Viriri v. White Plains Hospital Medical Center

Filing 40

OPINION & ORDER re: 28 MOTION to Certify Class Conditional Class Certification filed by Brian Viriri. For the foregoing reasons, Plaintiff's Motion is granted. Plaintiff's proposed collective action is conditionally cer tified pursuant to 29 U.S.C. § 216(b). The claims of the potential opt-in plaintiffs are tolled for the period between November 21, 2016 and the date of this Opinion & Order. The Proposed Notice is approved with the modifications discussed ab ove. Defendant shall provide to Plaintiff a computer- readable data file containing the names, last known mailing addresses, telephone numbers, Social Security numbers, work locations, and dates of employment of all potential opt-in plaintiffs. Def endant shall post the Proposed Notice (with the modifications discussed), along with the consent forms, in each of Defendant's locations where potential opt-in plaintiffs are employed. The Clerk of Court is respectfully directed to terminate the pending Motion. (Dkt. No. 28.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 6/8/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

BRIAN VIRIRI, on behalf of himself and
others similarly situated,
Plaintiff,
v.

No. 16-CV-2348 (KMK)
OPINION & ORDER

WHITE PLAINS HOSPITAL MEDICAL
CENTER,
Defendant.

Appearances:
Todd J. Krakower, Esq.
Erika Minerowicz, Esq.
Krakower DiChiara LLC
Park Ridge, NJ
Counsel for Plaintiff
Andrew L. Zwerling, Esq.
Salvatore Puccio, Esq.
Michael J. Keane, Jr., Esq.
Garfunkel Wild, P.C.
Great Neck, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Plaintiff Brian Viriri brings this Action against Defendant White Plains Hospital Medical
Center, individually and on behalf of others similarly situated, alleging that Defendant owes him
and others unpaid and overtime wages pursuant to the Fair Labor Standards Act (the “FLSA”),
29 U.S.C. § 201 et seq., the New York Minimum Wage Act, N.Y. Labor Law § 650 et seq., and
the supporting regulations of the New York State Department of Labor. (See Am. Compl. (Dkt.

No. 11).) Before the Court is Plaintiff’s Motion for Conditional Collective Certification. (See
Dkt. No. 28.) For the reasons to follow, the Motion is granted.
I. Background
A. Factual Background
The following facts are taken from the Amended Complaint and the supporting
declarations of Plaintiff.
Defendant is a domestic, not-for-profit corporation in Westchester County, New York,
that operates as a healthcare provider. (See Am. Compl. ¶¶ 8–9.) At all relevant times,
Defendant was and continues to be an employer engaged in commerce within the meaning of the
FLSA and the New York Minimum Wage Act. (See id. ¶ 13.) From 2009 until approximately
August 2013, Plaintiff was employed by Defendant as a registered nurse in the medical surgical
unit. (See id. ¶ 15; Decl. of Brian Viriri (“Viriri Decl.”) ¶ 1 (Dkt. No. 30).) Plaintiff also served
as a registered nurse in Defendant’s operating room from December 2014 until July 13, 2015.
(See Am. Compl. ¶ 15.)
While he worked in the medical surgical unit, Plaintiff and other nurses in the medical
surgical unit were compensated on an hourly basis. (See id. ¶ 33; Viriri Decl. ¶ 5.) Nurses were
regularly scheduled to work three to four 12-hour shifts per week. (See Am. Compl. ¶ 43; Viriri
Decl. ¶ 11.) Those shifts ran from either 7:00 AM to 7:15 PM, or from 7:00 PM to 7:15 AM.
(See Am. Compl. ¶ 42; Viriri Decl. ¶ 10.) Nurses were typically scheduled to work three 12hour shifts each week, but one week each month, they were required to work four 12-hour shifts.
(See Am. Compl. ¶¶ 44–45; Viriri Decl. ¶¶ 12–13.) Due to short staffing, however, each year,
Plaintiff worked six additional weeks with four 12-hour shifts. (See Am. Compl. ¶ 46.)

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Plaintiff alleges that although the nurses were paid on an hourly basis pursuant to the
predetermined work schedule, (see id. ¶ 38), they were required to arrive at least 15 minutes
before their scheduled start time, (see id. ¶ 48; Viriri Decl. ¶ 14), and were regularly required to
work one to two hours after their shift ended, (see Am. Compl. ¶ 52; Viriri Decl. ¶ 16). Plaintiff
and the other nurses were not allowed to leave work until they located the incoming nurse and
discussed each patient’s status with that nurse. (See Am. Compl. ¶ 54; Viriri Decl. ¶ 17.)
Although the nurses worked additional hours beyond the hours set forth in the schedule,
Defendant did not compensate Plaintiff and the other nurses for that time. (See Am. Compl.
¶ 56; Viriri Decl. ¶ 19.) Moreover, although the nurses regularly worked more than 40 hours per
week, (see Am. Compl. ¶ 57; Viriri Decl. ¶ 18), Defendant did not pay Plaintiff or the other
nurses one-and-a-half times their regular rate of pay for that overtime, (see Am. Compl. ¶ 62;
Viriri Decl. ¶ 20). Plaintiff alleges that Defendant’s failure to pay the nurses their statutory
wages was knowing. (See Am. Compl. ¶ 63.)
B. Procedural History
Plaintiff filed his Complaint on March 30, 2016. (See Dkt. No. 1.) After Defendant
sought leave to file a motion to dismiss, (see Dkt. No. 8), Plaintiff requested leave to file an
Amended Complaint, (see Dkt. No. 9). Leave was granted, (see Dkt. No. 10), and Plaintiff filed
his Amended Complaint on June 30, 2016, (see Dkt. No. 11). Defendant again sought leave to
file a motion to dismiss, (see Dkt. No. 12), but after a conference before the Court on September
21, 2016, (see Dkt. (minute entry for Sept. 21, 2016)), Defendant decided not to pursue the
motion, (see Dkt. No. 19). A case management order was thereafter entered. (See Dkt. No. 22.)
On October 19, 2016, Defendant filed its Answer. (See Dkt. No. 27.)

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On October 20, 2016, Plaintiff filed its Motion for Conditional Collective Certification,
seeking an order conditionally certifying its proposed FLSA collective action. (See Dkt. No. 28.)
In addition to conditional certification, Plaintiff requests that the Court approve the content and
manner of the notice, and that the Court equitably toll the statute of limitations for the class
members. (See Mem. of Law in Supp. of Pl.’s Mot. for Conditional Collective Certification
(“Pl.’s Mem.”) (Dkt. No. 31).) Defendant filed its opposition on November 14, 2016, (see Dkt.
No. 32), and Plaintiff filed his reply on November 21, 2016, (see Dkt. No. 33).
II. Discussion
A. FLSA Conditional Certification
1. Standard for Conditional Certification
The FLSA provides that an employee whose rights under the FLSA were violated may
file an action in any federal or state court of competent jurisdiction “for and in behalf of himself
or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Although the FLSA
does not require them to do so, “district courts have discretion, in appropriate cases, to
implement § 216(b) by facilitating notice to potential plaintiffs of the pendency of the action and
of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537, 554
(2d Cir. 2010) (alterations and internal quotation marks omitted).
The Second Circuit has endorsed “a two step-method of certification in an opt-in
collective action under the FLSA.” Amador v. Morgan Stanley & Co., No. 11-CV-4326, 2013
WL 494020, at *2 (S.D.N.Y. Feb. 7, 2013) (internal quotation marks omitted). First, the district
court must make “an initial determination and send notice to potential opt-in plaintiffs who may
be ‘similarly situated’ to the named plaintiffs with respect to whether a FLSA violation has
occurred.” Id. (some internal quotation marks omitted). “Once a court conditionally certifies a

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collective action, it may then facilitate notice to all of the putative class members by approving a
notice form.” Jenkins v. TJX Cos., 853 F. Supp. 2d 317, 320 (E.D.N.Y. 2012). After discovery
is completed, “if it appears that some or all members of a conditionally certified class are not
similarly situated,” a “defendant may move to challenge certification, at which point a court will
conduct a more searching factual inquiry as to whether the class members are truly similarly
situated.” Id. at 320–21.
This case comes before the Court at the first phase, which means Plaintiff 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 (internal quotation
marks omitted). Although this “modest factual showing” cannot “be satisfied simply by
unsupported assertions,” it remains 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 omitted). “Plaintiffs may satisfy this requirement by relying on their own
pleadings, affidavits, declarations, or the affidavits and declarations of other potential class
members.” Hallissey v. Am. Online, Inc., No. 99-CV-3785, 2008 WL 465112, at *1 (S.D.N.Y.
Feb. 19, 2008). Because “the court applies a fairly lenient standard,” courts “typically grant[]
conditional certification.” Malloy v. Richard Fleischman & Assocs. Inc., No. 09-CV-322, 2009
WL 1585979, at *2 (S.D.N.Y. June 3, 2009) (internal quotation marks omitted).
Importantly, at this stage, “a court should not weigh the merits of the underlying claims
in determining whether potential opt-in plaintiffs may be similarly situated.” Amador, 2013 WL
494020, at *3 (internal quotation marks omitted). “[A]ny factual variances that may exist
between the plaintiff and the putative class do not defeat conditional class certification,” Lynch v.
United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 369 (S.D.N.Y. 2007), and even if “dates of

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employment and hours worked are unique to each employee,” that “does not necessarily create
dissimilarity under the FLSA,” Hallissey, 2008 WL 465112, at *2.
2. Analysis
Plaintiff has moved for conditional certification only with respect to the FLSA claims,
and has not asked for any certification or other class recognition with respect to his claims under
state law. FLSA claims are governed by a two-year or three-year statute of limitations,
depending on whether the violations were willful, see 29 U.S.C. § 255(a), and in a collective
action suit, absent tolling, the statute of limitations continues to run for each potential plaintiff
until the date the individual files a consent to join the lawsuit, see Jackson v. Bloomberg, L.P.,
298 F.R.D. 152, 170 (S.D.N.Y. 2014). Thus, assuming Plaintiff is successful in his argument
that the statute of limitations for potential opt-in plaintiffs should be tolled as of the date the
Motion was filed, the class of potential opt-in plaintiffs would be all registered nurses working in
the medical surgical unit at Defendant from October 20, 2013 until October 20, 2016.
Defendant raises a number of arguments for why Plaintiff’s Motion should be denied.
The Court will address each in turn.
a. Conclusory Allegations
Defendant first argues that conditional certification is inappropriate because Plaintiff has
relied solely on conclusory allegations, based on his “observations” and “understandings,” an
approach that, Defendant contends, has been rejected in other cases in the Second Circuit. (See
Mem. of Law in Opp’n to Pl.’s Mot. for Conditional Collective Certification (“Def.’s Opp’n”) 7–
8 (Dkt. No. 32).)
In support his Motion, Plaintiff submitted a declaration restating much of the information
alleged in the Amended Complaint. (See Viriri Decl.) There, Plaintiff affirmed that “based on

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conversations with other registered nurses in the medical surgical unit as well as personal
observations,” he and the other nurses were not compensated for all hours worked and were not
paid overtime. (Id. ¶¶ 3–4.) Plaintiff specifically testified that, consistent with the allegations in
the Amended Complaint, all nurses in the medical surgical unit were assigned to work a
predetermined schedule each week, consisting of three to four 12-hour shifts, were required to
arrive early and stay late, but were compensated only for the hours listed on the predetermined
schedule. (See id. ¶¶ 10–18.) When Plaintiff submitted his reply papers, he appended a new
declaration that clarified that he had spoken with two other nurses, Alyssa Mahany and Kristina
Garcia, who both confirmed that they and other nurses were subjected to the same unlawful pay
practices alleged in the Amended Complaint and relayed in the first declaration. (See Reply
Decl. of Brian Viriri (“Viriri Reply Decl.”) ¶¶ 2–4 (Dkt. No. 34).)
Many of the cases cited by Defendant in support on this issue are inapposite. See, e.g.,
Romero v. H.B. Auto. Grp., Inc., No. 11-CV-386, 2012 WL 1514810, at *10 (S.D.N.Y. May 1,
2012) (denying certification where the plaintiff had access to the defendants’ pay records, but did
“not make any showing about a widespread failure to pay minimum wage based on [those] pay
records,” instead relying solely on “allegations made on knowledge and belief”); Khan v. Airport
Mgmt. Servs., LLC, No. 10-CV-7735, 2011 WL 5597371, at *4–5 (S.D.N.Y. Nov. 16, 2011)
(denying certification where, although the defendants did not contest that the plaintiff worked
more than 40 hours without overtime pay, the plaintiff had not provided anything beyond
conclusory allegations that other individuals in his position were improperly classified as
managers); Morales v. Plantworks, Inc., No. 05-CV-2349, 2006 WL 278154, at *2–3 (S.D.N.Y.
Feb. 2, 2006) (denying certification where the plaintiffs offered no sworn declarations and made
only the conclusory allegations in the complaint that there were over 20 current and former

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employees who were similarly denied minimum wage and overtime compensation); Levinson v.
Primedia Inc., No. 02-CV-2222, 2003 WL 22533428, at *2 (S.D.N.Y. Nov. 6, 2003) (denying
certification where the plaintiffs offered only conclusory allegations that other individuals were
similarly misclassified as independent contractors). None of these cases discusses a scenario
where, as here, the plaintiff alleged a specific policy of compensating individuals for time
scheduled rather than time worked, and where the allegations are limited to the subgroup to
which the plaintiff was assigned at one particular location.
Defendant has, however, cited other cases that are more apt. See, e.g., Lujan v. Cabana
Mgmt., Inc., No. 10-CV-755, 2011 WL 317984 (E.D.N.Y. Feb. 1, 2011); Cuzco v. Orion
Builders, Inc., 477 F. Supp. 2d 628 (S.D.N.Y. 2007). Defendant focuses in particular on Jin Yun
Zheng v. Good Fortune Supermarket Grp. (USA), Inc., No. 13-CV-60, 2013 WL 5132023
(E.D.N.Y. Sept. 12, 2013). There, the district court denied a motion for conditional certification
where the plaintiff had offered only her own declaration in support, in which she claimed that
she and other store clerks were victims of a “common policy or plan that violated the law,” that
she “observed that other supermarket clerks did work that was the same or similar to the work
she did,” that other clerks “were similarly compensated and worked similar schedules,” and that
“other supermarket clerks were subject to the same time shaving policy.” Id. at *2 (alteration
and internal quotation marks omitted). The court held that such conclusory allegations were
insufficient because the plaintiff did not identify the employees who were similarly situated, nor
did she explain the basis for her observations. See id. at *5. Instead, the plaintiff “merely
restate[d] her conclusory factual allegations in a variety of forms.” Id.
Here, the Court is not persuaded that Plaintiff’s allegations are so bare and conclusory as
to fail to meet the “modest” burden at conditional certification. While Plaintiff has submitted

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only his own declarations, which identify only two other employees who have shared
information about Defendant’s employment practices, the allegations levied by Plaintiff are of a
different variety from those raised in the cases cited by Defendant. In Zheng, the plaintiff
alleged that the defendants deducted one hour of pay each day for lunch, but that she was only
actually afforded 30 minutes for lunch. See id. at *1. She also alleged that the defendants failed
to provide appropriate paystubs or to provide written notice of her regular pay rate, her overtime
hours, and the hours she worked. See id. The defendant there admitted that it deducted one hour
for lunch, but insisted that the plaintiff had, in fact, always taken an hour for lunch. See id. at *3.
Here, by contrast, Plaintiff does not allege simply that he was underpaid for the work he
performed; he has alleged the specific manner and operation by which such underpayment was
effected. According to Plaintiff, Defendant created a weekly schedule setting forth the 12-hour
shifts for each nurse, and compensated nurses based on that schedule as opposed to the amount
of hours actually worked, which regularly exceeded the number of hours scheduled. (See Am.
Compl. ¶¶ 38–41; Viriri Decl. ¶¶ 6–8.) While the Court agrees that Plaintiff could have
supplemented his declaration with more details about the alleged policy, the failure to provide
that detail is not sufficient to defeat conditional certification here. Plaintiff’s burden at this stage
is “modest,” and while Defendant may adduce evidence later in the litigation (perhaps in support
of a motion for decertification) showing that Plaintiff’s experience was unique, there is sufficient
evidence, at this stage, that the 12-hour shift schedule and compensation structure was not
limited to Plaintiff. This is sufficient to warrant conditional certification. See Ack v. Manhattan
Beer Distribs., Inc., No. 11-CV-5582, 2012 WL 1710985, at *3 (E.D.N.Y. May 15, 2012)
(rejecting, on a motion for collective certification, the defendants’ argument that the “plaintiffs’
experiences were limited to the unique practices of two . . . supervisors,” saying that the

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plaintiffs had adequately alleged a company-wide policy of denying overtime (alteration and
internal quotation marks omitted)).
b. Common Policy
Defendant next argues that Plaintiff has failed to set forth a policy or practice of
Defendant that is in violation of the FLSA. (See Def.’s Opp’n 9.) This contention lacks merit.
At this stage, Plaintiff need only provide some evidence that he and others “together were
victims of a common policy or plan that violated the law.” Myers, 624 F.3d at 555 (internal
quotation marks omitted). The allegations in the Amended Complaint and Plaintiff’s
declarations set forth that Plaintiff and the potential opt-in plaintiffs, despite working additional
time before and after their scheduled shifts, were compensated solely on the hours set forth in the
predetermined schedule. (See Am. Compl. ¶¶ 38–40; Viriri Decl. ¶¶ 6–8.) Plaintiff has thus
alleged a policy of Defendant of not compensating employees for actual time worked, but only
for time reflected in the predetermined schedules. These types of allegations are sufficient to
meet Plaintiff’s burden to show that he and others were victims of a common policy or plan in
violation of the FLSA. See Elamrani v. Henry Limousine, Ltd., No. 15-CV-2050, 2016 WL
5477590, at *1, *3 (E.D.N.Y. Sept. 28, 2016) (finding an allegation that the plaintiff “was paid
the same weekly salary regardless of the number of hours he worked each week” was sufficient
to warrant conditional certification); Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F. Supp.
2d 101, 104 (S.D.N.Y. 2003) (finding an allegation that the plaintiff “was paid the same weekly
salary regardless of the number of hours he was required to work in excess of forty during any
given week” was sufficient to warrant conditional certification). Accordingly, certification
cannot be denied on this basis.

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c. Similarly Situated
Defendant additionally argues that the Motion must be denied because Plaintiff has not
established that he is similarly situated to the other registered nurses. (See Def.’s Opp’n 10.)
Defendant’s first point here is largely a reiteration of its first argument, namely, that Plaintiff’s
conclusory allegations regarding his individual circumstances are insufficient to justify
conditional certification. (See id.) Again, the cases cited by Defendant here are inapposite. In
Guan Ming Lin v. Benihana Nat’l Corp., 755 F. Supp. 2d 504 (S.D.N.Y. 2010), the court denied
conditional certification because, among other things, the declarations offered by the plaintiffs
did not establish that they had been paid below minimum wage, see id. at 509–10, an issue not
present here as Plaintiff has made clear the manner in and extent to which he and others were not
adequately compensated. The court also noted that the plaintiffs failed to provide information
about other individuals who were purportedly observed receiving below-minimum-wage pay,
saying that there was no information about “who they [were], what their base salary [was], [and]
whether they [were] delivery persons or even tipped employees.” Id. at 510. Again, those issues
are not present here—regardless of what the other nurses’ rates-of-pay were, they were entitled,
according to Plaintiff, to full payment for hours worked and for overtime payment for hours
worked in excess of 40 hours per week. And Plaintiff has not sought to include any members in
the proposed class except the nurses working in the medical surgical unit, and thus the titles or
job descriptions of the potential opt-in plaintiffs are irrelevant.
Eng-Hatcher v. Sprint Nextel Corp., No. 07-CV-7350, 2009 WL 7311383 (S.D.N.Y.
Nov. 13, 2009), is also distinguishable, as there, the court denied a plaintiff’s attempt to
conditionally certify a nationwide class on the basis of only her individualized experience and
the experience of other employees at the same store; the court did not consider whether a “much

11

more modest class composition” would have passed muster. See id. at *3–5. And in Monger v.
Cactus Salon & Spa’s LLC, No. 08-CV-1817, 2009 WL 1916386 (E.D.N.Y. July 6, 2009), the
court denied conditional certification with respect to employees at stores other than where the
plaintiffs worked, but granted conditional certification with respect to the store where the
plaintiffs all worked together and could testify about the wage practices. See id. at *2. Here,
Plaintiff has not sought to conditionally certify a class for any locations other than White Plains
Hospital Medical Center, where he personally witnessed and was affected by the allegedly illegal
wage practices of Defendant. These cases are therefore inapplicable.
Defendant supplements its broad argument, however, with an additional observation—
Plaintiff was not employed at Defendant during the proposed class period. (See Def.’s Opp’n
11–13.) As the beneficiary of several tolling agreements, (see Am. Compl. ¶¶ 64–68), Plaintiff’s
claim for unpaid or underpaid wages extends further back in time than those of the potential optin plaintiffs, who may only be able to recover wages going back, at the earliest, to October 2013,
after Plaintiff had already left his position as a registered nurse in the medical surgical unit, (see
Am. Compl. ¶ 15; Viriri Decl. ¶ 1). There is thus a question as to whether Plaintiff is “similarly
situated” to the proposed class members, and whether his personal knowledge of alleged
violations that occurred prior to the class period is sufficient to conditionally certify a class.
With respect to whether Plaintiff is similarly situated to the proposed class members,
courts considering whether a plaintiff is similarly situated to other employees look to “the (1)
disparate factual and employment settings of the individual plaintiffs; (2) defenses available to
[the] defendants which appear to be individual to each plaintiff; and (3) fairness and procedural
considerations counseling for or against notification to the class.” Laroque v. Domino’s Pizza,
LLC, 557 F. Supp. 2d 346, 352 (E.D.N.Y. 2008) (internal quotation marks omitted). The issue of

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Plaintiff’s term of employment relates primarily to the first category: the disparate factual and
employment settings of the individual plaintiffs.
As an initial matter, Defendant has not offered any case law suggesting that a modest
temporal gap between the plaintiff’s employment and the employment period of other class
members prohibits or even counsels against conditional certification. (See generally Def.’s
Opp’n 11–13.) This dearth of authority is unsurprising. It is always the case in an FLSA
collective action that, absent equitable tolling, the representative plaintiff who initially brings the
action will have a different period of recoverable wages from the opt-in plaintiffs, who can
recover, at most, only wages from three years prior to their opting in. To the extent such a
disparity has never been held, to the Court’s knowledge, sufficient to deny conditional
certification, it makes little sense to hold that simply because there is no overlap between the
representative plaintiff’s recoverable wages and the opt-in plaintiff’s recoverable wages that
conditional certification is inappropriate. In both circumstances, the representative plaintiff will
be required to litigate and present evidence regarding a period of time of which he has no interest
and, perhaps, no personal knowledge. But while such a divergence of interest may have
implications in the Rule 23 class certification context, see In re Literary Works in Elec.
Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir. 2011) (“To satisfy Rule 23(a)(4), the
named plaintiffs must possess the same interests and suffer the same injuries as the class
members.” (alterations and internal quotation marks omitted)), Plaintiff here must establish only
that he is similarly situated to the potential opt-in plaintiffs, not that he and the “potential opt-in
plaintiffs [are] identical in all respects,” Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561,
565 (S.D.N.Y. 2012) (alteration and internal quotation marks omitted). Moreover, there is no
reason to infer, at this stage, that Plaintiff’s claim will implicate “disparate factual and

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employment settings” from the potential opt-in plaintiffs, see Laroque, 557 F. Supp. 2d at 352, as
the only difference identified by Defendant is the period of employment, not the terms or
conditions of that employment, see Hallissey, 2008 WL 465112, at *2 (holding that a disparity in
“dates of employment” or “hours worked” does “not necessarily create dissimilarity under the
FLSA”); Mentor v. Imperial Parking Sys., Inc., 246 F.R.D. 178, 181 (S.D.N.Y. 2007) (granting
conditional certification even though the “dates of employment” were unique to each employee).
A different question arises with respect to Defendant’s claim that the fact that Plaintiff
was not employed during the proposed class period undercuts any reliance on Plaintiff’s
declarations in support of the Motions, as Plaintiff does not have firsthand knowledge of any
violations occurring during the relevant period. (See Def.’s Opp’n 11–12.) Indeed, courts have
not hesitated to deny conditional certification where the plaintiff seeks to certify a class
comprising employees working at other store locations of which the plaintiff has no personal
knowledge and cannot therefore testify as to the employment practices. See, e.g., Sharma v.
Burberry Ltd., 52 F. Supp. 3d 443, 458 (E.D.N.Y. 2014) (denying conditional certification of a
statewide class because the plaintiff’s “lack of knowledge of any pay violations at other New
York stores[] do[es] not warrant a finding that [sales associates] at all New York stores are
similarly situated to the [p]laintiffs”); Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d
545, 558 (S.D.N.Y. 2013) (denying conditional certification of a citywide class because the
plaintiffs had “not demonstrated across all locations a uniform policy of failure to pay overtime
compensation”); Laroque, 557 F. Supp. 2d at 355 (denying conditional certification of a class
including employees at other locations because the plaintiffs’ support for the class was merely “a
hearsay statement that ha[d] been rebutted by the declarant”).

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Other courts, however, have recognized that the lack of personal knowledge is not fatal
where the plaintiff has offered testimony indicating a widespread policy or pattern of
management. See, e.g., Yap v. Mooncake Foods, Inc., 146 F. Supp. 3d 552, 563 (S.D.N.Y. 2015)
(granting conditional certification of a class including employees at other locations because
“evidentiary submissions . . . strongly suggest[ed] uniformity in the management and operation
of [employees] across all four [defendant] locations”); Guo Qing Wang v. H.B. Rest. Grp., Inc.,
No. 14-CV-813, 2014 WL 5055813, at *4 (S.D.N.Y. Oct. 7, 2014) (certifying a collective action
based on the plaintiff’s “observations and . . . conversations with his coworkers”); Juarez v. 449
Rest., Inc., 29 F. Supp. 3d 363, 371 (S.D.N.Y. 2014) (granting conditional certification of a class
including employees at other locations because there was evidence that the “three [locations]
were run as an integrated enterprise,” which could “reasonably imply that they had uniform
wage-and-hour policies”); Cheng Chung Liang v. J.C. Broadway Rest., Inc., No. 12-CV-1054,
2013 WL 2284882, at *1 (S.D.N.Y. May 23, 2013) (granting conditional certification of a class
including employees at other locations because the testimony “suggest[ed] that [the plaintiff’s
manager] may have been the source of the restaurant’s allegedly illegal labor practices and, thus,
there [was] some reason to believe that th[o]se policies may have been instituted at the other
establishments she owned”).
Plaintiff’s claim here is more in line with the latter set of cases. As discussed above, the
allegation is not that Plaintiff’s timecards were periodically shaved or changed without his
consent, or that his individual rate-of-pay was in violation of minimum wage guidelines.
Instead, Plaintiff’s claim is that Defendant had a policy of creating a schedule of work for nurses
each week, and then compensating nurses on the basis of the hours set forth in that schedule, and
not on the basis of the hours actually worked by the nurses, which routinely exceeded the

15

number of hours originally scheduled. Moreover, Plaintiff claims to have talked to other nurses
in the medical surgical unit who confirmed that the same policy has been applied to them. (See
Viriri Reply Decl. ¶¶ 2–4.) There is no suggestion by Defendant that Plaintiff was subject to a
different compensation scheme from other nurses in the medical surgical unit, or that Plaintiff
was part of some subset of nurses who reported to a different supervisor responsible for their
compensation. Plaintiff will of course bear the burden at the decertification stage (should
Defendant choose to move for decertification) of setting forth evidence that all of the opt-in
plaintiffs suffered the same wage violations alleged by Plaintiff. But at this stage, where the
plaintiff must make only a “modest factual showing” that “there may be other similarly situated
workers,” Liang, 2013 WL 2284882, at *1 (internal quotation marks omitted), the Court is
satisfied that Plaintiff has met that burden.
d. Predominance of Individual Issues
Defendant’s final argument against conditional certification is that individualized
inquires within the proposed class would pervade. (See Def.’s Opp’n 14.) Defendant identifies
two individualized issues that, it claims, counsel against conditional certification: (1) whether
each nurse worked sufficient hours to warrant overtime compensation and whether each nurse
was subject to the same schedule as Plaintiff, and (2) whether some of the nurses may be exempt
from overtime under the FLSA. (See id.) The first of these is plainly insufficient—it is always
the case in an FLSA overtime collective action that there will be some variation in the amount of
overtime hours worked. To hold that such variation is sufficient to deny conditional certification
would be to effectively eliminate collective actions in all overtime suits. See Hallissey, 2008
WL 465112, at *2 (“While . . . hours worked are unique to each employee, it does not
necessarily create dissimilarity under the FLSA.”); Mentor, 246 F.R.D. at 181 (“While . . . hours

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worked are unique to each employee, [the] [p]laintiff has met his burden of making a modest
factual showing sufficient to demonstrate that he and other employees together were victims of a
common policy or plan that violated the law.” (alterations and internal quotation marks
omitted)). Plaintiff has offered testimony that the other nurses were on the same schedule as him
and were similarly required to stay early and work late without additional compensation. If
Defendant has compelling evidence to the contrary, it could have presented it on this Motion. It
did not, and there is therefore no basis upon which to infer that the slight disparities in hours
worked that naturally arise in any FLSA collective action will be so dramatic here as to make
certification inappropriate.
With respect to the applicability of any exemptions, Defendant is correct that such
disparity can, in some circumstances, warrant denial of conditional certification. (See Def.’s
Opp’n 14 (citing Diaz v. Elecs. Boutique of Am., Inc., No. 04-CV-840, 2005 WL 2654270
(W.D.N.Y. Oct. 17, 2005); Mike v. Safeco Ins. Co. of Am., 274 F. Supp. 2d 216 (D. Conn.
2003).) But no such circumstances are present here. In Diaz, the court denied conditional
certification because one plaintiff, a manager, had alleged that he was misclassified as exempt,
and the other plaintiff, a sales associate, claimed only that he had not been paid overtime wages
for which he was undisputedly eligible. 2005 WL 2654270, at *3. The court noted that in
addition to the two plaintiffs being dissimilar to one another, the manager’s claim for
misclassification would “involve an analysis of daily duties and responsibilities,” and such an
analysis would have to be conducted with respect to “every individual” manager, and that those
responsibilities would “vary in number and types of employees supervised and in types of stores
managed.” Id. at *3–4. In Mike, the plaintiff raised a misclassification claim based on the fact
that the balance of his responsibilities were non-administrative, notwithstanding that the

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company-wide job description included both administrative and non-administrative tasks. See
274 F. Supp. 2d at 220. Because the court concluded that “any other plaintiff would also have to
present specific evidence of his or her daily tasks,” id. at 221, conditional certification was not
appropriate there.
Here, no such circumstances have been identified. Plaintiff has not claimed that he was
mistakenly classified as exempt. And to the extent Defendant intends to assert as a defense that
Plaintiff and others were exempt from overtime pay, there is no evidence suggesting that
Plaintiff’s job duties differed from that of any other nurse working in the same unit. Where there
are no differing job responsibilities among members of a proposed class, denial of conditional
certification is not appropriate merely because of the possibility that the defendant may argue
that the class members are exempt from overtime requirement. See, e.g., Liang, 2013 WL
2284882, at *2 (acknowledging that “[d]iffering job responsibilities are relevant to the analysis
to the extent that these differences might trigger exceptions to the wage and hour laws for some
workers but not others,” but noting that the “[d]efendants ha[d] given no indication that the
differing job responsibilities of [the employees] trigger[ed] any differing legal treatment”); In re
Penthouse Exec. Club Compensation Litig., No. 10-CV-1145, 2010 WL 4340255, at *3
(S.D.N.Y. Oct. 27, 2010) (rejecting the defendants’ argument that conditional certification was
inappropriate due to the possible exempt status of various class members because “the putative
class would include individuals with the same job title, the same job responsibilities, and who all
worked at a single adult entertainment club”); cf. Pippins v. KPMG LLP, No. 11-CV-377, 2012
WL 19379, at *8 (S.D.N.Y. Jan. 3, 2012) (“Where there is evidence that the duties of the job are
largely defined by comprehensive corporate procedures and policies, district courts have
routinely certified classes of employees challenging their classification as exempt, despite

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arguments about individualized differences in job responsibilities.” (alteration and internal
quotation marks omitted)).
In short, Defendant’s arguments regarding the possibility of individualized inquiries are
the same arguments routinely rejected by courts in the Second Circuit in similar circumstances.
As none of Defendant’s other objections has merit, conditional certification is appropriate, and
notice will be issued as set forth in this Opinion & Order.
B. Equitable Tolling
Plaintiff asks that because the statute of limitations for the potential opt-in plaintiffs
normally continues to run until each plaintiff files a consent to join the lawsuit, the Court should
exercise its discretion to equitably toll the statute of limitations. (See Pl.’s Mem. 13–14.)
Although Plaintiff does not offer a date on which he believes the tolling should begin, the Court
presumes, based on Plaintiff’s arguments, that he is requesting that the statute of limitations be
tolled for the time required to decide the pending Motion. (See id.) Defendant objects on the
basis that there are no extraordinary circumstances that warrant the application of equitable
tolling here. (See Def.’s Opp’n 15–18.)
In an FLSA collective action, “the limitations period continues to run for each plaintiff
until he or she files written consent with the court to join the lawsuit.” Jackson, 298 F.R.D. at
170. However, “[a] district court may toll the limitations period to avoid inequitable
circumstances, giving due consideration to whether the plaintiffs have acted with reasonable
diligence in pursuing their claims and whether the circumstances are extraordinary enough to
warrant equitable relief.” Id.; see also McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438,
445 (S.D.N.Y. 2012) (“[C]ourts have discretion to equitably toll the limitations period in

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appropriate cases in order to avoid inequitable circumstances.” (internal quotation marks
omitted)).
“The most common circumstance where equitable tolling might apply to FLSA actions is
where the defendant has concealed the existence of a cause of action from the plaintiffs . . . .”
Mark v. Gawker Media LLC, No. 13-CV-4347, 2014 WL 5557489, at *2 (S.D.N.Y. Nov. 3,
2014). Some courts have held, however, that in FLSA collective actions, the potential opt-in
plaintiffs’ claims may be tolled during the period the court takes to decide the conditional
certification motion. See, e.g., Jackson, 298 F.R.D. at 171 (“The delay required to decide a
motion may warrant equitable tolling.”); McGlone, 867 F. Supp. 2d at 445 (“While plaintiffs
wishing to pursue their rights cannot sit on them indefinitely, those whose putative class
representatives and their counsel are diligently and timely pursuing the claims should also not be
penalized due to the courts’ heavy dockets and understandable delays in rulings.”); Yahraes v.
Rest. Assocs. Events Corp., No. 10-CV-935, 2011 WL 844963, at *3 (E.D.N.Y. Mar. 8, 2011)
(“Accordingly, in the interest of fairness, I find equitable tolling is warranted from the date [the]
plaintiffs served their original certification motion . . . to the date [another judge] issued [a] stay
. . . , and from the date [the] plaintiffs re-filed their certification motion . . . to . . . the date I
granted it . . . .”). While no court in the Second Circuit has outright rejected the possibility of
equitable tolling in such circumstances, several courts have declined to apply equitable tolling
where the delay, in their view, was not of such a magnitude as to warrant tolling. See, e.g., Vasto
v. Credico (USA) LLC, No. 15-CV-9298, 2016 WL 2658172, at *16 (S.D.N.Y. May 5, 2016)
(declining to apply equitable tolling where “less than seven months ha[d] passed since [the]
plaintiffs filed their original motion for conditional certification in [another district], and less
than five months ha[d] passed since [the] plaintiffs renewed their motion in [the Southern

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District of New York]”); Martin v. Sprint/United Mgmt. Co., No. 15-CV-5237, 2016 WL 30334,
at *16 (S.D.N.Y. Jan. 4, 2016) (declining to apply equitable tolling where “less than two and a
half months ha[d] transpired since the filing of the [first amended complaint]”); Mark, 2014 WL
5557489, at *2–3 (declining to apply equitable tolling where eleven months had passed since the
filing of the motion for conditional certification, holding that “the time delay between the date
[the] [p]laintiffs filed the motion and its resolution in [that] case was not extraordinary” (internal
quotation marks omitted)).
Thus, the authority, while not split on the potential applicability of equitable tolling in
this circumstance, is split on the practical application of equitable tolling. Here, the Motion was
filed on October 20, 2016 and was fully briefed on November 21, 2016. There is thus a
substantial gap between the time the Motion was fully submitted and the date of this decision,
after which notice will be mailed out and potential opt-in plaintiffs will be made aware of their
right to participate in this Action. This delay is longer than the delay in Martin, see 2016 WL
30334, at *16, and similar to the delay in Vasto, see 2016 WL 2658172, at *16. In light of the
Court’s “heavy docket[],” McGlone, 867 F. Supp. 2d at 445, and the relatively lengthy delay
between the briefing on this Motion and the Court’s decision, the Court finds that the
circumstances here are sufficiently extraordinary to warrant equitable tolling from the date the
Motion was fully briefed, but not from the date the Motion was filed, until the date of this
Opinion & Order. While the Court appreciates that the delay comes through no fault of
Defendant, that is no reason to penalize the potential opt-in plaintiffs for the workflow of the
White Plains courthouse. Any additional issues relating to equitable tolling will be taken up at
the appropriate time.

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C. Content of the Notice
Defendant raises a number of challenges to the content of the proposed notice of the
pendency of the lawsuit (the “Proposed Notice”). The Court will address each in turn.
1. Information Regarding Defendant’s Position
Defendant first argues that the Proposed Notice, (see Decl. of Todd Krakower in Supp. of
Pl.’s Mot. for Conditional Class Certification, Notice, and Equitable Tolling Ex. B (“Proposed
Notice”) (Dkt. No. 29)), should include more information about Defendant’s position in the
litigation, (see Def.’s Opp’n 19). To that end, Defendant proposes the following language
(additions are underlined):
The Court has not made any determination as to the merits of Plaintiff’s claims or
your right to recover any sum of money from Defendant. Defendant denies all
claims against it in this lawsuit, maintains that it has paid all employees
appropriately and lawfully, and that Plaintiff’s suit is meritless. Defendant denies
that you are entitled to any of the damages, back pay, court costs, or attorney’s fees
sought in this lawsuit. Further, Defendant plans to request that the Court decertify
the collective action as soon as possible and/or dismiss the lawsuit, as they have a
right to do.
(Id. at 20.)
Some courts have allowed revisions similar to the ones suggested by Defendant here.
See, e.g., Martin, 2016 WL 30334, at *17; Enriquez v. Cherry Hill Market Corp., No. 10-CV5616, 2012 WL 440691, at *4 (E.D.N.Y. Feb. 10, 2012). But the basis of including additional
language is to ensure “proportionality” in the notice. Hernandez v. Merrill Lynch & Co., No. 11CV-8472, 2012 WL 1193836, at *5 (S.D.N.Y. Apr. 6, 2012). The language proposed by
Defendant is not proportional, as it goes beyond simply informing the potential opt-in plaintiffs
of the status of the action and instead makes subtle but obvious efforts to dissuade the opt-in
plaintiffs from joining. The Court agrees, in line with other cases, that the language regarding
the absence of any adjudication on the merits is appropriate, and also agrees that the potential
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opt-in plaintiffs should be advised that Defendant has asserted compliance with the FLSA. The
Proposed Notice will therefore be amended as follows, in place of the sentencing beginning
“Defendant denies all claims”:
Defendant denies all claims against it and maintains that it has complied with the
FLSA. Defendant denies that you are entitled to any of the damages, back pay,
court costs, or attorney’s fees sought. The Court has not yet made any
determination as to the merits of the claims or your right to recover any sum of
money from Defendant.
2. Information Regarding Plaintiff’s Discovery Obligations and Costs
Defendant next objects that the Proposed Notice, which states that “[a] small percentage
of you may be subject to having to respond to discovery requests of the Defendants and possibly
be required to provide testimony,” (Proposed Notice 3), should be amended to inform the
potential opt-in plaintiffs that they may need to respond to interrogatories, produce documents
and information, appear at a deposition, and otherwise participate in discovery, (see Def.’s
Opp’n 20). Defendant also argues that the Proposed Notice should include language warning
that opt-in plaintiffs could be assessed costs if Defendant prevails in the litigation. (See id. at
21.)
Defendant cites to Hernandez v. Immortal Rise, Inc., No. 11-CV-4360, 2012 WL
4369746 (E.D.N.Y. Sept. 24, 2012), a largely unhelpful case, as there, the court denied the
defendants’ request to include language referencing the payment of costs, noting that the weight
of authority is against such language, and included only the following language with respect to
discovery: “you may be asked to testify and provide information about the work you performed
for defendants in order to help the Court decide whether you are owed any money.” Id. at *7.
As this is the only case cited by Defendant regarding whether its proposed language should be
included—the other cases address only whether costs may be assessed against FLSA plaintiffs,

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and not whether potential opt-in plaintiffs must be warned of that possibility—and as the
Proposed Notice comports with Hernandez, there is no need to make any modifications to the
Proposed Notice in this respect.
3. Consent Forms Addressee
Next, Defendant argues that the potential opt-in plaintiffs should be told to send their
consent forms directly to the Court instead of to Plaintiff’s counsel, arguing that any instruction
to the contrary would discourage opt-in plaintiffs from retaining their own counsel. (See Def.’s
Opp’n 21.) While Defendant is correct that some courts have modified proposed FLSA notices
in this respect, see, e.g., Diaz v. S & H Bondi’s Dep’t Store, No. 10-CV-7676, 2012 WL 137460,
at *8 (S.D.N.Y. Jan. 18, 2012); Hallissey, 2008 WL 465112, at *4, the “majority of courts” have
directed opt-in plaintiffs to mail consent forms to the plaintiffs’ counsel, see Martin, 2016 WL
30334, at *18 (collecting cases). Where, as here, the notice makes clear that “opt-in plaintiffs
can select their own counsel, there is only a minimal risk that opt-in plaintiffs will be
discouraged from seeking their own counsel.” Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 60
(S.D.N.Y. 2009). There is thus no need for the Court to fulfill the administrative task of
collecting consent forms.
Defendant also contends that the statement, “your claim may lose value due the passage
of time,” (Proposed Notice 3), should be stricken because the “statement discourages persons
from using their own counsel,” (Def.’s Opp’n 21). Defendant cites no authority on this point,
and the Court sees nothing coercive about this language. Accordingly, no revision is needed
here.

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4. Information Regarding Named Plaintiff
Defendant contends that the Proposed Notice should be amended to include a brief
description of the named Plaintiff “in order to give potential opt-in plaintiffs information as to
whether they believe he is an appropriate representative and their agent.” (Id. at 22.) As
Plaintiff points out, (see Reply Mem. of Law in Supp. of Pl.’s Mot. for Conditional Collective
Certification 12–13 (Dkt. No. 33)), there is no authority for this position. The Court does agree
that the Proposed Notice should be amended to make clear that Brian Viriri is a former employee
of Defendant, but no additional information is needed.
5. “Legal Effect Of Not Filing The Consent Form”
Finally, Defendant argues that the language under Section 8 discussing the legal effect of
a potential opt-in plaintiff’s decision not to join the Action is threatening and must be “revised to
ensure accuracy under the laws and a fuller explanation of the options available to the opt-in
plaintiffs.” (Def.’s Opp’n 22.) Whatever the merits of Defendant’s contention, it has not
explained what portion of the section it finds objectionable or what changes should be made.
Accordingly, no revisions to this section will be made.
III. Conclusion
For the foregoing reasons, Plaintiff’s Motion is granted. Plaintiff’s proposed collective
action is conditionally certified pursuant to 29 U.S.C. § 216(b). The claims of the potential optin plaintiffs are tolled for the period between November 21, 2016 and the date of this Opinion &
Order. The Proposed Notice is approved with the modifications discussed above. Defendant
shall provide to Plaintiff a computer-readable data file containing the names, last known mailing
addresses, telephone numbers, Social Security numbers, work locations, and dates of
employment of all potential opt-in plaintiffs. Defendant shall post the Proposed Notice (with the

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modifications discussed), along with the consent forms, in each of Defendant's locations where
potential opt-in plaintiffs are employed.
The Clerk of Court is respectfully directed to terminate the pending Motion . (Dkt. No.

28.)
SO ORDERED.
DATED:

JuneR_,2017
White Plains, New York

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