Muhammad v. Alto Pharmacy LLC
1:23-cv-11315
S.D.N.Y.May 1, 2025Background
- Plaintiffs were couriers/delivery drivers for Alto Pharmacy in NYC and allege they were misclassified as independent contractors and denied overtime pay under the FLSA and NYLL between January 1, 2021, and July 16, 2024.
- Plaintiffs assert Alto controlled their schedules, assigned routes, dictated pay, and required adherence to Alto’s policies, treating all couriers similarly.
- Alto maintained it treated couriers as independent contractors, paying a flat hourly rate with no overtime, and claims only 30 couriers worked over 40 hours a week, but Plaintiffs allege the number is higher due to time records being altered.
- Plaintiffs also allege Alto retained courier tips and failed to provide proper wage notices and pay transparency as required under NYLL.
- The instant motion is for conditional certification of an FLSA collective action to notify similarly situated couriers/delivery drivers, for a proposed notice and opt-in procedure, and for equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conditional certification of FLSA collective | Couriers were subject to common unlawful pay/classification policy; similarly situated employees exist | Only 30 couriers worked 40+ hours; collective should be so limited | Granted—collective includes all Alto NYC couriers from Jan. 1, 2021–July 16, 2024 |
| Proper scope of collective (time/number) | 3-year period justified due to alleged willfulness; more than 30 affected | Period too broad, should be limited to 30 known 40+ hour couriers, two-year period | Three-year lookback applies; no limitation to 30 couriers at this stage |
| Equitable tolling | Needed due to high turnover; some potential plaintiffs no longer work at Alto | No showing of exceptional circumstances to toll | Denied—no exceptional circumstances shown, but not prejudiced for future motion |
| Method and content of notice; opt-in period | Notice via text, 90-day opt-in, broad info request | 60 days is standard; concerns over language and defense counsel info | 60-day opt-in; text distribution allowed; parties to revise notice format/content |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (adopts two-step method for FLSA collective certification and low burden at conditional stage)
- Hoffmann v. Sbarro, Inc., 982 F. Supp. 249 (S.D.N.Y. 1997) (standard for showing common policy under FLSA conditional certification)
- Korenblum v. Citigroup, Inc., 195 F. Supp. 3d 475 (S.D.N.Y. 2016) (conditional FLSA certification is not on the merits; low burden)