166 F. Supp. 3d 474
S.D.N.Y.2016Background
- Plaintiff Gloria Benavides worked as a nail technician and massage therapist at Serenity Spa NY during two periods (2012–2013; 2014–2015) and alleges she and other non‑exempt employees were paid below minimum wage, paid off‑the‑books, not given proper tip‑credit/wage notices, and not paid overtime in violation of the FLSA and NYLL.
- Benavides moved for authorization to send an FLSA collective‑action notice (conditional collective certification) to all non‑exempt employees who worked for defendants in the last six years and sought production of contact and compensation records (including SSNs if mailings are undeliverable).
- Defendants opposed broad certification, a six‑year notice period, production of private contact data, and some discovery as premature or overly broad.
- The court applied the Second Circuit two‑step FLSA collective action framework and found Benavides made the modest factual showing required for conditional notice based on her declarations, payroll records, and the defendant Dai’s deposition admitting uniform pay practices and no overtime payments.
- The court conditionally certified a class of all non‑exempt employees at Serenity Spa NY, but limited notice to the three‑year FLSA period (with leave to seek a six‑year notice if the notice is revised to avoid confusion with NYLL claims).
- The court ordered defendants to produce names, titles, pay rates, last known addresses, emails, phone numbers, and employment dates for putative collective members within the three‑year period; declined to order production of Social Security numbers at this stage; and compelled broad compensation and tip/commission records for the six‑year period for Rule 23 discovery purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditional collective notice (authorization to send opt‑in notice) should be issued | Benavides: has modest factual showing (her testimony, names of co‑workers, payroll/wage records, Dai deposition) showing common policy of underpayment and no overtime | Defs: assertions too conclusory; plaintiffs must show more than observations and conversations; limit scope | Authorized conditional notice for all non‑exempt employees at Serenity Spa NY (class encompasses nail technicians, massage therapists, aestheticians, other spa techs) based on plaintiff’s evidence and Dai deposition admissions. |
| Appropriate notice period (3 years v. 6 years) | Benavides: seek six years to cover NYLL claims and potential Rule 23 class | Defs: limit to FLSA statute (maximum 3 years for willful) and avoid confusion; calculate from certification date | Limited notice to three years before complaint; six‑year period denied without prejudice — plaintiff may seek expansion with a revised notice that clearly distinguishes FLSA vs NYLL limits. |
| Where consent forms should be mailed (plaintiff’s counsel v. Clerk) | Benavides: mailing to counsel increases participation, expedites contact, helps reach transient workers | Defs: mailing to counsel may discourage independent counsel or create pressure; prefer Clerk | Court approved mailing consent forms directly to plaintiff’s counsel, provided notice expressly informs opt‑ins they may retain separate counsel. |
| Whether notice/consent must be posted at workplace | Benavides: posting maximizes reach and is routine | Defs: posting unnecessary if mail sufficient; burden/unnecessary disruption | Court ordered posting in a common, non‑public employee area; found no undue burden. |
| Production of contact information and SSNs for putative collective/class members | Benavides: needs names, addresses, email, phone, employment dates, pay rates, and SSNs (if mailings undeliverable) to effectuate notice and for Rule 23 discovery | Defs: production of private contact info and SSNs premature and burdensome; SSNs particularly sensitive; only produce limited data if necessary | Ordered production of names, titles, pay rates, last known addresses, emails, phone numbers, and employment dates for employees within the three‑year collective period. Denied SSN production at this time without prejudice; allowed production of payroll, wage, tip, commission records and Dai’s texts for six‑year period for class certification discovery. |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (two‑step FLSA collective certification standard; courts may facilitate notice)
- Hoffmann‑La Roche, Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (district courts have discretion to authorize notice to potential collective plaintiffs)
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (U.S. 1978) (discovery relevance standard; class member identities may be discoverable when relevant)
- Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445 (S.D.N.Y. 2011) (permitting inclusion of defense counsel contact info in notice and discussing notice mechanics)