Michael v. Bloomberg, L.P.
Filing
37
OPINION: The court (1) conditionally certifies this action as a collective action pursuant to § 216(b) of the FLSA, (2) authorizes the issuance of plaintiff's proposed notice to potential opt-in plaintiffs, and (3) orders defendants to provide the requested information-with the exception of social security numbers, dates of birth, and telephone numbers-for all persons employed by Bloomberg within 3 years preceding the date that the collective action notice is issued. Plaintiff may send the notice by email and may distribute a reminder notice before the end of the opt-in period, but Bloomberg need not post the notice in the workplace. This opinion resolves the motion listed as item 8 on the docket. (Signed by Judge Thomas P. Griesa on 4/17/2015) (kl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ERIC MICHAEL, individually and on behalf of
others similarly situated,
Plaintiffs,
v.
14-cv-2657 (TPG)
ECF CASE
OPINION
BLOOMBERG L.P.,
Defendant.
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Plaintiff, a former worker in the Analytics Department at Bloomberg L.P.
("Bloomberg"), brings suit against Bloomberg under the Fair Labor Standards Act ("FLSA") and
New York Labor Law ("NYLL"). Plaintiff has filed suit on behalf of himself and others
similarly situated.
Before the Court is plaintiff's motion to conditionally certify a FLSA collective action
pursuant to 29 U.S.C. § 216(b) ofthe FLSA. (Dkt. No.8.) Plaintiff also seeks a court order
approving plaintiff's proposed collective action notice, and requiring Bloomberg to provide
information to identify potential opt-in plaintiffs.
For the reasons set forth below, the motion is granted.
BACKGROUND
The following facts are drawn from the Second Amended Complaint (Dkt. No. 32) (the
"Complaint"), which plaintiff filed after the court denied plaintiff's motion for a broad protective
order and for leave to proceed pseudonymously. In its opinion denying plaintiff's motion for
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leave to proceed pseudonymously, the court previously summarized the facts alleged here. (Dkt.
No. 30.) These facts have not changed with the filing of the Second Amended Complaint, which
now identifies plaintiff by name but is otherwise identical to the previously operative complaint.
Nevertheless, the court recapitulates the facts here.
Plaintiff brings this case as a collective action under the FLSA. From August 2012
through January 2014, plaintiffworked in the Analytics Department at Bloomberg. Plaintiff
represents a putative collective of "all representatives in the Analytics department who were not
paid time and one half for hours over 40 worked in one or more weeks." Com pl. ,-r 9. The
collective includes three different job titles, which ref1ect varying levels oftraining and
experience: Analytics Representatives, Analytics Specialists, and Advanced Analytics
Specialists (collectively, "ADSK Reps"). The primary duty of ADSK Reps is to answer
questions from Bloomberg customers regarding the operation of software running on Bloomberg
terminals. These questions primarily came through "Bloomberg Chat" requests initiated by
Bloomberg customers through their Bloomberg terminals.
According to the Complaint, ADSK Reps regularly worked more than 40 hours per week,
and were required to work, without overtime pay, before and after their shifts and during lunch
hours. The Complaint further alleges that ADSK Reps were required to work from home, as
well as on weekends and holidays, without receiving overtime pay.
DISCUSSION
The FLSA regulates minimum and overtime wages paid by employers engaged in
interstate commerce, among other practices. Grochowski v. Phoenix Canst, 318 F.3d 80, 87 (2d
Cir. 2003). The statute affords workers a right to sue on behalf of themselves and "other
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employees similarly situated" for violations of the minimum wage and overtime provisions of
the FLSA. See 29 U.S.C. § 216(b).
Courts in this circuit follow a two stage certification process for FLSA collective actions:
first, on the initial motion for conditional class certification, and second, after discovery. Myers
v. Hertz Corp .. 624 F.3d 537, 554-55 (2d Cir. 20 I 0). At this first stage, the burden is on plaintiff
to show that he and potential opt-in plaintiffs are similarly situated. E.g., Kim Man Fan v. Ping's
On Matt, Inc., 13 Civ. 4939,2014 WL 1512034, at *1 (S.D.N.Y. Apr. 14, 2014). However, this
burden is minimal, because atter discovery, courts look to the record to determine whether opt-in
plaintiffs are truly similarly situated to the name plaintiffs; if not, the action may be "decertified" and the opt-in claims may be dismissed. Myers, 624 F.3d at 555; Amador v. Morgan
Stanley & Co. LLC, No. 11 Civ. 4326,2013 WL 494020, at *3 (S.D.N.Y. Feb. 7, 2013).
To meet this low threshold at the first stage, plaintiffs need only make a "modest factual
showing that [he] and potential opt-in plaintiffs together were victims of a common policy or
plan that violated the law." Myers, 624 F.3d at 555. Plaintiff may "accomplish this by making
some showing that there are other employees ... who are similarly situated with respect to their
job requirements and with regard to their pay provisions." !d. Although this "modest factual
showing cannot be satisfied simply by unsupported assertions, ... it should remain a low standard
ofproofbccause the purpose ofthis first stage is merely to determine whether similarly situated
plaintiffs do in fact exist." ld. (internal citation omitted).
Because the determination that plaintiffs are similarly situated is merely preliminary,
courts typically grant conditional certification. Amador, 2013 WL 494020, at *3. And, in
reviewing a request for conditional certification, the court need not evaluate the underlying
merits of plaintiffs claims. See lndergit v. Rite Aid Cmp., No. 08 Civ. 9361, 20 I 0 WL 2465488,
at *4 (S.D.N.Y. Jun. 16, 2010).
At this point in the litigation, plaintiff has satisfied his minimal burden of showing that he
is "similarly situated" to the proposed collective members. In addition to the allegations in the
Complaint, the affidavit submitted by plaintiff in support of his motion demonstrates that he is
similarly situated to other ADSK Reps. Plaintiff and other ADSK Reps share similar workplace
responsibilities, the same location of employment, and similar salary and overtime practices.
This showing is all that is required under § 216(b ).
In opposition, Bloomberg urges the court to hold that the ADSK Reps who would be
potential opt-in plaintiffs are subject to certain exemptions from the FLSA. Bloomberg claims
that these potential plaintiffs are subject to the "administrative exemption," which exempts from
FLSA coverage salaried workers earning at least $455 per week"[ w ]hose primary duty is the
performance of office or non-manual work directly related to the management or general
business operations of the employer or employer's customers" and "includes the exercise of
discretion and independent judgment with respect to matters of significance." 29 C.F.R.
§ 541.200(a)(2)-(3). Bloomberg also claims that some or all the potential opt-in plaintiffs are
subject to the "computer exemption," which exempts from the FLSA overtime requirements
"any employee who is a computer systems analyst, computer programmer, software engineer, or
other similarly skilled worker, whose primary duty" involves certain aspects of computer
systems or programs. 29 U.S. C. § 213(a)( I 7).
Bloomberg's arguments are unavailing, and misconstrue the scope of inquiry at this
preliminary stage. As another court in this district recently noted in a similar case involving
Bloomberg, "the possible existence of exemptions is a merits issue that is not relevant at the
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conditional certification stage." Jackson v. Bloomberg, L.P., 298 F.R.D. 152, 160-62 (S.D.N.Y.
2014). Ifthe court were to hold that "the mere existence of possible exemptions could defeat
conditional certification, 'no FLSA action that is premised upon an alleged misclassification
under [an] exemption could be resolved through the collective action process, thereby defeating
the stated purpose of the FLSA and wasting judicial resources by requiring courts to consider
each individual plaintiffs claim in a separate lawsuit."' I d. (quoting lndergit, 20 I 0 WL
2465488, at *9).
There are indeed cases that have held that the existence of possible FLSA exemptions is
relevant to the analysis of whether employees are similarly situated. But such cases generally
address certification of a collective action after the completion of discovery, or involve a
nationwide class. E.g., Romero v. H.B. Automotive Group, Inc., No. 11 Civ. 386, 2012 WL
1514810, at *7 (S.D.N.Y. May 1, 2012); Guillen v. Marshalls ofMA, Inc., 750 F. Supp. 2d 469
(S.D.N.Y. 2010). Such cases are simply not relevant to the potential collective at issue in
plaintiff's proposed notice.
A. Notice to Former Employees
After conditionally certifying a group ofFLSA plaintiffs, a court has broad discretion to
implement § 216(b) by facilitating notice to potential plaintiffs of the pendency of the action and
of their opportunity to join the litigation as represented members. See Myers, 624 F. 3d at 554.
PlaintitTs have submitted a proposed notice to the court. The proposed notice describes
the litigation as follows:
The lawsuit claims that Bloomberg failed to pay the Plaintiffs overtime premium pay at
the rate oftime and one half for those work weeks where they worked in excess of forty
hours in violation of the Federal Fair Labor Standards Act. The lawsuit seeks back pay
and liquidated damages. Bloomberg does not agree that it violated the law and the Judge
who will hear the case has not made any decision yet about who is right.
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(Dkt. No. 10-1 at Ex. A.) The proposed notice further advises potential plaintiffs that they may
join the current lawsuit against Bloomberg and that if they elect to join the litigation, then they
must fill out a consent form, which is included in the notice mailing, and send the completed
form to plaintiff's counsel. The notice also advises potential plaintiffs that in the event that they
elect not to join the litigation, they will not be bound by any judgment or settlement in the case.
Bloomberg claims that plaintiff's proposed notice is "not neutral" and must be modified.
(DI
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