Martinez et al v. Midtown Cleaner,Inc., et al
OPINION AND ORDER re: 8 MOTION to Certify Class of Collective Action Members under the FLSA and To Approve Notice filed by Victor Martinez. For the foregoing reasons, conditional certification of the class, defined as requested in Paragraph Eighteen of the Complaint, is GRANTED. The parties shall confer and submit an agreed form of notice, consistent with the above opinion, by November 8, 2013. (Signed by Judge Lorna G. Schofield on 10/29/2013) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VICTOR MARTINEZ, et al.,
MIDTOWN CLEANER, INC., et al.,
13 Civ. 2644 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Plaintiffs Victor Martinez, Esmelin Gonzaga and Juan Ramirez, on behalf of themselves
and others similarly situated, bring this action against two corporations that are drycleaners in
Manhattan, Byung Y. Kim, their owner, and John Doe defendants. Plaintiffs’ claims arise under
the Federal Labor Standards Act (“FLSA”), the New York Labor Law (“NYLL”), and the New
York Wage Theft Prevention Act (“NYWTPA”). Before the Court is Plaintiffs’ Motion for
Approval of Collection Action Notice (“Motion to Certify”).
For the reasons stated below, Plaintiffs’ Motion to Certify is granted in its entirety.
On April 23, 2013, Plaintiffs filed a Class Action Complaint against thirteen Defendants,
alleging violations of the FLSA, NYLL and NYWTPA. On June 27, 2013, Plaintiffs filed the
Amended Class Action Complaint, asserting claims against two corporate and eleven individual
defendants (the “Defendants”). In the Complaint, Plaintiffs allege the following facts:
Plaintiff Martinez worked full time as a packer and delivery employee at Midtown
Cleaner, Inc. and Midtown Cleaners II, Inc. (collectively “Midtown”) in New York City from
December 10, 2012, to April 26, 2013. During his employment, he worked Monday through
Friday from 7:00 a.m. to 7:00 p.m., and on Saturday from 8:00 a.m. to 6:00 p.m., for a total of
approximately 68 hours per week. Martinez was paid a salary of $400 per week in cash every
week at the end of his Saturday shift. Despite working the aforementioned hours, he was not paid
at a level satisfying the minimum wage, nor was he paid overtime compensation or premium
wages for days in which he worked more than 10 hours. Martinez did not sign in or out of his
job, nor did he use a punch-card or scanner. Additionally, Martinez was terminated at the end of
his shift the day after Defendant. Kim received a copy of the original Complaint in this action.
Plaintiff Gonzaga worked full time as a delivery employee for the Defendants from March
19, 2013, to April 12, 2013. During his first week of work, he was scheduled for the same hours
as Martinez, and was paid $450 in cash. Subsequently, he did not work on Saturdays and
received only $375 in cash for his 57.5 hour work week. Like Rodriguez, he did not sign, scan or
punch into or out of work in any way. During his time working for the Defendants, Gonzaga
received an hourly wage of $6.72 per hour during his first week, and $6.52 per hour in
subsequent weeks. Like Martinez, Gongaza was never paid minimum wage for his hours worked,
overtime pay for his hours worked in excess of 40, or premium wages for days in which he
worked a spread of more than 10 hours.
Plaintiff Ramirez was employed full time as a cashier and stock clerk by the Defendants
from March 11, 2013, to the present. He worked the same hours as Martinez, and received a
salary of $600 per week in cash. Despite working approximately 68 hours per week he did not
receive overtime compensation, or premium wages for days in which he worked more than 10
hours. Ramirez did not sign in or out of his job, nor did he use a punch-card or scanner.
While employed by the Defendants, all three Plaintiffs worked with other employees who
similarly were not paid at a level satisfying the minimum wage, not paid overtime, nor premium
wages for days in which they worked a spread of at least 10 hours. Both corporate Defendants
are owned and operated by Defendant Kim, who personally supervised the Plaintiffs and
controlled the day-to-day operations of both stores.
Based on the foregoing allegations, Plaintiffs advance the following claims: First,
Defendants withheld minimum wages, overtime pay and pay for all hours worked from the
Plaintiffs and those similarly situated at the two stores for a period of six years prior to the filing
of the Original Complaint, in knowing violation or willful disregard of the FLSA. Second,
Defendants knowingly withheld the same payments as well as a “spread of hours” premium for
each day worked 10 or more hours from Plaintiffs and other New York employees who were
similarly situated within six years of the filing of the Original Complaint, in willful violation of
the NYLL. Third and fourth, Plaintiff Martinez alleges violation of the FLSA and the NYLL for
retaliatory termination. On July 2, 2013, Plaintiffs moved for conditional certification of the
action as a collective action and court facilitation of notice.
A. Legal Standard for Conditional Certification
Although the Second Circuit has never offered a definitive standard for the conditional
certification of collective actions under the FLSA, it has endorsed the two-step approach widely
used by the district courts in this circuit and by other circuit courts. Myers v. Hertz Corp., 624
F.3d 537, 554-555 (2d Cir. 2010) (“[T]he district courts of this Circuit appear to have coalesced
around a two-step method, a method which . . . we think is sensible.”); see also Sandoz v.
Cingular Wireless LLC, 553 F.3d 913, 915 n.2 (5th Cir. 2008); Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233 (11th Cir. 2008); Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-47 (6th
Cir. 2006). “The first step involves the court making an initial determination to send notice to
potential opt-in plaintiffs who may be ‘similarly situated’ to the Plaintiffs with respect to whether
a FLSA violation has occurred.” Myers, 624 F.3d at 555. The second step, typically taken upon
the completion of discovery, requires the court to determine, “on a fuller record, . . . whether a socalled ‘collective action’ may go forward by determining whether the plaintiffs who have opted
in are in fact ‘similarly situated’ to the Plaintiffs.” Id. “The action may be ‘de-certified’ if the
record reveals that they are not . . . .” Id.
To establish that the named plaintiffs are “similarly situated” to the potential opt-in
plaintiffs in the first stage of the inquiry, they must “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.’” Id. (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). “The
modest factual showing cannot be satisfied simply by unsupported assertions, but it should
remain a low standard of proof because the purpose of this first stage is merely to determine
whether similarly situated plaintiffs do in fact exist . . . .” Id. (internal quotation marks and
In addition, while the statute of limitations under FLSA is at most three years for willful
violations, courts in the Second Circuit have found it useful to facilitate notice for periods up to
six years where the evidence proffered by plaintiffs suggests that potential “similarly situated”
employees may have timely claims under the NYLL. Schwerdtfeger v. Demarchelier Mgm’t,
Inc., No. 10 Civ. 7557, 2011 WL 2207517, at *6 (S.D.N.Y. June 6, 2011). This over-inclusive
period promotes the interest of judicial economy by requiring defendants to submit lists just once
when conducting discovery. See Li v. 6688 Corp. d/b/a Sammy’s Noodle Shop & Grill, No. 12
Civ. 6401, 2013 WL 5420319 (S.D.N.Y. Sept. 27, 2013); see also, Schwerdtfeger, 2011 WL
2207517, at *6. Furthermore, “even where claims are untimely under FLSA, they may shed light
on the appropriateness of certifying a class action under the NYLL.” Harhash v. Infinity W.
Shoes, Inc., No. 10 Civ. 8285, 2011 WL 4001072, at *4 (S.D.N.Y. Aug. 25, 2011). Following this
practice, a court “will, on a fuller record, determine whether a so-called ‘collective action’ may
go forward by determining whether the plaintiffs who have opted in are in fact ‘similarly situated’
to the named plaintiffs.” Myers, 624 F.3d at 555. If, on this fuller record, it is determined that
other employees are not similarly situated the district court will “de-certify” the action. Id.
In the Complaint, Plaintiffs define the collective action class for which they seek
conditional certification as “all persons who are or were formerly employed by Defendants at any
time since April 23, 2007 to the entry of judgment in this case . . . who were non-exempt
employees within the meaning of the FLSA and who were not paid for all of their hours worked,
and were not paid minimum wages, and/or overtime wages . . .”
As for facts suggesting the existence of a common policy, the Complaint alleges that Mr.
Kim is the owner of both stores, and is in charge of their day-to-day operation. He was
responsible for interviewing Ramirez and Martinez, and set the schedules for all three Plaintiffs.
Kim personally told Martinez and Ramirez that they could not be paid by check, but would
receive cash. The Complaint further alleges that “the Defendants had a policy and practice of
refusing to pay its employees minimum wages for all of their hours worked, and/or overtime
wages for all of their hours worked over 40 in a workweek.”
Plaintiffs submitted three declarations, one by each of the Plaintiffs, in support of the
Motion to Certify. The declarations corroborate the allegations in the Complaint that the two
stores had common wage and hour practices. The declarations by Martinez and Ramirez also
offer exhibits showing hand-written pay sheets tracking their hours worked and noting their
payments. Martinez states that he
. . . know [s] others like [him] were not paid overtime at time and one half and
were not paid spread of hours pay by Defendants because [he] frequently heard
other similar employees, including but not limited to Victor Martinez (delivery
employee), Mike [last name not known] (cashier/stock clerk) and Efmelen
Gonzaga (delivery employee), complain that they worked more than 40 hours a
week and were not paid overtime and were only paid a weekly salary.
In nearly identical language, Martinez states that he derived his knowledge of the wage and hour
practices in the same way.
Based on the Complaint, Plaintiffs’ declarations and exhibits, Plaintiffs have made the
necessary “modest factual showing” that similarly situated potential opt-in plaintiffs exist at the
two stores for which Plaintiffs allege that they have personal knowledge of the common
compensation policy. See, e.g., Khalil v. Original Homestead Rest., Inc., No. 07 Civ. 695, 2007
WL 7142139, at *1 (S.D.N.Y. Aug. 9, 2007) (granting conditional certification on allegations in
the complaints and affidavits as the sole bases for the factual showing); Sipas v. Sammy’s
Fishbox, Inc., No. 05 Civ. 10319, 2006 WL 1084556, at *2 n.2 (S.D.N.Y. Apr. 24, 2006) (same);
Mazur v. Olek Lejbzon & Co., No. 05 Civ. 2194, 2005 WL 3240472, at *4-5 (S.D.N.Y. Nov. 30,
2005) (same). Leniency in favor of Plaintiffs at this stage comports with the spirit of the two-step
approach and its “low standard of proof” at the first step. Myers, 624 F.3d at 555.
For the foregoing reasons, conditional certification of the class, defined as requested in
Paragraph Eighteen of the Complaint, is GRANTED. The parties shall confer and submit an
agreed form of notice, consistent with the above opinion, by November 8, 2013.
Dated: October 29, 2013
New York, New York
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