Rosario v. Valentine Avenue Discount Store, Co.
2011 U.S. Dist. LEXIS 126634
| E.D.N.Y | 2011Background
- Stores are independently incorporated discount department stores owned by Raymond Srour; plaintiff Rosario and opt-in Gomez allege a common wage-and-hour violation policy across the Stores.
- Rosario worked at Valentine Avenue Discount Store Co., Inc. (2006-2010) and Grand Concourse Discount, Inc. (2009-2010) with 60 hours/week paid as salary, allegedly below minimum wage and unpaid overtime.
- Gomez worked at six Stores from 1992-2009, often paid salaries or hourly wages with alleged unpaid overtime and improper clock-out practices.
- Plaintiff seeks conditional certification under 29 U.S.C. § 216(b), production of potential opt-in plaintiffs’ information, and authorization to circulate a pendency notice.
- Court considers whether a modest factual showing exists of a common policy across the Stores, and whether opt-in plaintiffs can be identified and notified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditional certification is appropriate at the notice stage | Rosario shows a common policy across Stores | Policy is not proven across all Stores | Yes, conditional certification granted |
| Whether a common policy extends to all twenty-seven Stores | There is a common payroll policy and ownership by Srour | Policy lacks proof across all locations | Yes, modest showing of common policy extending to all Stores (subject to discovery) |
| Scope of the proposed class and notice period | Class should include non-managerial merchandise/maintenance workers | Too broad; limit to clearly similarly situated employees | Notice limited to non-managerial merchandise/maintenance workers; three-year look-back for notice |
| Discovery of names and contact information of potential opt-ins | Names, addresses, phone numbers, and employment dates are essential | Privacy concerns; limit to essential data | Produce names, last known addresses, telephone numbers, and dates of employment; other data not required at this stage |
Key Cases Cited
- Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (U.S. Supreme Court 1989) (development of representative action under FLSA; notice permissible for opt-in)
- Myers v. The Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (two-step process; notice stage is lenient for conditional certification)
- Lynch v. United Servs. Auto. Ass’n, 491 F.Supp.2d 357 (S.D.N.Y. 2007) (two-step approach; notice stage for similarly situated employees)
- Fasanelli v. Heartland Brewery, Inc., 516 F.Supp.2d 317 (S.D.N.Y. 2007) (affirmative use of affidavits showing common wage-and-hour practices)