McGlone v. Contract Callers, Inc.
867 F. Supp. 2d 438
| S.D.N.Y. | 2012Background
- McGlone moves under 29 U.S.C. § 216(b) for conditional certification to proceed collectively against CCI, McGuire, and Wertz in an FSLA action.
- CCI is a Georgia-based company with 12 divisions; approximately 500 employees, about half as Field Service Representatives (FSRs).
- McGlone, an FSR in Queens, NY (2008–2010), was required to start work before clock-in and faced automatic deduction for meal breaks; he reported overtime but was instructed not to record it.
- Plaintiff alleges uniform policies of pre-shift work, pre-break deductions, end-of-day duties, and underpayment across the company, with inconsistent division-level payroll practices.
- A prior similar suit in Missouri (Evans) relied on McGlone’s affidavit to argue common policy; that court rejected nationwide certification due to lack of a colorable policy across all locations.
- Judge applies the two-step, conditional-certification standard for FLSA collective actions and limits nationwide notice given lack of personal knowledge of a nationwide policy; grants New York Division notice instead and tolls the limitations period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the proposed class is sufficiently 'similarly situated' nationwide. | McGlone argues a common policy affects all FSRs across divisions. | Defendants contend evidence is insufficient and based on information and belief, not personal knowledge. | Nationwide certification denied. |
| Whether a modified class limited to the New York Division is appropriate. | New York FSRs share the alleged violations with the named plaintiff. | All locations should be considered; broader scope risks inequitable results. | Modified class limited to New York Division granted. |
| Whether equitable tolling should apply to the limitations period. | Delay from judicial rulings on certification is extraordinary and warrants tolling. | No tolling unless justified by extraordinary circumstances beyond the plaintiffs’ control. | Statute of limitations tolled as of the filing date of the motion. |
| Whether conditional certification is appropriate at the first-stage notice. | Court should certify for notice if modest showing of common policy exists. | Showings must be concrete and not merely speculative; nationwide lack of common policy undermines certification. | First-stage conditional certification granted for NY Division; denied for nationwide class. |
Key Cases Cited
- Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165 (Supreme Court 1989) (notice to potential opt-in plaintiffs in collective actions)
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (two-step approach to FLSA collective actions)
- Bifulco v. Mortgage Zone, Inc., 262 F.R.D. 209 (E.D.N.Y. 2009) (modest factual showing required at notice stage)
- Mentor v. Imperial Parking Sys., Inc., 246 F.R.D. 178 (S.D.N.Y. 2007) (low threshold for initial certification; no credibility determinations at stage one)
- Cunningham v. Elec. Data Sys. Corp., 754 F.Supp.2d 638 (S.D.N.Y. 2010) (first-stage determination of similarly situated plaintiffs)
- Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516 (D. Md. 2000) (limiting nationwide notice when only facility-specific evidence exists)