Zaldivar v. JMJ Caterers, Inc.
166 F. Supp. 3d 310
E.D.N.Y2016Background
- Plaintiff Orbin Zaldivar worked as a dishwasher/food preparer at The Metropolitan (a catering business) from early 2010 until late 2013 (disputed end date) and alleges regular 12-hour shifts six days/week.
- Zaldivar alleges a ‘‘two punch card’’ system: one card recorded the first 40 weekly hours (paid by check with tax withholding) and a second card recorded overtime hours (paid in cash at regular rate), depriving employees of overtime premium.
- Plaintiff claims the practice applied to kitchen staff, servers, and busboys/runners and that he complained to management, who refused to pay overtime.
- Plaintiff moved for conditional certification of an FLSA collective action under 29 U.S.C. § 216(b) on behalf of servers, busboys, and kitchen workers employed since December 28, 2012; defendants opposed, disputing allegations of overtime and the existence/application of the punch‑card scheme.
- The court applied the Second Circuit two‑step collective‑action framework, found Plaintiff made the modest factual showing required at the first step, and granted conditional certification for the proposed collective.
- Court ordered defendants to produce contact information (names, addresses, phone numbers, email addresses, dates of employment) for potential opt‑ins and allowed limited briefing on the proposed notice content.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs are "similarly situated" for conditional certification under § 216(b) | Zaldivar: his affidavit plus time‑card sampling and eyewitness accounts show a common unlawful pay practice (two punch cards) affecting servers, busboys, kitchen staff | Defendants: disputes factual allegations (hours worked, overtime paid, existence of busboys, who worked overtime); supply time cards showing overtime paid | Granted: court applied the lenient, first‑step "modest factual showing" standard and found sufficient factual nexus to conditionally certify the collective |
| Proper scope / job categories included in the collective | Zaldivar seeks servers, busboys, kitchen workers (Dec 28, 2012–present) as all subject to the same policy | Defendants sought to limit to kitchen staff only, arguing other positions couldn’t have worked overtime | Rejected limit: court held differing job functions do not defeat conditional certification where a common unlawful policy is alleged |
| Applicable statute of limitations for notice period | Zaldivar alleges willful violations and requests three‑year period; proposes opt‑in period beginning Dec 28, 2012 | Defendants dispute willfulness; no focused reply on period | Court applied three‑year FLSA limitations at this stage and certified claims back to March 27, 2012 but accepted plaintiff’s proposed class starting Dec 28, 2012 |
| Scope of discoverable contact information for notice | Zaldivar requests computer‑readable list including names, addresses, phones, DOBs, dates of employment | Defendants did not oppose substantively | Court ordered production of names, addresses, phone numbers, email addresses, dates of employment; declined DOBs and SSNs absent particularized need |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (adopts two‑step analysis for FLSA collective certification and explains the "modest factual showing" standard)
- Hoffmann‑La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (district court has broad discretion over form and content of notice in collective actions)
- Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d 1562 (11th Cir. 1991) (unsupported assertions insufficient to meet FLSA collective showing)
- Iglesias‑Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363 (S.D.N.Y. 2007) (employees with varied positions can be similarly situated where a common policy is alleged)
- Wraga v. Marble Lite, Inc., 2006 WL 2443554 (E.D.N.Y. 2006) (note: court relied on plaintiff affidavit and discussions with co‑workers to approve notice) (included as persuasive authority on affidavit sufficiency)