Chen v. Xpresspa at Term. 4 JFK, LLC
1:15-cv-01347
E.D.N.YSep 23, 2016Background
- Plaintiffs are current and former XpresSpa spa technicians at multiple U.S. airports who allege they were paid commission-only (30% service, 10% product) and not paid minimum/hourly or overtime wages.
- Plaintiffs claim company policies (a rotation system, uncompensated non-commission work, unpaid travel between stores, uniform deposits, lack of wage statements, no spread-of-hours pay) caused misclassification as exempt under FLSA § 207(i).
- Named Plaintiffs sought conditional collective-action certification under 29 U.S.C. § 216(b); eight employees have already opted in.
- Magistrate Judge Pollak recommended conditional certification, multi-language notice (English, Spanish, Chinese), production of contact information, and tolling the FLSA statute of limitations from July 1, 2015 until mailing of notice.
- Defendants objected that plaintiffs are not similarly situated nationwide, that certain evidence (from a prior Kuznetsov case) should be disregarded, and that equitable tolling is unwarranted.
- The District Court (Judge Amon) adopted the R&R in full, granting conditional certification, ordering discovery/notice procedures, requiring multilingual notice and posting, and tolled the limitations period from July 1, 2015 to the notice mailing date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs are "similarly situated" for conditional (notice-stage) FLSA certification | Plaintiffs made a "modest factual showing" via affidavits that nationwide policies (rotation, unpaid non-commission work, unpaid travel) affected all putative class members | Crayton declaration: policies are not uniform nationwide; some locations use hourly pay or no rotation, and some use dedicated greeters changing dynamics | Court granted conditional certification—affidavits satisfied the modest showing; factual disputes reserved for later decertification after discovery |
| Whether evidence from the Kuznetsov action must be excluded at this stage | Plaintiffs relied mainly on their own affidavits and some Kuznetsov-derived evidence to show common policies | Defendants argued Kuznetsov-derived evidence should be disregarded, undermining plaintiffs' modest showing | Court found affidavits alone sufficient and declined to decide admissibility of Kuznetsov evidence at this stage |
| Whether the FLSA statute of limitations should be equitably tolled from filing of certification motion | Plaintiffs sought tolling from July 1, 2015 (date motion filed) to date notices are mailed to avoid time-barring opt-ins | Defendants argued tolling is inappropriate because plaintiffs delayed and there were no extraordinary circumstances | Court granted equitable tolling from July 1, 2015 to mailing date, finding delay attributable to court process could justify tolling to avoid prejudice to potential opt-ins |
| Scope and mechanics of notice/discovery following conditional certification | Plaintiffs requested defendants produce contact information, multilingual notice, and confidentiality stipulation timeline | Defendants objected generally to scope and timing | Court ordered defendants to produce requested information, gave parties two weeks to complete specified steps, required English/Spanish/Chinese notices and posting on employee boards |
Key Cases Cited
- Jarvis v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161 (E.D.N.Y. 2011) (standard for reviewing unobjected portions of a magistrate judge's R&R)
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (courts should avoid appearing to endorse merits when supervising notice in collective actions)
- Bittencourt v. Ferrara Bakery & Café, Inc., 310 F.R.D. 106 (S.D.N.Y. 2015) (plaintiffs may rely on affidavits to make modest factual showing for conditional certification)
- Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74 (2d Cir. 2003) (equitable tolling is reserved for rare and extraordinary circumstances)