 2014) (permitting publication of notice in local periodicals);
Gortat v. Capala Bros., No. 07-CV-3629, 2010 WL 1423018, at *12 (E.D.N.Y. Apr. 9,
2010) (finding publication of notice in local newspaper appropriate), aff'd, 568 F.
App'x 78 (2d Cir. 2014).
The Court, however, agrees with Defendants that publication in Newsday, a
general daily circulation, is overbroad and thus unwarranted.
See Sherrill v.
Sutherland Glob. Servs., Inc., 487 F. Supp. 2d 344, 351 (W.D.N.Y. 2007) (denying
request to disseminate notice by emailing, physically posting, mailing, and publishing
it in an employee newsletter as “broader than necessary”). Plaintiffs have submitted
no evidence or viable arguments establishing that notice by way of first-class mail
and publication in CSEA Express would, together, be insufficient. To the contrary,
Plaintiffs appear to concede that most nonexempt County employees receive CSEA
Express. See Pl.’s Mem. at 7 (“Plaintiffs and a vast majority of all other nonexempt
county employees employed by Defendants reside in Nassau County and receive the
Union’s newsletter, CSEA Express.”). Moreover, notice via Newsday would be both
over- and under-inclusive in scope. Common sense dictates that, if published in
Newsday, the notice would be presented largely to persons not eligible to join the
collective action, and also exclude from its reach potential opt-in members who do not
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read that newspaper. Accordingly, the Court declines to permit Plaintiffs to publish
the notice in Newsday.
D. Production of Potential Collective Action Members’ Contact
In addition to the relief discussed above, Plaintiffs seek an order compelling
Defendants to “furnish to Plaintiffs’ counsel a computer-readable data file containing
the names, addresses, and telephone numbers of all nonexempt county employees
who currently work for or who have worked for Defendants dating back six (6) years
from the filing of the Complaint . . . .” Pl.’s Mem. at 11-12. Defendants do not object
to providing the type of information requested, but rather argue that the request
should be limited to two years. See Def.’s Mem. at 9.
It is typically appropriate for courts in FLSA collective actions to order the
discovery of names and addresses of potential opt-in plaintiffs. See Ack v. Manhattan
Beer Distributors, Inc., No. 11-CV-5582, 2012 WL 1710985, at *6 (E.D.N.Y. May 15,
2012) (noting that “[c]ourts routinely order discovery of names, addresses, and
telephone numbers in FLSA actions”); Capsolas v. Pasta Rest., Inc., No. 10 Civ. 5595,
2011 WL 1770827, at *3 (S.D.N.Y. May 9, 2011) (directing defendants to produce
names, addresses, and telephone numbers for potential opt-in plaintiffs); Fa Ting
Wang v. Empire State Auto Corp., No. 14-CV-1491, 2015 WL 4603117, at *14
(E.D.N.Y. July 29, 2015) (observing that “[d]isclosure of the names, addresses,
telephone numbers[,] and email addresses of putative class members is commonplace
in this district because such information is essential to identifying and notifying
potential opt-in plaintiffs”).
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As a general matter, the Court considers Plaintiffs’ request to be appropriate,
as the information they seek will not be “unduly burdensome or disruptive to
[D]efendant[s’] business operations.” Sexton, 2009 WL 1706535, at *13. Counsel for
Defendants shall therefore provide the names, addresses, and telephone numbers of
potential opt-in members in electronic format to counsel for Plaintiffs.
reasons stated above, however, Defendants need only provide such information for
potential collective action members employed by the County during the three-year
period prior to the commencement of this action, consistent with the applicable FLSA
statute of limitations.
For all of the foregoing reasons, Plaintiffs’ motion for an order: (i) conditionally
certifying this action as an FLSA collective action; (ii) authorizing the posting and
circulation of the Proposed Notice; and (iii) compelling Defendants to produce contact
information for potential opt-in plaintiffs, is granted in part and denied in part as set
forth above. The parties are hereby directed to submit to the Court within seven days
an agreed-upon schedule for Defendants’ production of potential opt-in members’
contact information and Plaintiffs’ provision of notice to potential opt-in members.
Any and all consent to join forms shall be submitted to Plaintiffs’ counsel within sixty
days of the date on which Plaintiffs provide such notice.
Dated: Central Islip, New York
October 30, 2017
s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
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