Dolinski et al v. Avant Business Service Corporation et al
Filing
25
MEMORANDUM AND ORDER granting 13 Motion to Certify Class. For the reasons explained, plaintiffs' motion for preliminary certification as a FLSA collective action is granted. The Clerk is directed to terminate the motion. (Docket # 13.) Plaintiffs are directed to submit a revised proposed notice to potential opt-in plaintiffs within 14 days ofthe date of this order. (Signed by Judge P. Kevin Castel on 1/28/2014) (lmb)
USDSSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
ALLAN DOLINSKI, LIBRADO
VASCONCELOS, RAYMOND JOHNSON and
ERIK CRESPO, Individually and on Behalf of
All Other Persons Similarly Situated,
Plaintiffs,
-against-
DOCUMENT
ELECTRONICALLY FILED .
DOC#:
DATE FILED:
-;--1
1-;< Y-/(j
13 Civ. 4753 (PKC)
MEMORANDUM
AND ORDER
A V ANT BUSINESS SERVICE
CORPORATION, CHARLES CHIUSANO and
RICHARD RIVERA,
Defendants.
-----------------------------------------------------------x
CASTEL, U.S.D.J.
Plaintiffs bring wage-and-hour claims under the Fair Labor Standards Act, 29
U.S.C. § 201, et seq., (the "FLSA"), and the New York Labor Law on behalf ofthemse1ves and
others similarly situated. Plaintiffs worked as couriers employed by defendant Avant Business
Service Corporation ("Avant"). They claim that Avant and the two individual defendants
violated federal and state and wage-and-hour laws by failing to pay oveliime wages, refusing to
reimburse mandatory work-related expenses and requiring employees to work through meal
breaks without compensation. Plaintiffs asseli that these pay practices were applied to couriers
company-wide, and move for approval of notice as a collective action under the FLSA. (Docket
# 13.) Plaintiffs do not move for certification as a class action under Rule 23, Fed. R. Civ. P., for
their New York Labor Law claim.
As more fully discussed, plaintiffs have come forward with evidence that satisfies
the minimal burden required for preliminary certification as a collective action under the FLSA.
Their motion is therefore granted. Plaintiffs are also directed to re-submit their proposed form of
notice to potential opt-in plaintiffs in order to clarify the eligibility of potential opt-in plaintiffs
and more closely conform to the proposed collective action.
BACKGROUND.
Plaintiffs Raymond Johnson, Allan Dolinski and Librado Vasconcelos each
submits a declaration that describes the defendants' allegedly unlawful practices. l All three
plaintiffs have worked as couriers employed by Avant. (Johnson Dec. '111; Dolinski Dec. '11;
Vasconcelos Dec.
'11.)
As couriers, their duties principally involved making deliveries by hand
within New York City. (Johnson Dec. '1'13, 5; Dolinski Dec. '11'13, 5; Vasconcelos Dec. '11'113, 5.)
There is no dispute that they are non-exempt employees under the FLSA.
Plaintiffs assert that defendants had in place de facto policies that violated the
FLSA in three respects. First, plaintiffs contend that defendants failed to comply with the
FLSA's overtime pay requirements. According to plaintiffs, they "generally worked more than
40 hours per week," and typically were not compensated at time-and-a-half rates when they
worked in excess of 40 hours. (Johnson Dec. '118; Dolinski Dec. '11'117, 20; Vasconcelos Dec. '11'118,
18.) They assert that defendants did not pay them "at least minimum wage" for all hours
worked. (Johnson Dec. '114; Dolinski Dec. '120; Vasconcelos Dec. '1118.) More specifically,
Dolinski and Vasconcelos estimate that, on average, they were not paid "for at least 1 hour per
day of work." (Dolinski Dec. '1124; Vasconcelos Dec. '123.)
Second, plaintiffs contend that they were required to work through unpaid lunch
breaks, even though defendants knew that couriers were "on call during meal periods" and
assigned work to couriers during their meal periods. (Johnson Dec. '11'1117-18; Dolinski Dec.
'II
23; Vasconcelos Dec. '11'1121-22.) According to Vasconcelos, when he complained to two
I Plaintiff Erik Crespo, who filed a consent to become a party plaintiff on July 29,2013 (Docket # 5), has not filed a
declaration.
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dispatchers and defendant Richard Rivera, the operations manager for messengers and facilities
at Avant, about being denied pay for work performed during meal breaks, they replied that the
defendants had a policy of not paying for work performed during half-hour meal breaks.
(Vasconcelos Dec.
~~
16-17.)
Third, plaintiffs asselt that they were required to purchase their own Metrocards
and to pay $100 for company radios, both of which were required to perform work
responsibilities. (Johnson Dec. '1'124-25; Dolinski Dec.
~~
9-11,30-33; Vasconcelos Dec.
~'IIO,
29-32.) They claim that they were provided with weekly unlimited Metrocards, which were
dedncted from their paychecks, but that they were never reimbursed for the expense. (Johnson
Dec.
'I~
24, 26-27; Dolinski Dec.
~~
30-33; Vasconcelos Dec.
~~
29-32.)
Plaintiffs state that at any given time, the defendants employed more than 25
couriers, all of whom regularly worked more than 40 hours per week without receiving the
minimum wage required by the FLSA. (Johnson Dec.
Vasconcelos Dec.
~~
~~
3, 30-36; Dolinski Dec. '1'13, 36-42;
3,35-41.) Dolinski asserts that between 2010 and 2012, he complained that
he was not being paid the required compensation and had not been reimbursed for Metrocard
expenses; he also states that he filed a complaint with the New York Depmiment of Labor in the
fall of2011. (Dolinski Dec.
~~
16-19.) Vasconcelos also states that he complained to certain
dispatchers that he was not being fully compensated, after which he "sometimes was paid for
some ofthe hours which I had sought but was never paid for all my hours worked."
(Vasconcelos Dec.
~~
16-17.) Vasconcelos states that when he raised the issue with defendant
Rivera, he responded that defendants "had a policy not to pay for Metrocards and not to pay for
work performed during the meal break." (Vasconcelos Dec.
-3-
~
17.)
In opposing the plaintiffs' motion for preliminary certification, the defendants
assert that Avant tracks employee hours using a variety of teclmologies, including software
programs and fingerprint scans. (Rivera Aff.
~~
9,11-13; Eichenbaum Aff.
~~
7-8.) Prior to
2011, Avant tracked employee hours using hard-copy time sheets. (Rivera Aff.
~
23.)
Defendants also assert that Avant has a policy to reimburse employees for work-related expenses
(Rivera Aff. '1'137-41; Eichenbaum Aff.
breaks (Rivera Aff.
~~
~~
15-19), has a policy that provides for employee meal
16-19 & Ex. B) and that Avant provides written guidelines on wage-and-
hour laws for all new couriers. (Rivera Aff. '114 & Ex. B.)
STANDARD FOR PRELIMINARY CERTIFICATION AS A COLLECTIVE ACTION
The text ofthe FLSA provides a mechanism by which similarly situated
employees may opt into a collective action:
An action ... 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). District courts have discretion to implement section 216(b) "'by facilitating
notice to potential plaintiffs' of the pendency ofthe action and oftheir opportunity to opt-in as
represented plaintiffs.'" Myers v. Hertz Corp., 624 F.3d 537,554 (2d Cir. 2010)
(quoting Hoffillaml-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)). "In a collective action
under FLSA - unlike in a class action under Federal Rule of Civil Procedure 23 - only plaintiffs
who affirmatively opt in to the case can benefit from the judgment or be bound by it." Damassia
v. Duane Reade, Inc., 2006 WL 2853971, *2 (S.D.N.Y. Oct 5, 2006) (Lynch, J.). Although
orders facilitating notice are often referred to as orders "certifying" a collective action,
the FLSA does not contain a certification provision. rd. "Certification" is simply "the district
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court's exercise of the discretionary power ... to facilitate the sending of notice to potential class
members." Myers, 624 F.3d at 555 n.l0.
In determining whether to exercise its discretion to send notice to potential opt-in
plaintiffs, courts in this Circuit conduct a two-phase inquiry. Id. at 554---55 (reviewing the twophase inquiry and deeming it "sensible" for evaluating certification under section 216(b)); see
also Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 367-68 (S.D.N.Y. 2007). In the
first phase, the court makes a preliminary determination as to whether potential opt-in plaintiffs
are "similarly situated" to the named plaintiffs. See Myers, 624 F.3d at 555; Damassia, 2006
WL 2853971 at *3. Plaintiffs' burden at this initial stage is "minimal," id., requiring only 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 Hoffillarul v.
SbatTO, Inc., 982 F. Supp. 249,261 (S.D.N.Y. 1997) (Sotomayor, 1.)). "The modest factual
showing cannot be satisfied simply by unsupported assellions, 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. (emphasis in original; quotation marks and internal
citation omitted). No showing of numerosity, typicality, commonality and representativeness is
required. See Lynch, 491 F. Supp 2d at 369; Iglesias-Mendoza v. La BeJle Farm, Inc., 239
F.R.D. 363,368 (S.D.N.Y. 2007) ("The 'similarly situated' standard ... is thus considerably
more liberal than class certification under Rule 23.") (quotation marks omitted).
If the plaintiffs meet their burden, the COUll conditionally certifies the collective
action and authorizes the plaintiffs to send notice to potential collective action members. See id.
at 368. COUll-authorized notice is preferred because "[bJoth the parties and the COUll benefit
from settling disputes about the content ofthe notice before it is distributed" and because such
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notice "serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff
dates to expedite disposition ofthe action." Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165,
172 (1989). After receiving the court-approved notice, potential members may elect to opt in by
filing consent forms with the Court. See Lynch, 491 F. Supp. 2d at 368.
After discovery, typically on the defendant's motion for decertification, cOUlis
engage in the second phase of analysis. See id.; Iglesias-Mendoza, 239 F.R.D. at 367. During
the second stage, the court determines on a full record, and under a more stringent standard,
whether the additional plaintiffs are, in fact, similarly situated. See Damassia, 2006 WL
2853971 at *3. If the court concludes that all plaintiffs are similarly situated, the collective
action proceeds to trial; otherwise, the collective action is decertified and the claims of the opt-in
plaintiffs are dismissed without prejudice. See Lee v. ABC Carpet & Home, 236 F.R.D. 193,
197 (S.D.N.Y. 2006).
DISCUSSION
1.
Plaintiffs Have Come Forward With Some Evidence of a Common Policy
as to Their Wage and Hour Claims.
The FLSA requires an employer to pay non-exempt employees time-and-a-half
wages if they work more than forty hours per week. 29 U.S.C. § 207(a); 29 C.F.R. § 778.315. It
requires a minimum wage for each hour worked. 29 U.S.C. § 206(a). An FLSA implementing
regulation separately requires an employee to be paid for meal breaks unless that employee is
"completely relieved from duty." 29 C.F.R. § 553.223.
Plaintiffs have come forward with evidence to support their claim that the
defendants have a common policy not to pay for all hours worked or for overtime hours accrued
by couriers. Specifically, the declarations of plaintiffs Dolinski, Vasconcelos and Johnson
describe an ongoing practice wherein the defendants refused to compensate them at time-and-a-
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half rates when they worked in excess offorty hours per week. (Johnson Dec.
~~
7,20; Vasconcelos Dec.
~
~
8; Dolinski Dec.
8.) Each alleges that the defendants properly paid them minimum
wage for those hours that they were credited with working, but that there the defendants had a
practice of not crediting them for all hours actually worked. (Johnson Dec. '1'120, 32; Dolinski
Dec. '126; Vasconcelos Dec. '1'124-25, 37.) Dolinski states that he complained to defendant
Richard Rivera in 2010 and 2011 about not being paid for all hours worked and for not being
paid overtime; Rivera said he would look into the matter but thereafter failed to address the
complaint. (Dolinski Dec.
~
16.) Vasconcelos also states that he complained to Rivera about not
being paid for all hours worked. (Vasconcelos Dec.
a dispatcher identified as Dre. (Dolinski Dec.
~~
~
17.) Dolinski raised the same complaint to
17-18.)
The declarants also state that they have personal knowledge of other non-party
couriers who were subject to defendants' alleged practice of not paying overtime wages or for all
hours worked. Vasconcelos states that a co-worker named Frankie, whose last name is
unknown, had similar complaints. (Vasconcelos Dec. '139.) Dolinski states that he had
conversations with employees identified as "Marvin" and "Smalls," who both stated that they
were not compensated for all hours worked and were not paid overtime wages. (Dolinski Dec. '1
40.) Jolmson states that, in addition to having discussed defendant's pay practices with plaintiffs
Crespo and Vasconcelos, a non-party cOUlier named Thomas Atchison complained about not
receiving compensation for all hours worked or for oveliime. (Johnson Dec.
~
34.)
The declarations of plaintiffs Johnson, Dolinski and Vasconcelos satisfy the
Second Circuit's requirement of a "modest factual showing" going toward the existence of
similarly situated plaintiffs. Myers, 624 F.3d at 555. Each describes a de facto practice not to
pay overtime, and a practice to pay couriers the minimum wage for credited hours while not
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crediting them for all hours worked. They also have identified other couriers who have stated
that they were subject to the same policy. While defendants vigorously dispute plaintiffs' claims
and assert that they lawfully compensated couriers and informed them of applicable wage-andhOUl'laws
(see,~,
Rivera Aff. -,r-,r 7-11, 14-17,23-26 & Ex. B), a motion for preliminary
certification as a collective action does not resolve the case on the merits. Moreover, other
COUlts in this District have granted motions for preliminary certification when plaintiffs have
come fOlward with some evidence that an employer's de facto policies violate the FLSA. See,
~,
Winfield v. Citiballk, N.A., 843 F. Supp. 2d 397, 405-06 (S.D.N.Y. 2012) (Koeltl, J.)
(reviewing evidence of employer conduct that "resulted, in practice, in a pattern of FLSA
violations"); Chhab v. Darden Restaurants, Inc., 2013 WL 5308004, at *14 (S.D.N.Y. Sept. 20,
2013) (Buchwald, J.) (plaintiffs made some showing that employer policies "led to common
deviations which resulted in FLSA violations.").
In addition, plaintiffs also have come forward with some evidence that, under a
common policy, similarly situated employees were denied full compensation for work performed
during their designated meal breaks. They state that they were not paid for meal breaks, even
though they were kept on call and received assignments during meal breaks. (Jolmson Dec.
17-18; Dolinski Dec. '1'1 22-23; Vasconcelos Dec.
-,r'1
-,r 22.) Vasconcelos states that when he
complained to dispatchers identified as "Dre" and "Angel" that he was not being paid for work
during half-hour meal breaks, they responded that defendants have a policy not to pay for work
perfol1ned at meal breaks. (Vasconcelos Dec.
-,r 16.) Vasconcelos also states that when he
complained to Rivera about not being paid for work performed at meal breaks, Rivera also stated
that defendants had a policy against doing so. (Vasconcelos Dec.
-8-
'1 17.)
Plaintiffs' asse1iions that defendants had a conml0n practice not to pay couriers
for work performed during meal breaks, and the assetiion by Vasconcelos that he was expressly
told as much by three members of management, are sufficient to grant preliminary certification
on plaintiffs' claims going toward compensation at meal breaks.
II.
Plaintiffs Have Come Forward with Evidence of a Common Policy as to
the Alleged Failure to Reimburse Mandatory Work Expenses.
Separately, plaintiffs assert in sufficient detail that the defendants maintained a
common policy of unlawfully refusing to reimburse employees for necessary workplace-related
expenses. FLSA implementing regulations forbid employers from requiring employees to pay
for "tools of the trade" and costs borne "primarily for the benefit or convenience of the
employer," if such expenses bring employee wages below the federal minimum wage. See 29
C.F.R. §§ 531.32(c), 531.35; see also Guan Ming Lin v. Benihana Nat'1 Corp., 755 F. Supp. 2d
504,511-13 (S.D.N.Y. 2010) (Marrero, J.) (summarizing "tools ofthe trade" regulation).
Plaintiffs assert that they were required to pay $100 for company radios that were
necessary to carry out work assigmnents, and that defendants did not reimburse them for the
required purchase of Metro cards. (Johnson Dec. '1'124-25; Dolinski Dec. ~~ 9-11,30-33;
Vasconcelos Dec. '1'110, 29-32.) They also offer evidence of salary deductions to pay for
Metrocards.
(See,~,
Jolmson Dec. Ex. A.) According to the defendants, these asseliions are
baseless because, since May 2012, Avant has provided employees with iPhones. (Rivera Dec. ~
29.) They assert that for fifteen years, Avant has given employees the option to purchase taxexempt monthly Metrocards, which currently are discounted to $89.76 fi-om their face value of
$112. (Rivera Dec.
~~
37-41.) However, even accepting the truth of defendants' factual
assertions, they do not contradict plaintiffs' claims that Avant does not reimburse them for
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Metrocard purchases that were required to perform their jobs, and that they also were required to
purchase radios for use in their employment.
Plaintiffs have come fOlward with evidence that defendants had a common policy
of failing to reimburse plaintiffs for expenses required to perform their work responsibilities.
Their motion for preliminary certification is therefore granted as to the alleged mandatory radio
and Metrocard purchases.
III.
Plaintiffs' Proposed Form of Notice.
Plaintiffs are directed to revise certain portions of the proposed notice in light of
the objections raised by defendants.
The proposed notice states that plaintiffs seek to bring claims on behalf of cutTent
and former Avant employees "who worked as couriers or in other similar non-managerial, non
administrative positions on or after July 10,2007." (Rand Dec. Ex. A) Plaintiffs maintain that
this language is intended to incorporate only those employees who functioned as couriers but
may have had a different job title, while defendants cotTectly note that this language could
potentially incorporate a broader range of employees. (Reply at 4; Opp. Mem. at 15-16.)
Plaintiffs should narrow this language to clarify that the collective action includes only couriers
and those who perform the duties of couriers.
Defendants also note that the FLSA includes a limitations period ofthree years,
29 U.S.C. § 255(a), whereas plaintiffs seek the collective action notice to encompass couriers
employed within the previous six years. Plaintiffs assert that a six-year period is wan'anted in
order to facilitate discovery, given that they also assert claims under the New York Labor Law.
(PI. Mem. at 13-15.) Plaintiffs have not moved for Rule 23 certification for their New York
Labor Law claims. Discovery in this case is ongoing. Plaintiffs do not persuasively explain how
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expanding the collective action to a six-year period would, in this instance, facilitate discovery as
to their New York Labor Law claims. They also have not come forward with evidence that
supports their argument that the limitations period should be equitably tolled because plaintiffs
were unaware of applicable laws, particularly given that plaintiffs state that they unsuccessfully
complained to certain supervisors and the New York Department of Labor. (Dolinski Dec. 'iI'iI
16-19; Vasconcelos Dec. 'iI'iI16-17.) Plaintiffs' revised form of notice therefore should be
limited to those employed as couriers during the FLSA's three-year limitations period.
CONCLUSION
For the reasons explained, plaintiffs' motion for preliminary certification as a
FLSA collective action is granted. The Clerk is directed to terminate the motion. (Docket # 13.)
Plaintiffs are directed to submit a revised proposed notice to potential opt-in
plaintiffs within 14 days ofthe date of this order.
SO ORDERED.
/
Dated: New York, New York
January 28,2014
- 11 -
P.
vin Castel
United States District Judge
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