NOEMY JACKSON, ROBERTO PEREZ, аnd RAYMUNDO GALLARDO, on behalf of themselves and all other similarly-situated individuals v. PROAMPAC LLC a/k/a PROAMPAC; AMPAC HOLDCO INC. a/k/a PROAMPAC; and AMPAC PAPER, LLC
Case 7:22-cv-03120-NSR-JCM
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
9/25/2023
NELSON S. ROMÁN, United States District Judge
Document 55 Filed 09/25/23;
NELSON S. ROMÁN, United States District Judge:
Plaintiffs Noemy Jackson, Roberto Perez, and Raymundo Gallardo (collectively, “Plaintiffs“) bring this action, on behalf of themselves and others similarly situated, against Defendants ProAmpac LLC, Ampac Holdco. Inc., and Ampac Paper, LLC (collectively, “ProAmpac“), asserting claims under the Fair Labor Standards Act (“FLSA“) and the New York Labor Law (“NYLL“).1 (See Second Amended Complaint (“SAC“), ECF No. 51-1.)
Pending before the Court are (1) Defendants’ motion to dismiss Plaintiffs’
BACKGROUND
ProAmpac “manufactures flexible packing supplies” at a facility located in Walden, New York. (SAC at ¶ 1.) Plaintiffs worked alongside one another and others similarly-situated as hourly-paid, non-exempt employees at the Walden facility. (Id.) Plaintiffs and similarly-situated employees worked together as machine operators, assistants, or “catchers,” as well as other manual labor positions in the converting and printing departments. (Id. at ¶ 36.)
Plaintiffs were employees in the converting department, which “assembles raw materials into paper bags, prints onto the bags, and packages the bags.” (Affirmation of Noemy Jackson (“Jackson Aff.“) at ¶ 5, ECF No. 34-1; Affirmation of Roberto Perez (“Perez Aff.“) at ¶ 5, ECF No. 34-2; Affirmation of Reynaldo Cruz (“Cruz Aff.“) at ¶ 4, ECF No. 34-3.) “Operators” run the machine “which assembles and prints the paper bags” (Perez Aff. at ¶ 5), “catchers” collect finished bags from the machine and examine them for quality assurance (Jackson Aff. at ¶ 5), and “assistants” or “helpers” provide support to “operators” and “catchers” in maintaining the machines and collecting bags (Cruz Aff. at ¶ 4). Ms. Jackson was a “catcher” and worked as a full-time еmployee for more than twenty-five years until March 2022, when she was fired. (SAC at ¶ 10; Jackson Aff. at ¶¶ 3, 5.) Mr. Perez is an “operator” and full-time employee who has also worked for ProAmpac for nearly twenty-five years. (SAC at ¶ 14; Perez Aff. at ¶¶ 3, 5.) Mr. Gallardo worked as a full-time employee for ProAmpac between November 2019 and March 2022. (SAC at ¶ 18.) Alongside the approximately 100 employees who worked in the converting department, approximately 24 employees worked in the printing department.
During the relevant time, ProAmpac staffed its Walden facility 24 hours a day and 7 days a week. (SAC at ¶ 37.) To do so, ProAmpac scheduled two shifts, each of which lasted 12 hours. (Id.) To track employee time, ProAmpac maintained an electronic timekeeping system by which employees would “scan their hands and fingers” to start work and then again to finish work. (Id. at ¶ 41.) Employees were required to “scan in” five-to-fifteen minutes before their scheduled work shifts. (Id. at ¶ 42.) They would do so to allow time to “put on protective gear,” “check the assignment boards,” and “be on standby ready to take over operation of machinery from co-workers whose shifts were ending.” (Id. at ¶ 43.) Plaintiffs and similarly-situated employees, however, were not compensated for this additional time because ProAmpac maintained a “rounding policy” which “rounded up” start time and “rounded down” end time in ProAmpac‘s favor. (Id. at ¶¶ 46–47.) As such, ProAmpac failed to compensate employees for “all of their time worked,” including overtime pay when the rounding policy resulted in unpaid work for wеeks in which employees worked more than 40 hours. (Id. at ¶¶ 49–51.)
Moreover, ProAmpac requires employees to purchase work equipment, including steel-toed boots. (Id. at ¶ 52.) Although each year ProAmpac provided each employee with a single pair of steel-toed boots to wear as required personal protective equipment, “these boots wore out quickly and did not last a full year.” (Id. at ¶ 53.) Employees were thus forced to purchase additional pairs of boots each year to meet ProAmpac‘s safety requirement. (Id. at ¶ 54.) In addition, “operators” were required to purchase their own tools—e.g., wrenches, screwdrivers—to use when working on the machines. (Id. at ¶ 56.) Plaintiffs allege that these additional purchases “decreased their wages below the legally-required hourly wage.” (Id. at ¶ 60.)
Lastly, Plaintiffs allege ProAmpac failed to furnish accurate wage statements. (Id. at ¶¶ 63–64.) Because of ProAmpac‘s rounding policy, these statements “obscured the actual hours
worked” by Plaintiffs and others similarly-situated. (Id. at ¶ 65.) As a result, these statements resulted in “wage theft,” “deprived” employees “of the opportunity to spend their wages on necessary expenses,” and prevented employees from exercising their legal rights. (Id. at ¶¶ 66–68.) The wage statements also failed to include the legal name of the Plaintiffs’ employer; instead, the statements generically indicate the employer was “ProAmpac,” which is not the name of a legal entity registered to do business in New York. (Id. at ¶¶ 71–72.) Because the wage statements did not include the “proper legal name” of Plaintiffs’ employer, Plaintiffs and others similarly-situated were delayed in exercising their legal rights. (Id. at ¶ 73.) Plaintiffs’ counsel also allegedly “had to conduct additional research to identify what entity or entities to name as Defendants in this action.” (Id.)
In a Complaint filed on April 15, 2022 and subsequently amended (see ECF Nos. 1, 18, 51-1), Plaintiffs assert FLSA and NYLL claims on behalf of themselves and others similarly-situated. Plaintiffs allege under federal and state law that ProAmpac failed to pay them an overtime premium for all hours worked above 40 hours in a work week. (SAC at ¶¶ 102–114.) Plaintiffs also allege under state law that
Meanwhile, Plaintiffs seek conditional certification of this action as an FLSA collective action for the following class of potential opt-in plaintiffs (ECF No. 32):
All current and former employees who worked for ProAmpac at its Walden, NY plant in the converting or printing departments in non-supervisory positions at any time between April 15, 2019 through the date of final judgment in this matter.
(Plaintiffs’ Memorandum of Law in Support of Motion to Conditionally Certify (“Plfs. Mem.“) at 1, ECF No. 33.)
MOTION TO DISMISS
I. Count Three: NYLL § 193
Defendants move under
Under
While the Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party‘s favor, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation,” or to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. A motion to dismiss will be denied where the allegations “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
In Count Three, Plaintiffs assert that ProAmpac decreased Plaintiffs’ wages “below the legally-required hourly wage” by forcing Plaintiffs to purchase required safety equipment and tools. (SAC at ¶¶ 116–118.) This decrease, allege Plaintiffs, constitutes a deduction in violation
of
Regardless of whether Plaintiffs’ required purchases constituted “deductions” within the meaning of
Accordingly, the Court dismisses without prejudice Plaintiffs’
II. Count Five: NYLL § 195
Defendants also move under
“A case is properly dismissed for lack of subject matter jurisdiction under
In Count Five, Plaintiffs allege ProAmpac neglected to provide wage statements containing “all of the information” required under
ought to be dismissed because Plaintiffs fail to allege an actual, concrete, and particularized injury-in-fact. (See generally Defs. Mem. at 10–12.)
Article III of the United States Constitution limits the Court‘s judicial powers to resolving “cases or controversies.”
This Court previously held in Imbarrato v. Banta Management Services, Inc., No. 18-CV-5422 (NSR), 2020 WL 1330744 (S.D.N.Y. Mar. 20, 2020) that plaintiffs had Article III standing to assert
v. Ramirez, 141 S. Ct. 2190, 2204–07, 2210–11 (2021)). Instead, the Supreme Court in TransUnion explained that “the mere risk of future harm, standing alone, cannot qualify as a concrete harm.” Id. at 2210–11. To that end, the TransUnion Court further clarified that although an “informational injury” may give rise to standing, a plaintiff must identify “downstream consequences from failing to receive the required information.” Id. at 2214 (internal quotations omitted). Thosе “downstream consequences,” the Second Circuit has held, must show a plaintiff‘s interest in using the information “beyond bringing [this] lawsuit.” Harty, 28 F.4th at 444 (first quoting TransUnion, 141 S. Ct. at 2214, then Laufer v. Looper, 22 F.4th 871, 881 (10th Cir. 2022)).
Plaintiffs fail to sufficiently allege an injury in fact. Although Plaintiffs specifically allege the inaccurate notices delayed Plaintiffs’ ability to enforce their legal rights (and therein prevent or prosecute the alleged wage theft), these harms do not show an interest in using the information “beyond bringing [this] lawsuit.” Harty, 28 F.4th at 444. Meanwhile, Plaintiffs’ monetary harm is better traced as an injury flowing from ProAmpac‘s rounding policy, not ProAmpac‘s inaccurate wage notices. See Quieju v. La Jugueria Inc., No. 23-CV-264 (BMC), 2023 WL 3073518, at *2 (E.D.N.Y. Apr. 25, 2023) (“The injury that plaintiff suffered (i.e., defendants’ failure to properly pay him) is not an injury he sustained because of a lack of the required documents; it is an injury sustained because his employer violated its obligation to pay minimum wage, overtime, and spread-of-hours pay under other, express requirements of fеderal and state law.“). Although ProAmpac‘s inaccurate wage notices may have obscured ProAmpac‘s rounding policy, it is not apparent—short of legal action—how an accurate notice would have dissuaded ProAmpac from executing
have informed him that he was not being paid his required wages. Enlightened by that knowledge, plaintiff then would have demanded his required wages. Having made such a demand, defendants would have then paid him his required wages, and plaintiff would have avoided the injury he suffered by the failure to properly pay him.“). It appears, instead, the allegations do not establish Plaintiffs’ interest in using the information “beyond bringing [this] lawsuit.” Harty, 28 F.4th at 444; see TransUnion, 141 S. Ct. at 2214 (“Moreover, the plaintiffs have identified no ‘downstream consequencеs’ from failing to receive the required information. They did not demonstrate, for example, that the alleged information deficit hindered their ability to correct erroneous information before it was later sent to third parties.“). Because Plaintiffs’ interest in obtaining accurate wage statements is tied solely to bringing the present action, Plaintiffs cannot establish standing for their wage statement claim.
Accordingly, the Court dismisses without prejudice Plaintiffs’
MOTION FOR CONDITIONAL CERTIFICATION
Plaintiffs move for conditional class certification of a FLSA collective action on behalf of “[a]ll current and former employees who worked for ProAmpac at its Walden, NY plant in the converting or printing departments in non-supervisory positions at any time between April 15, 2019 through the date of final judgment in this matter.” (Plfs. Mem. at 1.)
I. Conditional Certification
The FLSA prоvides that “any one or more employees” may bring an action against an employer “for and on behalf of himself or themselves and other employees similarly situated.”
“Although they are not required to do so by the FLSA, district courts ‘have discretion, in appropriate cases, to implement [
The Second Circuit has endorsed a two-step method to determine whether a case should proceed as a collective action under FLSA. See Myers, 624 F.3d at 554. In the first step—commonly known as “conditional certification“—the named plaintiffs must make a “‘modеst factual showing’ that they and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the law,‘” id. at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)), at which point the court may send (or direct plaintiffs’ counsel to send) a notice to potential opt-in plaintiffs. Id. At the second stage, which typically occurs after discovery is completed, the court determines whether the plaintiffs who opted in are in fact “similarly situated” to the named plaintiffs. Id. If not, the court may “de-certif[y]” the collective and
However, as the purpose of this first stage is “merely to determine whether ‘similarly situated’ plaintiffs do in fact exist,” Prizmic v. Armour, Inc., No. 05-CV-2503 (DLI)(MDG), 2006 WL 1662614, at *2 (E.D.N.Y. June 12, 2006), plaintiffs’ burden at the conditional certification stage is “minimal.” Amador v. Morgan Stanley & Co. LLC, No. 11-CV-4326 (RJS), 2013 WL 494020, at *4 (S.D.N.Y. Feb. 7, 2013). “Plaintiffs can meet this burden by showing that ‘there are other employees who are similarly situated with respect to their job requirements and with regard to their pay provisions.‘” Fraticelli v. MSG Holdings, L.P., NO. 13-CV-6518 (JMF), 2014 WL 1807105, at *1 (S.D.N.Y. May 7, 2014) (quoting Myers, 624 F.3d at 555). Documents properly
considered in this inquiry “include plaintiffs’ ‘own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members.‘” Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545, 557–58 (S.D.N.Y. 2013) (quoting Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 661 (S.D.N.Y. 2013)). These documents “must set forth ‘a defendant‘s plan or scheme to not pay overtime compensation’ and must identify ‘by name similarly situated employees.‘” Fernandez v. On Time Ready Mix, Inc., No. 14-CV-4306 (BMC), 2014 WL 5252170, at *1 (E.D.N.Y. Oct. 4, 2014) (quoting Sobczak v. AWL Indus., Inc., 540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007)). But “[i]n making this showing, ‘nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan’ is required.” Sexton v. Franklin First Fin., Ltd., No. 08-CV-4950 (JFB)(ARL), 2009 WL 1706535, at *3 (E.D.N.Y. June 16, 2009) (quoting Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005)).
Consistent with the “minimal” burden of proof assigned to plaintiffs at the conditional certification stage, the court “should not weigh the merits of the underlying claims,” Hamadou, 915 F. Supp. 2d at 662 (citing Lynch v. United Servs. Auto Ass‘n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)), and should not “resolve factual disputes, decide substantial issues going to the ultimate merits, or make credibility determinations.” Jackson v. Bloomberg, L.P., 298 F.R.D. 152, 158 (S.D.N.Y. 2014) (internal quotation marks omitted). Accordingly, where there is a conflict between the parties as to the facts underlying plaintiffs’ wage-and-hour claims, the court should treat plаintiffs’ attestations as true. See Cortes v. New Creators, Inc., No. 15-CV-5680 (PAE), 2015 WL 7076009, at *1 n.1 (S.D.N.Y. Nov. 12, 2015).
However, “[w]hile plaintiff‘s burden at this stage is modest, it is not non-existent.” Khan v. Airport Mgmt. Servs. LLC, No. 10-CV-7735 (NRB), 2011 WL 5597371, at *5 (S.D.N.Y. Nov. 16, 2011). “The ‘modest factual showing’ cannot be satisfied simply by ‘unsupported assertions.‘”
Myers, 624 F.3d at 555 (quoting Dybach, 942 F.2d at 1567). “Conclusory allegations are not enough.” Morales v. Plantworks, Inc., No. 05-CV-2349 (DC), 2006 WL 278154, at *3 (S.D.N.Y. Feb. 2, 2006) (quoting Wright, Miller & Kane, 7B Federal Practice and Procedure § 1807 (3d ed. 2002)).
Plaintiffs provide sufficient factual detail to enable the Court to conclude, at least preliminarily, that they are similarly situated to the other current and former employees in the converting department at the Walden facility. At the outset, Plaintiffs include information regarding duties and hours worked of those employed in the
Plaintiffs also allege, and ProAmpac does not dispute, that employees in the converting department were subject to the same rounding policy. Specifically, Plaintiffs attest that ProAmpac (1) required employees to arrive early and begin work five-to-fifteen minutes ahead of their scheduled shift times, but (2) did not compensate employees for that extra time and instead rounded Plaintiffs’ time in a manner that always benefited ProAmpac. (Jackson Aff. at ¶¶ 9–15; Perez Aff. at ¶¶ 9–15; Cruz Aff. at ¶¶ 7–14.) ProAmpac counters that (1) Plaintiffs’ allegations are belied by time records which show Plaintiffs “frequently punched in at or very near their scheduled start time, sometimes after,” and (2) the rounding policy “often inured to the employees’ benefit.” (Defendants’ Memorandum of Law in Opposition to Motion to Conditionally Certify (“Defs. Opp.“) at 5, ECF No. 36 (emphasis in original).)
Although ProAmpac disputes whether it indeed implemented any policy to require employees аrrive early for their scheduled shifts, ProAmpac‘s position is countered by Plaintiffs’
own personal experiences and daily observations. E.g., Bittencourt v. Ferrara Bakery & Cafe Inc., 310 F.R.D. 106, 114 (S.D.N.Y. 2015) (collecting cases) (“[W]hile allegations supporting certification must be specific rather than conclusory, a plaintiff may satisfy her burden with personal observations.” (internal citations omitted)). Moreover, even if time records showed Plaintiffs consistently arrived less than five minutes before work, it is conceivable that ProAmpac articulated an aspirational policy that it did not intend to enforce with disciplinary measures. Plaintiffs rely upon personal knowledge to allege the existence of an early arrival policy, and ProAmpac has not overwhelmed the Court with facts to the contrary. Whether the policy in fact existed is a factual determination that the Court may resolve at a later stage. See, e.g., Hong v. Haiku @ WP Inc., 582 F. Supp. 3d 117, 126 (S.D.N.Y. 2022) (“Consistent with the minimal burden of proof assigned to plaintiffs at the conditional certification stage, the court should not weigh the merits of the underlying claims.“) (internal quotations and citations omitted).
Whether an early arrival policy in fact existed, however, does not lie at the crux of Plaintiffs’ claims; instead, Plaintiffs’ claims rise and fall with whether ProAmpac‘s rounding policy in fact deprived Plaintiffs of compensation for actual hours worked. (SAC at ¶¶ 47–51.) Relying on “incontrovertible time and pay records,” ProAmpac takes issue with Plaintiffs’ allegation that ProAmpac rounded time in a manner that “always” inured to ProAmpac‘s benefit. (Defs. Opp. at 5.) Far from “incontrovertible,” however, these time records reveal a different story than the one ProAmpac tries to tell. For one, ProAmpac concedes that “[t]here are also instances when the neutral rounding policy did inure to ProAmpac‘s benefit.” (Defs. Opp. at 5 n.3.) To that end, Plaintiffs argue, “[I]n fact, Plaintiff[s‘] work-time was more often rounded-down and, therefore, Plaintiffs provided uncompensated labor to Defendants for multiple minutes—sometimes as many as 15 minutes—each day.” (Plaintiffs’ Reply Memorandum of Law in Further
Support of Motion to Conditionally Certify (“Plfs. Reply“) at 6, ECF No. 35.) Although Plaintiffs offer little more than personal knowledge and daily observations to substantiate their allegations,
Whereas Plaintiffs leverage time records to substantiate their personal knowledge regarding ProAmpac‘s rounding policy, Plaintiffs are unable to substantiate their allegations regarding their “tools of the trade” claim. Plaintiffs attest that ProAmpac “required other employees in the converting department to pay out of pocket for necessary expenses” and “did not completely reimburse them for those expenses.” (Jackson Aff. at ¶ 19; Perez Aff. at ¶ 22; Cruz Aff. at ¶ 17.) Plaintiffs add that this knowledge is based on “overhear[ing] workers saying it.” (Jackson Aff. at ¶ 19; Perez Aff. at ¶ 22.) Plaintiffs’ showing is devoid of important information.
For example, Plaintiffs do not provide any information regarding who they overheard or specifically what they overheard. Plaintiffs also fail to proffer how much money other employees spent on out-of-pocket expenses, how often other employees incurred these expenses, and how these expenses “remove [these employees’ wages] outside of the minimum wage requirements.” Oram v. SoulCycle LLC, 979 F. Supp. 2d 498, 507 (S.D.N.Y. 2013); see supra at 6. Nothing in the record substantiates Plaintiffs’ allegations that othеr employees were forced to purchase equipment and tools which therein decreased other employees’ wages below minimum wage. Even if Plaintiffs show “that they were” subject to an unlawful policy where ProAmpac failed to properly reimburse Plaintiffs for “tools of the trade,” Plaintiffs “have failed to make a sufficient showing that the same was true for other potential plaintiffs.” Levinson v. Primedia Inc., No. 02-CV-2222 (CBM), 2003 WL 22533428, at *1 (S.D.N.Y. Nov. 6, 2003) (emphasis in original).
The same conclusion applies insofar as Plaintiffs move to conditionally certify members of the printing department. Plaintiffs have provided no information regarding the duties of printing department employees. Nor have Plaintiffs proffered the basis of their personal knowledge regarding ProAmpac‘s policies as applied to the printing department. Moreover, Plaintiffs do not even attest that printing department employees were forсed to pay out-of-pocket expenses. (E.g., Jackson Aff. at ¶ 19 (“To my knowledge, ProAmpac also required other employees in the converting department to pay out of pocket for necessary expenses for doing their jobs.“)
are assigned to printing employees such that they would need to arrive early to work? Do printing employees work under the same supervisors and managers? Was an early arrival policy communicated in meetings to both the converting department and printing department? Were Plaintiffs at those meetings? Are Plaintiffs aware of any printing department employees who consistently arrived early? Unlike for converting department employees, Plaintiffs cannot answer these questions solely on the basis of their own personal knowledge and time records. As such, the Court will not conditionally certify printing department employees as members of the FLSA collective. See, e.g., Hong v. Haiku @ WP Inc., 582 F. Supp. 3d 117, 128 (S.D.N.Y. 2022) (“While he does allege that these other non-managerial employees often worked overtime, the Court cannot fairly infer from that fact alone that they labored under similar working conditions and thus suffered the same violations of the FLSA—namely, that they were inadequately paid.“).
Accordingly, at this stage, this Court finds it appropriate to grant conditional certification of a collective that inсludes only current and former employees of the converting department who held non-supervisory positions. At this stage, the Court will not conditionally certify a collective that includes employees of the printing department. Moreover, the conditional certification only applies to the claim that ProAmpac violated the FLSA by failing to (1) compensate Plaintiffs and others similarly-situated for all hours worked and (2) pay Plaintiffs the overtime premium rate for that unpaid time. The conditional certification does not include the claim that ProAmpac violated the FLSA by failing to reimburse Plaintiffs for purchasing required work equipment and tools.
II. Time Period for Conditional Collective Action
Plaintiffs ask the Court to authorize a six-year notice period for the notice of the FLSA collective action. (Plfs. Mem. at 14–16.) Because Plaintiffs have also asserted NYLL claims and indicated an intent to seek certification of a Rule 23 class for those claims, Plaintiffs argue a six-
year notice period “will not only effectuate notice to potential opt-in plaintiffs for the FLSA class—some of whom may be able to demonstrate issues of equitable tolling that allow their claims past the statute of limitations to be adjudicated—but will also provide both parties with an efficient means to evaluate their positions with respect to an anticipated New York Labor Law class.” (Id. at 15.) Lastly, Plaintiffs ask the Court to “time the starting of opt-in plaintiffs’ claims –including those already filed – to the filing of the Complaint rather than to the filing of the consent to sue forms.” (Id.)
Ordinarily, the FLSA statute of limitations is two years.
(or, at most, three years if a showing of willfulness is made).“).) As such, the FLSA statute of limitations is three years. Gaspar v. Pers. Touch Moving, Inc., No. 13-CV-8187 (AJN), 2014 WL 4593944, at *7 (S.D.N.Y. Sept. 15, 2014) (Nathan, J.) (concluding FLSA‘s three-year limitations period was appropriate becausе “Plaintiff alleges,” in one paragraph of the complaint, that “Defendants’ FLSA violations were willful“).
Despite the three-year statute of limitations, Plaintiffs ask the Court, as stated above, to authorize a six-year notice period. (Plfs. Mem. at 14–16.) “Cases adopting six-year periods have been based on supposed ‘economy of providing notice to plaintiffs with FLSA claims who may also have NYLL claims subject to a six-year statute of limitations,’ while cases using three-year periods ‘have cited the confusion caused by notifying plaintiffs who potentially have two disparate claims with different statutes of limitations, along with the inefficiency of providing notice to plaintiffs whose claims may well be time-barred.‘” Ramos v. Platt, No. 13-CV-8957 (GHW), 2014 WL 3639194, at *4 (S.D.N.Y. July 23, 2014) (quoting Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545, 563–64 (S.D.N.Y. 2013) (collecting cases)). Exercising its “discretion to facilitate notice of FLSA claims,” which is “premised on [the Court‘s] case management authority,” the Court declines to authorize a six-year notice period at this time. Id. (declining to authorize six-year notice period “where no motion for class certification of the NYLL claims is simultaneously pending“).
Plaintiffs next ask the Court “permit notice to be keyed to the three-year period prior to the filing of the complaint,” “rather than to the filing of the consent to sue forms.” (Plfs. Mem. at 15–16 (citations omitted).) The “statute of limitations for opt-in plaintiffs’ FLSA claims runs until they actually join the lawsuit; it does not relate back to the filing of the named plaintiff‘s complaint.” E.g., Gaspar, 2014 WL 4593944, at *7 (citations omitted). However, because
“equitable tolling issues often arise as to individual opt-in plaintiffs[,]... courts frequently permit notice to be keyed to the three-year period prior to the filing of the complaint, with the understanding that challenges to the timeliness of individual plaintiffs’ actions will be entertained at a later date.” Id. (citation and internal quotation marks оmitted). Defendants “will not be prejudiced by a potentially over-inclusive notice” by using the date of the complaint‘s filing because it would “increase the likelihood that more party plaintiffs with timely claims consent
Here, there is a particularly strong basis for equitable tolling given the delay in ruling on this motion. See Yap v. Mooncake Foods, Inc., 146 F. Supp. 3d 552, 565 (S.D.N.Y. 2015). Indeed, some courts in this district “have found that the delay in ruling on a motion for conditional approval, coupled with the plaintiffs’ diligence and avoiding prejudice to potential plaintiffs, is enough to grant equitable tolling.” Guzman v. Three Amigos SJL Inc., 117 F. Supp. 3d 516, 528 (S.D.N.Y. 2015) (citations omitted). Moreover, ProAmpac does not appear to object to Plaintiffs’ request for relatiоn back to the filing of the Complaint.
Accordingly, the Court will authorize a three-year notice period and concludes that the three-year statute of limitations should extend from the date of the filing of Plaintiffs’ complaint.
III. Production of Potential Opt-In Plaintiff Information
Plaintiffs next ask the Court to order ProAmpac to produce to Plaintiffs “a spreadsheet, in a Microsoft Excel format, of all potential opt-in plaintiffs with the names, last known addresses,
last known telephone numbers, last known email addresses, and dates of employment, within fifteen days of the Court‘s Order granting conditional certification.” (Plfs. Mem. at 17.)
Courts in this Circuit “routinely grant... motions to compel production of the names and addresses of potentially similarly situated employees who may wish to ‘opt-in’ to a collective action” following conditional certification. Anglada v. Linens ‘N Things, Inc., No. 06-CV-12901 (CM)(LMS), 2007 WL 1552511, at *7 (S.D.N.Y. Apr. 26, 2007) (collecting cases), report and recommendatiоn adopted (May 22, 2007). Likewise, courts “commonly grant” requests for production of mailing addresses and dates of employment for the potential opt-in plaintiffs. See Cortes v. New Creators, Inc., No. 15-CV-5680 (PAE), 2015 WL 7076009, at *4 (S.D.N.Y. Nov. 12, 2015).
While courts in this District vary in their willingness to order production of telephone numbers and email addresses, it is increasingly clear that this information permits a more efficient means of providing notice than first class mail. See, e.g., Diatta v. Iguana New York Ltd., 2016 WL 2865132, at *6 (S.D.N.Y. May 10, 2016) (“Courts routinely order discovery of names, addresses, and telephone numbers in FLSA actions.“); Racey v. Jay-Jay Cabaret, Inc., No. 15-CV-8228 (KPF), 2016 WL 3020933, at *10 (S.D.N.Y. May 23, 2016) (ordering defendants to provide “a list of the names, addresses, telephone numbers, email addresses, and dates of employment for potential class members“); Hernandez v. NGM Mgmt. Grp. LLC, No. 12-CV-7795 (RWS), 2013 WL 5303766, at *5 (S.D.N.Y. Sept. 20, 2013) (ordering defendants to produce “a computer-readable list of the names, addresses, compensation rates, telephone numbers, and dates of employment” for all potential opt-in plaintiffs). In addition, “it is by now fairly clear that telephone numbers and email addresses permit a more efficient means of providing notice than mailing
addresses alone, while minimally intruding on the employees’ privacy.” Guevara v. Fine & Rare Operations LLC, No. 20-CV-5330 (BCM), 2022 WL 103376, at *9 (S.D.N.Y. Jan. 10, 2022).
IV. Notice and Consent Form
a. Methods of Notice
Plaintiffs ask the Court for permission to translate the proposed notice into Spanish. (Plfs. Mem. at 19–20.) “Generally, courts permit notice to be ‘translated into the mother tongue of non-English speaking groups of рotential plaintiffs.‘” See Valerio v. RNC Indus., LLC, 314 F.R.D. 61, 76 (E.D.N.Y. 2016). ProAmpac does not object. Plaintiffs’ unopposed request to so translate the notices is granted.
Plaintiffs next ask the Court permit Plaintiffs to send notices to all potential opt-in plaintiffs by mail, email, text message, and WhatsApp. (Plfs. Mem. at 18–19.) Plaintiffs also seek permission to post notices at the Walden facility and on Plaintiffs’ counsel‘s website. (Id. at 21–23.)
The Court agrees that disseminating the Notice by mail, email, text message, and WhatsApp is appropriate. See Qiang Lu v. Purple Sushi Inc., 447 F. Supp. 3d 89, 97 (S.D.N.Y. 2020) (permitting notice to be “disseminated in any relevant language via mail, email, text, or social media platform“). WhatsApp is more akin to a standard, direct messaging platform than a social media platform and will help distribute the notice to potential opt-in plaintiffs who may use
WhatsApp as an equivalent to standard text messages. Cf. Aleman-Valdivia v. Top Dog Plumbing & Heating Corp., No. 20-CV-421 (LDH)(MMH), 2021 WL 4502479, at *11 (E.D.N.Y. Sept. 30, 2021) (permitting issuance of notices via text and WhatsApp “because of thе similarities between standard SMS text message and WhatsApp“). Similarly, posting the notice at Defendants’ physical location is a generally acceptable form of distributing information related to such notices, and is therefore approved. See Ni v. Red Tiger Dumpling House Inc, No. 19-CV-3269 (GRB)(AKT), 2020 WL 7078533, at *12 (E.D.N.Y. Nov. 30, 2020) (“Courts in the Second Circuit regularly approve plaintiffs’ requests to post notices and consent forms in non-public areas where potential collective members are likely to congregate, such as clock-in stations or break rooms.” (internal citations and quotation marks omitted)).
The Court, however, will not authorize Plaintiffs to post the notice on Plaintiffs’ counsel‘s website. As this Court has previously suggested, it is “unpersuaded that such means are necessary, and shares many of the concerns expressed by other courts in the Second Circuit in response to such requests.” Hong v. Haiku @ WP Inc., 582 F. Supp. 3d 117, 135 (S.D.N.Y. 2022); see Rieske v. Gov‘t Emps. Ins. Co. Inc., No. 21-CV-4122 (JMA)(AYS), 2022 WL 17127745, at *9 (E.D.N.Y. Nov. 22, 2022) (finding “the creаtion of a website that would permit potential opt-in plaintiffs to electronically submit a consent form to be unnecessary since potential opt-in plaintiffs are likely to be reached by the several forms of notice granted,” including mail, email, and text message).
b. Content of Notice
ProAmpac lodges two objections to the content of Plaintiffs’ proposed notice, asking for the Court to order that the notice (1) “apprise[]” potential opt-in plaintiffs “of their discovery obligations, including the fact that they could be deposed or required to participate in the written
discovery
“Neither the [FLSA] statute, nor the courts, specifically outline what form court-authorized notice should take, nor what provisions the notice should contаin.” Lee v. ABC Carpet & Home, No. 00-CV-984 (DAB), 2008 WL 2073932, at *1 (S.D.N.Y. May 9, 2008). “Under the FLSA, the content of the notice is left to the court‘s discretion.” Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 59 (S.D.N.Y. 2009); accord Lopez v. JVA Indus., Inc., No. 14-CV-9988 (KPF), 2015 WL 5052575, at *4 (S.D.N.Y. Aug. 27, 2015) (noting that the FLSA “vests the district court with broad discretion” with respect to the notice of pending litigation to be provided to potential opt-in plaintiffs).
“The overarching policies of the FLSA‘s collective suit provisions require that the proposed notice provide ‘accurate and timely notice concerning the pendency of the collective action, so that [potential plaintiffs] can make informed decisions about whether to participate.‘” Whitehorn v. Wolfgang‘s Steakhouse, Inc., 767 F. Supp. 2d 445, 450 (S.D.N.Y. 2011) (quoting Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989) (citations omitted)). With that in mind, the notice generally should contain:
a description of some or all of the following: (1) the purpose of the notice; (2) the nature of the lawsuit filed and the relief being sought; (3) the proposed class composition; (4) the legal effect of joining the lawsuit; (5) the fаct that the court has not taken any position regarding the merits of the lawsuit; (6) how to join the lawsuit; (7) the purely voluntary nature of the decision and the legal effect of not joining the lawsuit; (8) the prohibition against retaliation; and (9) the relevant contact information for any inquiries.
Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561, 566 (S.D.N.Y. 2012). Courts in this District have also held that the notice should include a warning that opt-in plaintiffs may be required to
provide information, appear for deposition, or testify in court. See Salomon, 847 F. Supp. 2d at 567 (modifying proposed notice to explain such a possibility).
In light of ProAmpac‘s objections, the notice shall be amended to include the following language: “If you join this lawsuit, you may be asked to give testimony and information about your work for [ProAmpac], to help the Court decide whether you are owed any money.” Bethel v. BlueMercury, Inc., No. 21-CV-2743 (KPF), 2022 WL 3594575, at *15 (S.D.N.Y. Aug. 22, 2022). The notice shall also be amended to include defense counsel‘s contact information. Id. (collecting cases).
c. Opt-In Period and Reminder
Plaintiffs asks for permission to provide 90 days for potential opt-in plaintiffs to submit their consent to sue forms. (Plfs. Mem. at 20–21.) Plaintiffs also ask for permission to send a reminder to non-responsive potential opt-in plaintiffs. (Id. at 23–24.)
The standard opt-in period in this Circuit, following conditional certification, is 60 days. See Yap, 146 F. Supp. 3d at 566–67 (“Courts in this Circuit routinely restrict the opt-in period to sixty days.“) (quoting Fa Ting Wang v. Empire State Auto Corp., No. 14-CV-1491 (WFK)(VMS), 2015 WL 4603117, at *11 (E.D.N.Y. July 29, 2015) (collecting cases)). Courts adopt a 90-day opt-in period only where the parties agree or if special circumstances require it. See Gui Zhen Zhu v. Matsu Corp., 424 F. Supp. 3d 253, 272 (D. Conn. 2020).
become aware of the action from coworkers or posted notices at the workplace.” (Id. at 20–21.) Plaintiffs’ argument, however, is speculative and generalized; Plaintiffs do not proffer any factual basis to suggest ProAmpac in fact has had a higher rate of turnover. See Gui Zhen Zhu, 424 F. Supp. 3d at 272 (collecting cases) (ordering 60-day opt-in period but noting that the court “may entertain opt-in plaintiffs’ untimely motions to join the collective action ‘on a showing of good cause for the delay‘” (quoting Whitehorn v. Wolfgang‘s Steakhouse, Inc., 767 F. Supp. 2d 445, 449–450 (S.D.N.Y. 2011))). Accordingly, the opt-in period is 60 days. Nonetheless, the Court will allow Plaintiffs to send a reminder to non-responsive potential opt-in plaintiffs halfway through the opt-in period. See Hong v. Haiku @ WP Inc., 582 F. Supp. 3d 117, 134 (S.D.N.Y. 2022) (citing Chhab v. Darden Rests., Inc., No. 11-CV-8345 (NRB), 2013 WL 5308004, at *16 (S.D.N.Y. Sept. 20, 2013) (finding reminder appropriate “[g]iven that notice under the FLSA is intended to inform as many potential plaintiffs as possible of the collective action and their right to opt-in“)).
CONCLUSION
For the foregoing reasons, the Court GRANTS ProAmpac‘s partial motion to dismiss. Plaintiffs’
The Court GRANTS in part and DENIES in part Plaintiffs’ motion to conditionally certify. Plaintiffs’ motion is GRANTED insofar as the conditionally certified class includes current and former employees of the converting department who held non-supervisory positions. Plaintiffs’ motion is likewise GRANTED insofar as the conditional certification applies to the claim that ProAmpac violated the FLSA by failing to (1) compensate Plaintiffs and others similarly-situated for all hours worked and (2) pay Plaintiffs the overtime premium rate for that unpaid time.
Plaintiffs’ motion is DENIED with respect to the conditional certification of non-supervisory employees of the printing department. Plaintiffs’ motion is also DENIED with respect
to the claim that ProAmpac violated the FLSA by failing to reimburse Plаintiffs for purchasing required work equipment and tools.
Accordingly, it is hereby ORDERED
- On or before October 16, 2023, Defendants shall produce to Plaintiffs’ counsel a spreadsheet, in a Microsoft Excel format, of all potential opt-in plaintiffs with the names, last known addresses, last known telephone numbers, last known email addresses, and dates of employment, of all current and former employees of the converting department who held non-supervisory positions on or after April 15, 2019.
- On or about November 6, 2023, the parties shall, after meeting and conferring, prepare and submit to the Court, for approval, a revised form of notice (and related consent form) incorporating the Court‘s rulings delineated elsewhere in this order.
The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 28 and 32.
SO ORDERED.
Dated: September 25, 2023
White Plains, New York
NELSON S. ROMÁN
United States District Judge