35 F. Supp. 3d 247
E.D.N.Y2014Background
- Plaintiffs (Angel Dilonez and opt-ins) are Spanish‑speaking former non‑exempt employees of Fox Linen alleging failure to pay overtime in violation of the FLSA and New York labor law; they worked duties like sorting, washing, ironing, folding.
- Plaintiffs submitted declarations saying Fox Linen paid by check for the first 35–40 hours and paid additional hours in cash at straight time; named other employees allegedly subject to the same scheme.
- Plaintiffs moved for conditional certification of an FLSA collective and for court‑approved notice and contact information for current/former non‑exempt employees; requested notices in English and Spanish, posting, and publication in Spanish periodicals.
- Defendants opposed conditional certification, challenged the initial declarations as undated/unsigned (later cured), submitted affidavits claiming no employees worked over 40 hours, and argued for limiting the class by title and restricting notice content and scope.
- The court applied the two‑step FLSA collective action framework, found plaintiffs made the required modest factual showing for conditional certification, and granted conditional certification with detailed directions on notice, scope, translations, posting, contact production, opt‑in period, and handling of consent forms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conditional certification (similarly situated) | Declarations show common payroll scheme and overtime work across non‑exempt staff | Declarations were technically deficient (undated/unsworn) and seven employee affidavits say no >40 hrs; class should be limited by job title | Granted: modest factual showing satisfied after plaintiffs cured declaration defects; disputes reserved for second‑step review |
| Scope of notice (timeframe) | Send notice to employees who worked within 6 years (to cover NY statute) | Limit notice to 3 years (FLSA limitations) | 6 years allowed to include potential NY claims for judicial economy |
| Notice content re: state law and consequences | Include New York law references and neutral discovery warning; bilingual notice | Exclude state law, add warnings about immigration, costs, counterclaims, and require affirmative overtime statement on consent | Allowed references to NY law and a neutral discovery warning; excluded immigration, costs, and counterclaims language; did not require affirmative hours statement on consent |
| Consent form return location | Return to plaintiffs’ counsel (practical, reduces court burden) | Require filing directly with Clerk (avoid tolling delays, avoid bias) | Return to plaintiffs’ counsel permitted; counsel expected to promptly file with court |
| Translations and publication | Provide English and Spanish notice/consent and publish in Spanish periodicals | Object unless translations approved by both sides | Bilingual circulation and Spanish publication approved; translations must be approved by both parties |
| Employee contact production & opt‑in period | Produce names, addresses, phones, employment dates; 60‑day opt‑in | Objected only on scope (timeframe) | Defendants ordered to produce contact info for non‑exempt employees from past 6 years within 10 days; 60‑day opt‑in period; notice to start within 14 days |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (sets out two‑step conditional certification framework and modest factual showing standard)
- Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013) (discusses consequences of conditional certification and opt‑in mechanics)
- Puglisi v. TD Bank, N.A., 998 F. Supp. 2d 95 (E.D.N.Y. 2014) (discusses collective action standards in this district)
- Jenkins v. TJX Cos., Inc., 853 F. Supp. 2d 317 (E.D.N.Y. 2012) (applies first‑step certification analysis)
- Iglesias‑Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363 (S.D.N.Y. 2007) (refuses to limit conditional class by job title when common practices affect multiple positions)