Alvarez v. Schnipper Restaurants LLC et al
Filing
61
OPINION AND ORDER re: 37 MOTION to Certify Class (conditional collective motion) filed by Martin Alvarez: For the reasons stated above, it is hereby ORDERED that: (1) The Court grants conditional certification of the FLSA claim as a r epresentative collective action pursuant to 29 U.S.C. § 216(b) on behalf of all delivery persons employed by Defendants at each of their four restaurants located in New York City for the three-year period prior to the filing of the Complaint (co llectively, the "Covered Employees"); (2) The Court grants approval of the distribution of the notice of this FLSA Action to Covered Employees, including a consent form (or opt-in form) as authorized by the FLSA; (3) Within two weeks of the filing of this Order, the parties are to submit a joint proposed FLSA notice; (4) Within ten days of the filing of this Order, Defendants are to produce in Excel format the names, titles, compensation rates, dates of employment, last known mailing a ddresses, known email addresses, and all known telephone numbers of the Covered Employees; (5) The Court denies Plaintiff's motion for equitable tolling of the FLSA statute of limitations until such time that Plaintiff is able to send notice to potential opt-in plaintiffs; and (6) The Court denies Plaintiff's motion for equitable tolling of the FLSA statute of limitations for the period during which the parties were engaged in the S.D.N.Y. Mediation Program. The Clerk of the Court is respectfully directed to terminate the instant motion, Doc. 37. (Signed by Judge Edgardo Ramos on 12/11/2017) (jwh) Modified on 12/12/2017 (jwh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARTIN ALVAREZ a/k/a EDUARDO LOPEZ,
individually and on behalf of all others similarly
situated,
Plaintiff,
OPINION AND ORDER
- against 16 Civ. 5779 (ER)
SCHNIPPER RESTAURANTS LLC, SRG1 LLC d/b/a
SCHNIPPER’S QUALITY KITCHEN, SRG2 LLC
d/b/a SCHNIPPER’S QUALITY KITCHEN, SRG 570
LEX LLC d/b/a SCHNIPPER’S QUALITY KITCHEN,
SRG NYP LLC d/b/a SCHNIPPER’S QUALITY
KITCHEN, ANDREW SCHNIPPER, and JONATHAN
SCHNIPPER,
Defendants.
Ramos, D.J.:
Named Plaintiff Martin Alvarez (“Alvarez”) brings this action under the Fair Labor
Standards Act (“FLSA”) and New York Labor Law (“NYLL”). Compl., Doc. 1. Plaintiff
alleges that he and all other similarly situated employees are entitled to unpaid minimum wage
and costs for tools of the trade from a chain of Manhattan restaurants operating under the name
“Schnipper’s Quality Kitchen.”
Plaintiff brings this suit against corporate defendants Schnipper Restaurants LLC, SRG1
LLC (d/b/a Schnipper’s Quality Kitchen) (“Schnipper’s Times Square”), SRG2 LLC (d/b/a
Schnipper’s Quality Kitchen) (“Schnipper’s Flatiron”), SRG 570 LEX LLC (d/b/a Schnipper’s
Quality Kitchen) (“Schnipper’s Midtown East”), and SRG NYP LLC (d/b/a Schnipper’s Quality
Kitchen) (“Schnipper’s Financial District”). Plaintiff also brings this suit against individual
defendants Andrew Schnipper and Jonathan Schnipper) (collectively, “Defendants”).
Alvarez asserts that he was employed as a delivery person for Schnipper’s Times Square
from May 2013 until May 2016. Declaration of Martin Alvarez in Support of Plaintiff’s Motion
for Conditional Certification, Doc. 39 (“Alvarez Decl.”), ¶ 1. Alvarez claims that during his
employment, he also worked at the three other locations of Schnipper’s Quality Kitchen. Id. ¶ 2.
During Alvarez’s employment, he claims he was paid at a rate between $5.00 and $7.50 per hour
and did not receive notice that Defendants were taking a tip credit until August 2014. Id. ¶¶ 5, 7.
He was also required to engage in nontipped work for over twenty percent of his work day. Id. ¶
8. As a delivery person, Alvarez was required to use a bicycle to make deliveries; however, he
used his own bicycle and was not compensated for the costs of purchasing, repairing, or
maintaining his bicycle. Id. ¶ 9. Alvarez also alleges that he never received a proper wage and
hour notice from Defendants, and did not receive proper wage statements each month. Id. ¶¶ 13–
14. According to Alvarez, other non-managerial tipped employees were subject to the same
policies and practices. Id. ¶¶ 3, 4, 5, 7, 8, 9–12, 13–14.
Presently before the Court is Plaintiff’s motion for: (1) conditional certification of a
FLSA Collective Action; (2) approval of Plaintiff’s proposed notice and consent forms; (3)
production by Defendants of contact information for all potential opt-in plaintiffs; (4) approval
of the posting of the proposed notice at Schnipper’s Quality Kitchen locations; (5) tolling of the
FLSA statute of limitations until Plaintiff is able to send notice to potential opt-in plaintiffs; and
(6) tolling of the FLSA statute of limitations from November 10, 2016 to the date of this Order
due to the parties’ participation in the S.D.N.Y. Mediation Program. See Doc. 37. As discussed
below, Plaintiff’s motion is GRANTED in part and DENIED in part.
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I. Conditional Certification of FLSA Collective Action
A. Legal Standard
Pursuant to the FLSA, an individual may file suit against an employer on behalf of
himself and “other employees similarly situated” who give “consent in writing” to become party
plaintiffs. 29 U.S.C. § 216(b) (2012). “District courts have discretion to facilitate this collective
action mechanism by authorizing that notice be sent to potential plaintiffs informing them of ‘the
pendency of the action and of their opportunity to opt-in as represented plaintiffs.’” Mark v.
Gawker Media LLC, No. 13 Civ. 4347 (AJN), 2014 WL 4058417, at *2 (S.D.N.Y. Aug. 15,
2014) (quoting Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010)).
The Second Circuit has endorsed a two-step framework for determining whether a court
should certify a case as a collective action under § 216(b). See Myers, 624 F.3d at 554–55; see
also Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016). This process
entails an analysis of whether prospective plaintiffs are “similarly situated” at two different
stages: an early “notice stage,” and again after discovery is largely complete. See McGlone v.
Contract Callers, Inc., 867 F. Supp. 2d 438, 442 (S.D.N.Y. 2012) (citing Bifulco v. Mortgage
Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009)). At stage one, the court makes “an initial
determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated’ to the
Plaintiffs with respect to whether a[n] FLSA violation has occurred.” Myers, 624 F.3d at 555
(citations omitted). 1 At stage two, after additional plaintiffs have opted in, “the district court
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When employees who appear similarly situated are technically employed by separate entities, some courts in this
District nevertheless “impose liability . . . not only on the nominal employer but also on another entity comprising
part of the single integrated employer.” Yap v. Mooncake Foods, Inc., 146 F. Supp. 3d 552, 557 (S.D.N.Y. 2015)
(internal citations omitted). “While the Second Circuit has yet to rule on whether the ‘integrated enterprise/single
employer doctrine’ is applied in FLSA cases, the ‘shared policy concerns underlying the . . . doctrine and the FLSA’
urge the theory's application to FLSA claims.” Id. at 558 (quoting Lopez v. Pio Pio NYC, Inc., No. 13 Civ. 4490
(HB), 2014 WL 1979930, at *3 (S.D.N.Y. May 15, 2014). To show that a group of employers operate as a “single
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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.” Id. If the court concludes that they are not similarly situated, the action may be “decertified,” and the opt-in plaintiffs’ claims “may be dismissed without prejudice.” Id.
Here, Plaintiff seeks an initial determination of the propriety of notice to putative opt-in
plaintiffs. “Because minimal evidence is available” at this early stage of the proceedings, and
because the Court “retain[s] the ability to reevaluate whether the plaintiffs are similarly situated,”
Plaintiff faces a “‘relatively lenient evidentiary standard.’” McGlone, 867 F. Supp. 2d at 442
(quoting Cunningham v. Elec. Data Sys. Corp., 754 F. Supp.2d 638, 644 (S.D.N.Y. 2010) and
Mentor v. Imperial Parking Sys., Inc., 246 F.R.D. 178, 181 (S.D.N.Y. 2007)). He must 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 (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 citations omitted). “Accordingly, in deciding whether to
grant the [Plaintiff’s] motion, the Court must merely find ‘some identifiable factual nexus which
binds the named plaintiffs and potential class members together as victims’ of a particular
practice.” Guzelgurgenli v. Prime Time Specials Inc., 883 F. Supp. 2d 340, 346 (E.D.N.Y. 2012)
(quoting Sbarro, 982 F. Supp. at 261).
integrated employer,” courts consider: (1) interrelation of operations, (2) centralized control of labor relations, (3)
common management, and (4) common ownership or financial control. Juarez v. 449 Rest., Inc., 29 F. Supp. 3d
363, 367 (S.D.N.Y. 2014).
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In considering Plaintiff’s motion, “the court does not resolve factual disputes, decide
substantive issues going to the ultimate merits, or make credibility determinations.” Lynch v.
United Servs. Auto. Ass’n., 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007). It merely “examines the
pleadings and affidavits to determine whether the named plaintiffs and putative class members
are similarly situated.” McGlone, 867 F. Supp. 2d at 442 (citations omitted). If the Court finds
that they are, it will conditionally certify the class and order that notice be sent to potential class
members. Id.
B. Discussion
Plaintiff seeks to conditionally certify a collective that spans all non-exempt tipped
employees, including bartenders, barbacks, waiters, runners, bussers, and delivery persons,
employed at each of the four Schnipper’s Quality Kitchen locations spanning a six year time
period. Compl. ¶ 16; Memorandum of Law in Support of Plaintiff’s Motion for Conditional
Collective Certification (“Pl.’s Mem.”) (Doc. 38) at 11.
Defendants argue that Plaintiff has not met their burden of demonstrating that Plaintiff
and potential opt-in plaintiffs were victims of a common policy or plan that violated the law.
They claim that Plaintiff has merely proffered “vague, unsupported assertions” and has failed to
provide “concrete facts” showing a collective action is warranted. Defendant’s Memorandum of
Law in Opposition to Plaintiff’s Motion for Conditional Collective Certification (“Def.’s Mem.”)
(Doc. 50) at 6.
1.
Similarity among Delivery Workers
The Court finds that Alvarez’s declaration provides the modest factual showing required
to certify a collective action that includes delivery persons. Alvarez asserts, based on his own
experiences and conversations with co-workers, that “all non-managerial tipped employees
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employed by Defendants were subject to the same wage and hour policies.” Alvarez Decl. ¶ 3.
Further, in 2013, when Defendants informed Alvarez that he had not been receiving appropriate
compensation and offered him back pay, Alvarez recalls that Defendants said that he “and all
other delivery persons employed at all Schnippers locations” had been affected in the same way.
Id. ¶ 6.
With respect to tip notices, Alvarez alleges that based on his observations and
conversations, he and other employees at Schnipper’s did not receive proper tip notices until
August 2014. Id. ¶ 7. Alvarez provides specific examples of nontipped tasks he was required to
perform, including delivering food ingredients, delivering restaurant supplies, and helping
prepare food in the kitchen. Id. ¶ 8. Alvarez also mentions five colleagues who he observed
engaging in nontipped tasks or discussed nontipped tasks with, and estimates that he and tipped
employees spent at least twenty percent of their time devoted to nontipped tasks. Id.
Alvarez also asserts that he was required to use his personal bicycle for work and was not
reimbursed for the costs of maintaining or repairing the bicycle. Id. ¶ 9. Alvarez states that he
observed other delivery workers using their own personal bicycles without appropriate
compensation. Id. He further details a conversation he had with a delivery worker about “the
cost of maintaining our bikes” and an incident involving another delivery worker who had to pay
out of pocket to replace his bicycle. Id. ¶¶ 11–12.
Finally, with respect to Plaintiff’s argument that employees at all four Schnipper’s
restaurants were treated similarly, Alvarez alleges that he has worked at all four locations
himself. Id. ¶¶ 2, 8. Alvarez also stated that he “regularly observed and spoke with” other
employees who were located at each of the four Schnipper’s locations. Id. ¶ 3. When
Defendants informed Alvarez that they owed him some additional compensation in 2013, they
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informed Alvarez that he “and all other delivery persons employed at all Schnipper’s locations
did not receive compensation to which we were entitled.” Id. ¶ 6 (emphasis added).
Plaintiff puts forward additional evidence that the Schnipper’s restaurants operated as a
single integrated enterprise. The four locations are owned by the individual Defendants and
share the same logo and trade name. See Declaration of C.K. Lee in Support of Plaintiff’s
Motion for Conditional Class Certification (“Lee Decl.”) (Doc. 38) Exs. B–C. The restaurants
are all advertised jointly on the same website, www.schnippers.com, and Facebook, Twitter, and
Instagram accounts. Id. Exs. B, G. Hiring for the four restaurants is centrally managed, and
there is a single employee handbook for all of the locations. Id. Exs. E–F. The restaurants all
offer substantially the same food items, described in the same way. For example, each restaurant
offers a veggie burger with “baby arugula, plum tomatoes, red onion, [and] Schnipper sauce on a
whole wheat bun” and a green chile cheeseburger with a “special cheese blend, house-roasted
poblanos, [and] Schnipper Sauce.” Id. Ex. D.
These allegations meet the “minimum level of detail” to justify certification. See Reyes v.
Nidaja, LLC, No. 14 Civ. 9812 (RWS), 2015 WL 4622587, at *3 (S.D.N.Y. Aug. 3, 2015)
(noting the “consensus” in this district that “where a plaintiff bases an assertion of a common
policy on observations of coworkers or conversations with them, he must provide a minimum
level of detail regarding the contents of those conversations or observations”); see also IglesiasMendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367 (S.D.N.Y. 2007) (noting that a court need
not consider more than “pleadings and affidavits” when considering a motion for conditional
certification). Alvarez’s assertions based on his general conversations with coworkers,
supported by specific recollections and observations, provide an “identifiable factual nexus
which binds the named plaintiff[] and potential class members together as victims of a particular
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alleged discrimination,” that is in violation of the FLSA and NYLL. Sbarro, 982 F. Supp. at 261
(quoting Heagney v. European Am. Bank, 122 F.R.D. 125, 127 (E.D.N.Y. 1988)).
Defendants primarily make two arguments in opposing certification. First, they argue
that Plaintiffs must make a more detailed showing. But courts in this district “routinely certif[y]
conditional collective actions based on the plaintiff’s affidavit declaring they have personal
knowledge that other coworkers were subjected to similar employer practices.” Guo Qing Wang
v. H.B. Rest. Grp., Inc., No. 14 Civ. 813 (CM), 2014 WL 5055813, at *4 (S.D.N.Y. Oct. 7, 2014)
(collecting cases, and certifying collective based on single plaintiff’s personal knowledge based
on “his observations and his conversations with his coworkers”); see also Ramos v. Platt, No. 13
Civ. 8957 (GHW), 2014 WL 3639194, at *2 (S.D.N.Y. July 23, 2014) (“[C]ontrary to
Defendants’ arguments, conditional certification may be granted on the basis of the complaint
and the plaintiff’s own affidavits.”); Hernandez v. Bare Burger Dio Inc., No. 12 Civ. 7794
(RWS), 2013 WL 3199292, at *3 (S.D.N.Y. June 25, 2013) (collecting cases to support
proposition that “courts in this circuit have routinely granted conditional collective certification
based solely on the personal observations of one plaintiff’s affidavit”). Furthermore, as noted
above, Alvarez’s affidavit goes beyond simply stating that he observed other employees being
treated similarly with respect to tip credit notice and nontipped activities. Alvarez offers both
general assertions that he and other non-exempt tipped employees were treated similarly and
details specific interactions and conversations that supported his own observations. E.g., Alvarez
Decl. ¶ 12 (alleging that a delivery person who worked at two Schnipper’s locations had his
personal bicycle stolen from the basement of the Schnipper’s Times Square location and had to
pay out of pocket for a new bicycle to continue working for Defendants).
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Second, Defendants argue that Alvarez is incorrect on a number of factual points:
According to Defendants at Schnipper’s Financial District, all employees, including delivery
workers, are paid full minimum wage. Def.’s Mem. at 12. Defendants also point to their
employee handbook, which states that delivery workers are not required to use a bicycle to
perform delivery work, and affidavits asserting that tipped delivery persons were not required to
perform nontipped activities. Id. at 14–15, 16. These issues, however, go to the merits of the
underlying FLSA action. “At this procedural stage, the court does not resolve factual disputes,
decide substantive issues going to the ultimate merits, or make credibility determinations.
Indeed, a court should not weigh the merits of the underlying claims in determining whether
potential opt-in plaintiffs may be similarly situated.” Lynch v. United Servs. Auto. Ass’n, 491 F.
Supp. 2d 357, 368 (S.D.N.Y. 2007) (internal citations omitted). Therefore, Defendants’
arguments “do not present a basis to deny certification.” Santiago v. Tequila Gastropub LLC,
No. 16 Civ. 7499, 2017 WL 1283890, at *1 (S.D.N.Y. Apr. 5, 2017). Of course, if, after
discovery, it becomes clear that certain opt-in plaintiffs are not similarly situated, “defendants
may move for decertification at that time.” Sanchez v. Gansevoort Mgmt. Grp., Inc., No. 12 Civ.
75 (KBF), 2013 WL 208909, at *2 (S.D.N.Y. Jan. 10, 2013).
2. Similarity between Delivery Workers and Other Tipped Employees
With respect to Plaintiff’s allegations about other nontipped employees, “[i]n the Second
Circuit, courts routinely find employees similarly situated ‘despite not occupying the same
positions or performing the same job functions and in the same locations, provided that they are
subject to a common unlawful policy or practice.’” Guaman v. 5 M Corp., No. 13 Civ. 3820
(LGS), 2013 WL 5745905, at *4 (S.D.N.Y. Oct. 23, 2013) (quoting Summa v. Hofstra Univ., 715
F. Supp. 2d 378, 390 (E.D.N.Y. 2010)). Plaintiff must show some “demonstra[ble] similarity
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among the individual situations, . . . some identifiable factual nexus which binds the named
plaintiffs and potential class members together . . . .” Colozzi v. St. Joseph’s Hospital Health
Ctr., 595 F. Supp. 2d 200, 207 (N.D.N.Y. 2009) (quoting Heagney, 122 F.R.D. at 127).
Plaintiff’s allegations with respect to non-delivery workers are sparse. Plaintiff affirms
that he often had conversations with three co-workers who were servers at various Schnipper’s
locations and that from those conversations, he “know[s] that all non-managerial tipped
employees employed by Defendants were subject to the same wage and hour policies.” Alvarez
Aff. ¶ 3. These unsupported assertions and conclusory allegations are insufficient to
conditionally certify a class. See, e.g., She Jian Guo v. Tommy’s Sushi Inc., No. 14 Civ. 3964
(PAE), 2014 WL 5314822, at *3–4 (S.D.N.Y. Oct. 16, 2014) (certifying collective of delivery
workers only, because plaintiff provided only “vague, conclusory, and unsupported assertions”
about other types of employees). Similarly, Plaintiff’s allegations with respect to other
employees’ nontipped work requirements are unavailing. Plaintiff recalls that he heard one
server “frequently complain” about nontipped work. Alvarez Aff. ¶ 8. He then states that he
observed two servers “engaging in extensive cleaning and prep work that took at least 20% of
their workday.” Id. However, Plaintiff does not allege how he was able to ascertain that all
servers regularly spent over twenty percent of their time on nontipped work, especially since he
was often away from the restaurant delivering food, ingredients, or supplies. See id. ¶ 2.
Therefore, Plaintiffs’ motion for conditional certification is granted, but given the
information presently before the Court, the class shall only include delivery workers.
III. Time Period
Plaintiff seeks to conditionally certify a collective action dating back six years, because
Plaintiff has brought both FLSA and NYLL claims before the Court. Some courts in this Circuit
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routinely allow parties to list a six year time period on collective action notices when a plaintiff
presents claims under both the FLSA and the NYLL, which has a six-year statute of limitations.
See Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 410–11 (S.D.N.Y. 2012). However, three
years is the maximum time period to join FLSA collective actions, and no New York state class
action has been certified. “It would be confusing to employees who are ineligible for the FLSA
opt-in class to receive the opt-in notice, which does not relate to any state law claims.”
Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 668 (S.D.N.Y. 2013).
Plaintiff additionally seeks equitable tolling of the relevant statutes of limitation from the
beginning of the time period in which the parties began to negotiate through the S.D.N.Y
mediation program through the time Plaintiff is able to send notice to potential opt-in plaintiffs.
Pl.’s Mem. at 24–25. Equitable tolling is only appropriate “in rare and exceptional
circumstances, where a plaintiff has been prevented in some extraordinary way from exercising
his rights.” Garcia v. Chipotle Mexican Grill, Inc., No. 16 Civ. 601 (ER), 2016 WL 6561302, at
*10 (S.D.N.Y. Nov. 4, 2016) (quoting Vasto v. Credico (USA) LLC, No. 15 Civ. 9298 (PAE),
2106 WL 2658172, at *16 (S.D.N.Y. May 5, 2016)). The Court does not find that this case
presents any such circumstances. Therefore, the appropriate time period listed on the notice is a
period of time dating back three years prior to the filing of the Complaint. See id. at *9 (noting
that keying notice to a three year period prior to the filing of the complaint is appropriate, as
challenges to the timeliness of individual plaintiffs’ actions can be entertained at a later date). 2
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It is for this reason that Defendants’ arguments about the release signed by Plaintiff in December 2013 do not
defeat conditional certification of a collective action dating back three years prior to the filing of the Complaint.
Plaintiff is not prohibited from bringing an FLSA action for violations after the date he signed the settlement in
December 2013. See Escamilla v. Uncle Paul’s Pizza & Cafe, 16 Civ. 6305 (ALC) (KHP), Doc. 58 at *11
(S.D.N.Y. May 18, 2017) (citing Alleyne v. Time Moving & Storage Inc., 264 F.R.D. 41, 50 (E.D.N.Y. 2010)).
Assuming arguendo that the release prohibits Plaintiff from recovering for wage and hour violations prior to
December 2013, this does not create a dissimilarity that would defeat conditional certification, because FLSA
collective actions generally involve employees who have claims that are valid for varying periods of time. Id. at
*11–12.
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IV. Form and Content of Proposed Notice
The next issue involves the form and method of distribution of the court-authorized
notice to be sent to the potential opt-in class of similarly-situated Schnipper’s employees. “By
monitoring preparation and distribution of the notice, a court can ensure that it is timely,
accurate, and informative. Both the parties and the court benefit from settling disputes about the
content of the notice before it is distributed.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,
172 (1989). “[T]he district court has discretion regarding the form and content of the notice.” In
re Penthouse Exec. Club Comp. Litig., No. 10 Civ. 1145 (NRB), 2010 WL 4340255, at *5
(S.D.N.Y. Oct. 27, 2010) (citation omitted).
Plaintiff has submitted a proposed notice to potential opt-in plaintiffs. Defendant has
raised several objections to the notice. The parties are instructed to meet and confer and submit a
joint proposed notice within two weeks of the entry of this Order. The parties are also instructed
to discuss the best methods to be used to provide current employees of Defendants notice of the
lawsuit, including by posting a notice at the four Schnipper’s locations or by enclosing notice
within a pay envelope. If the parties fail to agree, they are instructed to submit a joint letter
explaining the remaining differences. See, e.g., id. (instructing the parties to meet and confer
regarding the proposed notice).
V. Contact Information
Plaintiff additionally seeks an order directing Defendants to produce the “names, social
security numbers, titles, compensation rates, dates of employment, last known mailing addresses,
email addresses, and all known telephone numbers” of potential opt-in plaintiffs. Pl.’s Mem. at
23. Defendants argue that this request is overbroad, and that Defendants should only be required
to provide names and addresses of potential opt-in plaintiffs. “Courts in this District commonly
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grant requests for the production of names, mailing addresses, email addresses, telephone
numbers, and dates of employment in connection with the conditional certification of a[n] FLSA
collective action.” Benavides v. Serenity Spa NY Inc,, 166 F. Supp. 3d 474, 488 (S.D.N.Y. 2016)
(citing Martin v. Sprint/United Mgmt. Co., No. 15 Civ. 5237 (PAE), 2016 WL 30334, at *19–20
(S.D.N.Y. Jan. 4, 2016)). The Court will therefore grant Plaintiff’s motion with respect to
names, titles, compensation rates, dates of employment, mailing addresses, email addresses, and
telephone numbers. However, Plaintiff has not yet demonstrated the need for the productive of
“such sensitive information” as employees’ social security numbers. Id. at 489; Garcia, 2016
WL 6561302, at *9. Plaintiff may renew this request if Plaintiff is unable to effectuate notice on
potential opt-in plaintiffs with the information that is produced by Defendants.
VI. Conclusion
For the reasons stated above, it is hereby ORDERED that:
(1) The Court grants conditional certification of the FLSA claim as a representative
collective action pursuant to 29 U.S.C. § 216(b) on behalf of all delivery persons
employed by Defendants at each of their four restaurants located in New York City
for the three-year period prior to the filing of the Complaint (collectively, the
“Covered Employees”);
(2) The Court grants approval of the distribution of the notice of this FLSA Action to
Covered Employees, including a consent form (or opt-in form) as authorized by the
FLSA;
(3) Within two weeks of the filing of this Order, the parties are to submit a joint proposed
FLSA notice;
(4) Within ten days of the filing of this Order, Defendants are to produce in Excel format
the names, titles, compensation rates, dates of employment, last known mailing
addresses, known email addresses, and all known telephone numbers of the Covered
Employees;
(5) The Court denies Plaintiff’s motion for equitable tolling of the FLSA statute of
limitations until such time that Plaintiff is able to send notice to potential opt-in
plaintiffs; and
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