Ruiz v. Truffa Pizzeria & Wine Room Corp. et al

Filing 35

OPINION AND ORDER re: 23 FIRST MOTION to Certify Class filed by Sandy Ruiz. For the foregoing reasons, Plaintiff's motion for conditional collective action certification is GRANTED IN PART and DENIED IN PART in accordance with the conclusions detailed in this Opinion and Order. It is hereby ORDERED that: Plaintiff shall submit a revised notice, in accordance with this Opinion and Order, to Defendants within seven (7) days of this Order. Defendants shall produce to Plai ntiff, within fourteen (14) days from the entry of this Order, the names, last known mailing address, alternate address, telephone numbers, and dates of employment of all non-managerial restaurant workers who were employed at Cocina Chente at any p oint in the three-year period prior to the filing of this action. Plaintiff shall distribute the revised notice to putative collective action members within fourteen (14) days of receiving Defendants' production. Defendants shall post the noti ce at Cocina Chente in a location clearly visible to potential opt-in plaintiffs. Plaintiff shall provide a list of all opt-in plaintiffs to Defendants within 14 days of the conclusion of the 60-day opt-in period. This Opinion and Order is signe d and entered as of February 15, 2021, and has been emailed to the parties on that date. It will be posted on the public docket on February 16, 2021. The Clerk of Court is respectfully directed to close Dkt. No. 23. SO ORDERED. (Signed by Judge Lewis J. Liman on 2/15/2021) (mml)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
SANDY RUIZ, on behalf of himself and all others
:
similarly situated,
:
:
Plaintiffs,
:
:
-v:
:
TRUFFA PIZZERIA & WINE ROOM CORP. d/b/a
:
COCINA CHENTE MEXICAN CUISINE, et al.,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X

2/15/2021

20-cv-8645 (LJL)
OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:
Plaintiff Sandy Ruiz (“Plaintiff” or “Ruiz”) moves for conditional certification of a
collective action under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”). Dkt.
No. 23. For the following reasons, the Court: (1) grants the motion for conditional certification;
(2) approves the proposed court-facilitated notice to the collective, with the additional language
requested by the Court; and (3) grants in part and denies in part Plaintiff’s motion for discovery
of the contact information of the collective.
BACKGROUND
Plaintiff was employed from or about July 24, 2017 until May 1, 2020, as a cook at
Cocina Chente Mexican Cuisine (“Cocina Chente”), a Mexican restaurant run by Defendants
Truffa Pizzeria & Wine Room Corp. d/b/a Cocina Chente, Moises Lopez Sr. (“Lopez Sr.”),
Roma Lopez (“Roma Lopez”), and Juan Rosario (“Rosario”) (collectively, “Defendants”). He
alleges that throughout the majority of his employment with Defendants, he was regularly
scheduled to work more than 40 hours each week without a meal break and between five and six
days per week. Dkt. No. 1 (“Compl.”) ¶¶ 41-42, 44. He also alleges that he was paid a flat

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weekly salary that was not inclusive of overtime and that was always paid in cash. Id. ¶¶ 45-47.
He also alleges that he was often asked to perform duties off the clock, before and after his
scheduled work shift, that Defendants never discussed overtime compensation or overtime work
with him, and that he never received any written record of his regular and/or overtime hours
worked. Id. ¶¶ 52-54.
On October 16, 2020, he brought this action asserting claims on behalf of himself and all
others similarly situated to recover unpaid overtime compensation under the FLSA and the New
York Labor Law (“NYLL”). He asserts four causes of action: (1) failure to pay overtime
compensation in violation of FLSA; (2) failure to pay overtime compensation in violation of
NYLL; (3) failure to provide annual wage notices in violation of NYLL; and (4) failure to
provide wage statements in violation of NYLL. Id. ¶¶ 59-77.
Ruiz brings the action on behalf of himself and “approximately 25 similarly situated
current and former cooks, food prep workers, dishwashers, servers and bartenders” who have
worked for Cocina Chente in the three-year period prior to the filing of the complaint (the
“FLSA Collective”). Id. ¶¶ 1, 31-32. He alleges that members of the FLSA Collective were
“victims of Defendants’ common policy and practices that have violated their rights under the
FLSA by, inter alia, willfully denying them overtime wages.” Id. ¶ 32. He further alleges that
“[a]s part of their regular business practice, Defendants . . . engag[ed] in a pattern and/or policy .
. . [that] includ[ed], inter alia, . . . failing to pay employees the applicable overtime rate for all
time worked in excess of forty (40) hours per week” and engaged in that conduct “pursuant to a
corporate policy of minimizing costs and denying employees legally required compensation.”
Id. ¶¶ 33-34.

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On January 1, 2021, he filed the instant motion under 29 U.S.C. § 216(b) seeking
(1) conditional certification of a FLSA collective action; (2) court-facilitated notice of the FLSA
action to covered employees; (3) approval of the proposed notice of the action and consent form;
(4) production of certain information with respect to the covered employees; and (5) posting of
the notice, along with the consent forms, in conspicuous locations at Cocina Chente. Dkt. No.
23. The motion is directed to cooks, food preparers, and dishwashers as members of the FLSA
collective. Dkt. No. 26 at 1 n.1, 5. The motion is supported by a declaration of Ruiz under
penalty of perjury. Ruiz declares that Defendants dictated his work schedule and the schedules
of other employees at Cocina Chente and that he is “almost certain that every week” he worked
for Defendants, he worked more than 40 hours per week, usually working nine hours a day
without a lunch break, and did not receive overtime pay. Dkt. No. 25 ¶¶ 2-10. Moreover,
throughout Ruiz’s employment, “Defendants did not have a time clock machine” and Ruiz “was
not required to clock a machine when [he] arrived and left work or sign a notebook.” Id. ¶ 14.
Ruiz also swears that he would frequently discuss with the other restaurant workers the
fact that they were not paid overtime. Id. ¶ 16. He offers specific information: A cook named
Claston “complained to [Ruiz] that he was not being paid correctly multiple times. . . . [i.e.,] that
he was working long hours but not getting paid overtime.” Id. ¶ 17. Claston worked at Cocina
Chente from 2019 through 2020, six days per week, from 2:00 p.m. until approximately 11:30
p.m. Id. ¶¶ 18-19. Alexis, a food preparer and cook at Cocina Chente, complained to Ruiz
numerous times that he was not being paid correctly. He worked six days per week from 2:00
p.m. to approximately 11:00 p.m. and was paid only $600 per week. Id. ¶¶ 20-21. Ruiz also
declares that dishwashers at Cocina Chente were not paid correctly. For example, Elido Cruz
(“Cruz”) worked at Cocina Chente from 2019 through 2020 and complained to Ruiz that he was

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working long hours without being paid overtime. He worked six days per week from 2:00 p.m.
to approximately 11:30 p.m. but was paid only $540 per week. Id. ¶¶ 22-23. Jose Perez
(“Perez”) worked as a dishwasher from 2017 to 2018 at Cocina Chente and discussed with Ruiz
that he was not being paid correctly and should be getting overtime. Id. ¶ 24. Like Cruz, he
worked six days per week from 2:00 p.m. to approximately 11:30 p.m. but was paid only $540
per week. Id. All of these individuals, like Ruiz, were paid only in cash. Id. ¶ 26.
Defendants submit four declarations in opposition to the motion for conditional
certification. See Dkt. Nos. 30-33.1 Lopez Sr. declares under penalty of perjury that he has
worked at Cocina Chente since 2017 and that there were only two cooks in the restaurant; he was
one of the cooks and Ruiz was the other cook. Dkt. No. 31 ¶¶ 4-6. He states that he and Ruiz
performed different duties, work on different schedules, and received different rates of pay. Id.
¶ 7. A second declaration was submitted by Roma Lopez, who has been the manager of Cocina
Chente since 2017. Dkt No. 32 ¶ 3. Roma Lopez also declares that there were only two cooks at
the restaurant—Lopez Sr. and Ruiz—and that there was an additional part-time line-cook—
Alexis—and several dishwashers in the kitchen. Id. ¶¶ 4-5, 9. The employees “perform different
duties in different areas of the restaurant” and “worked on different schedules based on their job
duties and availabilities and received different rates of pay.” Id. at ¶¶ 4, 11. Roma Lopez states
that Claston was a dishwasher until he moved to North Carolina (as opposed to Ruiz’s contention
that he was a cook), Cruz was also a dishwasher, and Alexis was a part-time dishwasher and
part-time line-cook (as opposed to Ruiz’s contention that he was a cook). Id. ¶¶ 7-9. Roma
Lopez states that Alexis never worked as a cook and that he worked approximately five days per

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The fourth declaration was submitted by Defendants’ counsel to introduce the three substantive
declarations. Dkt. No. 30.
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week: two days as a dishwasher and three days as the part-time line-cook. Id. ¶ 9. Roma Lopez
states that Cruz normally worked five days per week from 2:00 p.m. until 11:00 p.m. with a onehour break and was paid $120 per day for the weekend shift. Id. ¶ 13.
The third declaration was submitted by Cruz, who declares under penalty of perjury that
he worked as a dishwasher at Cocina Chente from 2019 to 2020 before he moved to the
Dominican Republic. Dkt. No. 33 ¶¶ 4-5. He states—in the same language as used in the Roma
Lopez declaration—that he worked five days per week from 2:00 p.m. to 11:00 p.m. with a
one-hour break. Id. ¶ 9. He denies having complaints about his employment and expresses
concern that Ruiz is “planning to hurt” his “friend” Lopez Sr. Id. ¶¶ 14-15. He states that he
performed completely different tasks than Ruiz, who was a cook, and he worked on a different
schedule. Id. ¶ 11.
DISCUSSION
Section 216(b) of the FLSA permits an employee aggrieved by a violation of the statute
to maintain an action against any employer “for and in behalf of himself or themselves and other
employees similarly situated.” 29 U.S.C. § 216(b). It follows from that language that district
courts have the authority to certify a FLSA lawsuit for collective action on a conditional basis.
“Section 216(b)’s affirmative permission for employees to proceed on behalf of those similarly
situated must grant the court the requisite procedural authority to manage the process of joining
multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory
commands or the provisions of the Federal Rules of Civil Procedure.” Hoffman-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1989); see also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66,
75 n.1 (2013) (characterizing section 216(b) as a “joinder process”). “[D]istrict courts have
discretion, in appropriate cases, to implement [Section 216(b)] by facilitating notice to potential
plaintiffs.” Hoffman-La Roche, 493 U.S. at 169.
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The Second Circuit has endorsed a two-step method to determine whether a case should
proceed as a collective action under FLSA. See Myers v. Hertz Corp., 624 F.3d 537, 554 (2d
Cir. 2010). In the first step, the court makes “an initial determination to send notice to potential
opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs.” Id. at 555. Plaintiffs
need only “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)). Mere “unsupported assertions” are not
sufficient to pass the first step, but it “should remain a low standard of proof because the purpose
of the first stage is to merely to determine whether ‘similarly situated’ plaintiffs do in fact exist.”
Id. (quoting Dybach v. Fla. Dep’t of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991)). At the
second step, “the district 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.” Id. The “similarly situated” analysis is “quite
distinct” from “the much higher threshold of demonstrating that common questions of law and
fact will ‘predominate’ for Rule 23 purposes.” Id. at 556.
Plaintiff’s burden at the conditional certification stage is “minimal.” Amador v. Morgan
Stanley & Co. LLC, 2013 WL 494020, at *4 (S.D.N.Y. Feb. 7, 2013). “Plaintiffs can meet this
burden by showing that ‘there are other employees who are similarly situated with respect to
their job requirements and with regard to their pay provisions.’” Fraticelli v. MSG Holdings,
L.P., 2014 WL 1807105, at *1 (S.D.N.Y. May 7, 2014) (quoting Hertz, 624 F.3d at 555).
However, “[w]hile plaintiff’s burden at this stage is modest, it is not non-existent.” Khan v.
Airport Mgmt. Servs. LLC, 2011 WL 5597371, at *5 (S.D.N.Y. Nov. 16, 2011).

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If this Court determines that “similarly situated” employees exist, it will conditionally
certify the collective and order that appropriate notice be given to members of the FLSA
collective to afford them the opportunity to opt into the action. See Cunningham v. Elec. Data
Sys. Corp., 2010 WL 5076703, at *5 (S.D.N.Y. Dec. 13, 2010); see also Lynch v. U.S. Auto.
Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007) (“Once notice is accomplished, the action
proceeds as a collective action throughout the discovery process.”). At the second stage, after
discovery is completed, this 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,” and “[t]he action may be ‘decertified’ if the
record reveals that they are not, and the opt-in plaintiffs’ claims may be dismissed without
prejudice.” Hertz, 624 F.3d at 555.
A. Ruiz Has Made the Modest Showing Necessary for Conditional Certification
Ruiz has made the “modest” showing necessary to establish that he and the other kitchen
workers were similarly situated. Cocina Chente was and is, by all accounts, a small enterprise
with a limited number of employees, some of whom performed multiple duties and all of whom
were paid in cash. Plaintiff has put forward evidence, in the form of a declaration, that names
specific individuals who, regardless of the particular function that employee had in the kitchen,
were asked to work more than eight hours a day and more than 40 hours per week without being
paid overtime. Ruiz has identified cooks, food preparers, and dishwashers all of whom—like
Ruiz himself—worked more than eight hours a day and more than forty hours per week without
overtime. He has testified to his conversations with and observations of coworkers in a small
shop. See Mendoza v. Ashiya Sushi 5, Inc., 2013 WL 5211839, at *5-6 (S.D.N.Y. Nov. 25,
2013) (granting conditional certification based on affidavit of plaintiff’s observations and
conversations with others and observing “‘courts regularly rely on . . . hearsay statements in
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determining the propriety of sending notice’ in FLSA conditional collective action
certifications”) (quoting Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561, 563 (S.D.N.Y.
2012)); Liping Dai v. Lychee House, Inc., 2018 WL 4360772, at *8 (S.D.N.Y. Aug. 29, 2018)
(holding that an attestation by plaintiffs of their observations and coworkers’ complaints is
sufficient to support conditional certification) (citing cases). Defendants uniformly paid the
kitchen workers a flat rate and did not have a “method of tracking their employees’ time . . .
suggesting they did not have a means of calculating overtime for anyone.” Ramos v. DNC Food
Serv. Corp., 2020 WL 2832776, at *6 (S.D.N.Y. June 1, 2020). It therefore is reasonable to
believe that all kitchen workers were similarly situated. See id.
Defendants have three responses. None is successful at this stage. First, Defendants note
repeatedly that Plaintiff’s evidence comes in the form only of a declaration from Plaintiff himself
and that it is “absent verification from the individuals.” Dkt. No. 29 at 8. Defendants thus assert
that it is “self-serving and unreliable.” Id. However, “[p]laintiffs may satisfy [their] requirement
by relying on their own pleadings, affidavits, declarations, or the affidavits and declarations of
other potential class members.” Ramos, 2020 WL 2832776, at *2 (quoting Hallisey v. Am,
Online, Inc., 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008)); see also Mendoza, 2013 WL
5211839, at *5-6 (granting conditional certification based on declaration of plaintiff and
records). The role of the court at this stage is “not to determine the litigiousness of putative
members of the collective action.” Mendoza, 2013 WL 5211839, at *6. “The requirement
Defendants propose, if adopted, would obviate the advantages of § 216(b) notice, as it would
require FLSA plaintiffs to locate and identify additional plaintiffs in advance of certification.”
Id. Thus, the fact that none of Plaintiff’s co-workers have yet joined the lawsuit is not fatal;
current employees may not have joined for any number of reasons, including that they fear

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retaliation or are unaware of their rights. See, e.g., Nahar v. Dozen Bagels Co. Inc., 2015 WL
6207076, at *5 (S.D.N.Y. Oct. 20, 2015).
Second, Defendants argue that Ruiz’s declaration is “apparently false and misleading.”
Dkt. No. 29 at 8. Ruiz says, for example, that Cruz worked six days per week for nine and a half
hours per day, while Cruz now says he worked five days per week for nine hours a day with a
one-hour break. Ruiz says that Claston was also a cook while Defendants say he was only a
dishwasher. Alexis is described by Ruiz as a food preparer, while Defendants describe her as a
part-time line-cook. But, there are some reasons to doubt Cruz’s declaration—he states that he is
a friend of Defendants and is concerned that they will be hurt. Defendants also exaggerate the
differences between Ruiz’s account and their own. Those minor factual inconsistencies do not
defeat class certification. See Liping Dai, 2018 WL 4360772, at *8. Tellingly, Defendants do
not respond to the facts that Claston and Alexis were statutorily entitled to overtime pay but did
not receive it. In any event, “[a]t this stage, the Court ought not ‘resolve factual disputes, decide
substantive issues going to the ultimate merits, or make credibility determinations.’”
Shillingford v. Astra Home Care, Inc., 293 F. Supp. 3d 401, 407 (S.D.N.Y. 2018) (quoting
Hypolite v. Health Care Servs. of N.Y., Inc., 256 F. Supp. 3d 485, 489 (S.D.N.Y. 2017)); see also
Lynch, 491 F. Supp. 2d at 368 (“Indeed, a court should not weigh the merits of the underlying
claims in determining whether potential opt-in plaintiffs may be similarly situated.”).
Third, Defendants argue that the kitchen workers performed different functions, on
different schedules, receiving different rates of pay. Dkt. No. 28 at 3, 8. The fact that different
employees performed different jobs, however, does not necessarily preclude them from being
considered “similarly situated” where “the fundamental allegation . . . is common to all the . . .
plaintiffs and dominates each of their claims.” Heagney v. European Am. Bank, 122 F.R.D. 125,

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127 (E.D.N.Y. 1988). “It is not necessary for the purposes of conditional certification that the
prospective class members all performed the same duties, or worked during the same time
periods, or worked at the same locations as the named plaintiffs . . . [a]s long as they 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.” Cano v. Four M Food
Corp., 2009 WL 5710143, at *7 (E.D.N.Y. Feb. 3, 2009) (granting conditional certification
where affidavits showed “an identifiable factual nexus linking the named plaintiffs with putative
collecti[ve] action members”). “[T]he type of ‘person-by-person fact-intensive inquiry [sought
by Defendants] is premature at the conditional certification stage and has been specifically
rejected by courts within this Circuit.’” Mongiove v. Nate’s Corp., 2016 WL 590460, at *5
(E.D.N.Y. Feb. 11, 2016) (quoting Amador v. Morgan Stanley & Co. LLC, 2013 WL 494020, at
*8 (S.D.N.Y. Feb. 7, 2013)). “[C]ommon job duties or common hourly wage rates are [not]
required for a collective action.” Id. at *5.
B. Notice
One a court determines that a named plaintiff has satisfied his or her burden for initial
certification of a collective action, the court may authorize issuance of a notice informing
potential additional plaintiffs of their opportunity to opt into the lawsuit. Lynch, 491 F. Supp .2d
at 367. The content of the notice is “left to the broad discretion of the trial court.” Fasanelli v.
Heartland Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y 2007). “When exercising its broad
discretion to craft appropriate notices in individual cases, [d]istrict [c]ourts consider the
overarching policies of the collective suit provisions.” Id.
Defendants make two objections to the proposed notice submitted by Plaintiff. First, they
argue that the notice and the FLSA collective action should be limited to persons who were
employed by them in the two years prior to the filing of the complaint, and not the three-year
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period prior to the filing of the complaint. Second, they argue that the notice should include
information about counsel’s fee arrangements. The Court approves the proposed notice with one
minor modification.
The proposed notice is directed to persons employed at Cocina Chente as a cook,
dishwasher, or food preparer (defined as “Kitchen Workers”) from October 16, 2017 through the
present. Dkt. No. 24, Ex. A. It states: “All Kitchen Workers who were employed by the
Defendants between October 16, 2017 and the present are conditionally part of the ‘Collective,’
or ‘Collective Action Members.’” Id. ¶ 2. Defendants note that the statute of limitations for
FLSA claims is two years from the violation except if the violation is willful. They claim that
the complaint does not support a claim that the violation is willful. In addition, the Court notes
that the statute of limitations as to any individual plaintiff stops running when either that plaintiff
is named as a party plaintiff in the complaint with a filed written consent or if his name did not
so appear, on the subsequent date on which such written consent is filed in court. 29 U.S.C.
§ 256; see Cortese v. Skanska Koch, Inc., 2021 WL 429971, at *13 (S.D.N.Y. Feb. 8, 2021).
The objection to the notice is not well-taken. Courts have conditionally certified classes
comprised of persons employed over the three-year period prior to the filing of a complaint
“[o]ut of an abundance of caution, and seeking to avoid any merits-based determinations” at an
early stage in the litigation. Fasanelli, 516 F. Supp. 2d at 323; see also Marcial v. New Hudson
Family Restaurant Inc., 2019 WL 1900336, at *8 & n.14 (S.D.N.Y. Apr. 29, 2019) (directing
that notice be provided to potential collective action members working for defendants during the
three years prior to the date of the filing of the action); Mongiove, 2016 WL 590460, at *6
(holding that notice should be sent to persons employed within three years of the date of the
filing of the complaint because the timeliness of each plaintiff’s action should be determined in a

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future proceeding). “Specific challenges to the timeliness of the claims of certain ‘opt-in’
plaintiffs or the named Plaintiff can be addressed after the completion of discovery during the
second phase of the collective action certification process.” Fasanelli, 516 F. Supp. 2d at 323.
The Court does believe, however, that one change should be made. The following words,
in substance, should be added to the Paragraph 2 of the notice: “Defendants take the position that
the statute of limitations for the Fair Labor Standards Act claims in this case is two years. The
Court may ultimately determine that you do not have a claim if you were not employed by
Defendants within the two-year period prior to the time you joined this lawsuit.”
The objection with respect to attorneys’ fees is also not well-taken. Defendants claim
that the current language of the notice “does not disclose the fee arrangement and does not
provide potential opt-ins with sufficient information regarding the [potential] attorney-client
relationship.” Dkt. No. 29 at 15. “Because the fee structure may impact on ‘opt-in’ Plaintiff’s
recovery, if any, notice of those agreements should be provided up front.” Fasanelli, 516 F.
Supp. 2d at 324; see also Huer Huang v. Shanghai City Corp, 2020 WL 5849099, at *18
(S.D.N.Y. Oct. 1, 2020); Mendoza, 2013 WL 5211839, at *8 (requiring disclosure of
contingency fee arrangement). However, the proposed notice does contain disclosure of the fee
arrangement. It states: “In the event that there is a recovery, the fee agreements entitle Plaintiff’s
counsel to apply for one-third of any settlement obtained or money judgment entered in favor of
all members of the class or the actual value of the time they spend on the case.” Dkt. No. 24
¶ 13. No more is required.
Plaintiff also asks that Defendants be required to post the notice at Cocina Chente in a
“conspicuous locations” or locations “clearly visible” to potential opt-in plaintiffs. Dkt. No. 23
¶ 5; Dkt. No. 26 at 9. Defendants do not object to this request and it is routine in this District.

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See Ramos, 2020 WL 2832776, at *10 (approving requirement that notice be posted at place of
employment).
C. Discovery
To facilitate notice, Plaintiff seeks production from Defendants of the following
information with respect to all members of the FLSA collective: names, last known mailing
address, alternate address, telephone numbers, social security numbers, and dates of
employment.
The Supreme Court has held that district courts have authority “to permit discovery of the
names and addresses” of potential members of the collective action. Hoffman-La Roche, 493
U.S. at 170. Thus, in furtherance of the general purposes of FLSA, “[c]ourts in this District
commonly 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
FLSA collective action.” Benavides v. Serenity Spa NY Inc., 166 F. Supp. 3d 474, 488 (S.D.N.Y.
2016) (quoting Martin v. Sprint/United Mgmt. Co., 2016 WL 30334, at *9-10 (S.D.N.Y. Jan. 4,
2016) (collecting cases)); see also Knox v. John Varvatos Enters. Inc., 282 F. Supp. 3d 644, 663
(S.D.N.Y. 2017) (same).
At this stage, however, Plaintiff has not made a sufficient showing to obtain social
security numbers. See Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 448
(S.D.N.Y. 2011) (“[C]ourts often decline to allow discovery of social security numbers due to
privacy concerns” but will do so upon a showing that “names and contact information are
insufficient to effectuate notice”); see also Martin, 2016 WL 30334, at *20 (holding that
plaintiffs had not demonstrated the necessity for obtaining social security numbers).
Accordingly, Plaintiff may obtain discovery from Defendants of all of the requested information
except for social security numbers.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for conditional collective action certification
is GRANTED IN PART and DENIED IN PART in accordance with the conclusions detailed in
this Opinion and Order. It is hereby ORDERED that:
•

Plaintiff shall submit a revised notice, in accordance with this Opinion and Order, to
Defendants within seven (7) days of this Order.

•

Defendants shall produce to Plaintiff, within fourteen (14) days from the entry of this
Order, the names, last known mailing address, alternate address, telephone numbers,
and dates of employment of all non-managerial restaurant workers who were
employed at Cocina Chente at any point in the three-year period prior to the filing of
this action.

•

Plaintiff shall distribute the revised notice to putative collective action members
within fourteen (14) days of receiving Defendants’ production. Defendants shall post
the notice at Cocina Chente in a location clearly visible to potential opt-in plaintiffs.

•

Plaintiff shall provide a list of all opt-in plaintiffs to Defendants within 14 days of the
conclusion of the 60-day opt-in period.

This Opinion and Order is signed and entered as of February 15, 2021, and has been
emailed to the parties on that date. It will be posted on the public docket on February 16, 2021.
The Clerk of Court is respectfully directed to close Dkt. No. 23.

SO ORDERED.

Dated: February 15, 2021
New York, New York

__________________________________
LEWIS J. LIMAN
United States District Judge

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