OPINION AND ORDER
Thе plaintiffs, Frederick L. Winfield, Zultna G. Muniz, James Steffensen, Ado-
I.
The plaintiffs were previously employed by the defendant as “Personal Bankers.” (Winfield Am. Compl. ¶ 12; Ruiz Compl. ¶ 9.) They bring this motion for conditional certification with respect to two actions that have been consolidated for the purposes of this motion and general pre-trial proceedings., In the Ruiz action, plaintiff Digna Ruiz, a resident of New York, brings claims under the FLSA and the New York Labor Law (“NYLL”), § 650 et seq. (Ruiz Compl. ¶¶ 32-41.) She seeks to bring her FLSA claims on behalf of all current and former Personal Bankers employed by the defendant nationwide since August 6, 2007, and her NYLL claims on behalf of all current and former Personal Bankers employed in the defendant’s New York branches since August 6, 2004. (Ruiz Compl. ¶¶ 3-4.) Dara Ho, also a New York resident, has opted-in to this action.
In the Winfield action, рlaintiffs Frederick Winfield, Zulma G. Muniz, James Steffensen, and Adoram Shen bring claims under the FLSA, purportedly on behalf of all Personal Bankers employed at the defendant’s branches nationwide since September 22, 2007.
As Personal Bankers, the plaintiffs’ primary job responsibility was to sell the defendant’s financial products and services to the general public in Citibank branches. ('Winfield Am. Compl. ¶ 21; Ruiz Compl. ¶ 15). The plaintiffs were employed in several different Citibank branches throughout the United States. The plaintiffs allege that all Personal Bankers were classified as “non-exempt” employees and were therefore eligible for overtime payments under federal and state laws. (Winfield Am. Compl. ¶ 22; Ruiz Compl. ¶ 9.) The plaintiffs contend that the defendant engaged in a policy and practice of failing to pay overtime compensation for all hours worked in excess of forty hours per week.
The plaintiffs assert that the defendant employed a “dual-edged” policy of strictly limiting the amount of overtime that Personal Bankers could accrue while imposing rigorous sales quotas that could not feasibly be met in a forty-hour work week. The plaintiffs contend that Personal Bankers faced an untenable position where they needed to work overtime to meet sales quotas that, if not met, would subject them to discipline or termination, but were told
The plaintiffs now seek an order pursuant to 29 U.S.C. § 216(b) granting conditionаl certification and authorizing the plaintiffs to send notice to all Personal Bankers identified on a Class List provided by the defendant, representing approximately 4,000 Personal Bankers employed by the defendant nationwide during the FLSA class periods identified in the complaints. (Deck of Murielle J. Steven Walsh (‘Walsh Deck”), Ex. 7.) The plaintiffs have included a proposed notice to all prospective class members and consent to joinder. (Walsh Deck Ex. 2.)
The defendant opposes the plaintiffs’ motion, arguing that the plaintiffs have failed to show that they are similarly situated to one another and to potential opt-in plaintiffs nationwide. The defendant also contends that the plaintiffs have not shown that they were subject to a common, unlawful policy or practiсe rather than merely to anomalous FLSA violations committed by individual, rogue managers. The defendant argues that, even if the Court does conditionally certify the class, it should not authorize nationwide notice but should instead limit notice to those branches where the plaintiffs or declarants personally worked. Finally, the defendant objects to certain aspects of the plaintiffs’ proposed notice.
The defendant also brings a motion to strike all hearsay statements relied upon by the plaintiffs in their papers in connection with this motion.
II.
Under § 216(b) of the FLSA, employees may maintain actions to recover unpaid wages collectively where the employees are “similarly situated” and give consent in writing “to become ... a party [to the action] and such сonsent is filed [with the Court].” 29 U.S.C. § 216(b). “District courts have discretion, in appropriate cases, to implement § 216(b) by facilitating notice to potential plaintiffs of the pendency of the action and of their opportunity to opt in as represented plaintiffs.” Klimchak v. Cardrona, Inc., No. 09 Civ. 4311,
In exercising its discretion at the conditional certification stage, “the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Cunningham v. Elec. Data Sys. Corp.,
If the plaintiffs demonstrate that “similarly situated” employees exist, the Court should conditionally certify the class, order that appropriate notice be given to putative class members, and the action should continuе as a “collective action throughout the discovery process.” Cunningham,
III.
The defendant moves to strike all hearsay statements relied upon by the plaintiffs that are contained in the deposition testimony and declarations submitted in support of this motion. The defendant contends that this testimony recounts statements made by others, namely statements by other Personal Bankers that they were not paid for all overtime hours worked, and statements by Branch Managers allegedly repeating what Area or Regional Managers told them about overtime policies.
On a motion for conditional certification “courts in this Circuit regularly rely on [hearsay] evidence to determine the pro
Thus, it is unnecessary to strike any hearsay statements at this preliminary stage of the litigation. The Court will afford any such hearsay statements the weight to which they are entitled.
IV.
A.
In this case, the plaintiffs have satisfied their minimal burden of showing that they are similarly situated to one another and to potential opt-in plaintiffs. Five plaintiffs, one opt-in plaintiff,
Other courts have found plaintiffs to be similarly situated when they made common allegations that dual-edged policies similar to those alleged here effectively required them to work uncompensated overtime. See Burkhart-Deal v. Citifinancial, Inc., No. 07 Civ. 1747,
The defendant contends, however, that the plaintiffs are not similarly situated to one another and to other potential opt-in plaintiffs because their testimony reveals inconsistencies regarding the plaintiffs’ motivеs, for working overtime; how much overtime, if any, they were paid; and what job duties they performed, among other purported discrepancies. However, the relevant “issue ... is not whether Plaintiffs and [potential opt-in plaintiffs] were identical in all respects, but rather whether they were subjected to a common policy to deprive them of overtime pay when they worked more than 40 hours per week.” Raniere v. Citigroup, Inc., No. 11 Civ. 2448,
B.
The defendant argues, however, that the plaintiffs have not made a modest factual showing, thаt they and potential opt-in plaintiffs are similarly situated in that they were subject to “a common policy or plan that violated the law.” Myers,
The defendant first contends that the Court should not rely on facially lawful policies of limiting the amount of overtime accrued as a basis for presuming a common pattern or practice of FLSA violations. The defendant emphasizes that it has a written policy requiring that all overtime hours worked be recorded and paid. However, the existence of a formal policy that is facially unlawful is not a prerequisite for conditional certification. Instead, it is sufficient to shоw that a facially lawful policy was implemented in an unlawful manner, resulting in a pattern or practice of FLSA violations. Indeed, several courts have held that “de facto policies” of this nature can be actionable under the FLSA. See Burkhart-Deal,
The plaintiffs here concede that the defendant’s policies of strictly limiting the number of overtime hours that could be accrued and of requiring Personal Bankers to meet strict sales quotas were lawful on their face. The plaintiffs do not contend that these policies themselves constitute the “common policy or plan that violated the law” that they must show for conditional certification. Myers,
The defendant contends, however, that even if the plaintiffs and declarants were themselves subject to a common, unlawful policy or practice, the de facto policy alleged here cannot serve as a basis for inferring that their experiences are typical of Personal Bankers nationwide. In support of this argument, the defendant cites several cases that have refused to grant nationwide conditional certification where the plaintiffs made similar allegations that a facially lawful policy resulted in employees being effectively required to work uncompensated overtime. However, none of those cases held that facially lawful policies like those at issue here could never serve as a basis for inferring a nationwide pattern or practice of FLSA violations. Instead, those cases held that certain aspects of the facially lawful policies at issue or certain deficiencies in the evidence presented made it inappropriate to infer that the FLSA violations alleged by individual plaintiffs were likely to be widespread across a nationwide class. See, e.g., Eng-Hatcher v. Sprint Nextel Corp., No. 07 Civ. 7350,
Here, in contrast, the plaintiffs have made a stronger showing that the defendant’s facially lawful policies of limiting overtime and enforcing strict sales quotas resulted in widespread FLSA violations. Unlike in the cases cited by the defendant, the plaintiffs here provide testimony from Personal Bankers employed in different branch locations across the nation. The five plaintiffs, one opt-in plaintiff, and four declarants have worked, collectively, in thirteen different branches in six of the thirteen states where the defendant operates, as well as the District of Columbia, and allege that they were not properly compensated for overtime worked at each of these locations. Moreover, three of the plaintiffs and declarants testify that they are aware of other Personal Bankers who similarly worked overtime without proper compensation. (Ho Dep. 208-09, 263; Steffensen Dep. 187-91; Wilson Decl. ¶¶ 12-13.) The plaintiffs also submit emails indicating that FLSA violations may have occurred at other branch locations. As described above, an email from оne Branch Manager at the Richmond Hill, New York branch expressed concern that Personal Bankers at the branch had been working unpaid overtime, and a follow-up email referenced three affected individuals by name. (Walsh Suppl. Reply Decl. Ex. 15.) In addition, an email from a Personal Banker at the District of Columbia branch states that his Branch Manager had instructed him to falsify his timesheets to indicate that he had not worked overtime. (Walsh Suppl. Reply Decl. Ex. 17.) Thus, in total, the evidence produced by the plaintiffs spans over a dozen branches and six states, as well as the District of Columbia.
Moreover, in this case, the nature of the defendant’s facially lawful policies supports the plaintiffs’ allegations that those policies caused managers to commit FLSA violations. The plaintiffs here have offered evidence that those managers who allegedly committed FLSA violations did so because they were instructed, compelled, forced, or encouraged to do so by the policies of preventing accrual of overtime while still requiring Personal Bankers to meet rigorous sales goals. Several plaintiffs testified that their Branch Managers, in instructing them not to report overtime or in refusing to approve timesheets reflecting ovеrtime hours worked, linked these actions to a directive from regional management to keep overtime costs to a minimum. For example, plaintiff Muniz stated that her Branch Manager told her
The defendant next contends that, because the defendant had a written policy requiring payment for all overtime worked, any violations of this policy must have been anomalous incidents instigated by rogue managers. However, the existence of a formal policy of requiring overtime pay should not immunize the defendant where the plaintiffs have presented evidence that this policy was commonly violated in practice. See, e.g., BurkhartDeal,
Conditional certification is appropriate even though the plaintiffs allege that the FLSA violations were caused by a widespread de facto policy carried out by individual managers. See Falcon,
It simply cannot be that an employer may establish policies that create strong incentives for managers to encourage or allow employees to work off-the-clock, and avoid a FLSA collective action because a large number of employees at a number of different stores are affected. To a certain extent, any large class of employees working for a nationwide employer alleging FLSA overtime violations will encounter these difficulties, and there is no indication that Congress intended section 216 to only allow small collective actions involving unpaid overtime to proceed.
The plaintiffs need not show that “all managers nationwide [acted] in lock
The plaintiffs have therefore made a modest factual showing that they and potential opt-in plaintiffs were subject to an unlawful policy or practice whereby they were effectively required to work uncompensated overtime.
C.
The defendant also contends that the plaintiffs have not made a modest factual showing that they were subject to an unlawful common policy or practice because they have not satisfied the commonality requirement as articulated in the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, — U.S. -,
However, the stringent requirements for class certification under Rule 23 are not identical to the minimal burden that plaintiffs carry on a motion for conditional certification under § 216(b) of the FLSA. Courts in this Circuit have repeatedly emphasized that the more exacting Rule 23 requirements are not applicable to conditional certification motions. See Myers,
Thus, to make a modest factual showing that they were subject to a “com
V.
The defendant also objects to certain aspects of the plaintiffs’ proposed notice. The defendant contends (1) that notice should only be provided to those Personal Bankers employed within three years of the date the notice was mailed rather than within three years of the date the Ruiz complaint was filed; and (2) that notice should not extend to Personal Bankers whose claims would be time barred under the three-year FLSA statute of limitations but not under the six-year New York Labor Law statute of limitations.
With respect to the defendant’s first objection, it is true that, because the three-year statute of limitations period for willful FLSA violations runs for each individual plaintiff until that plaintiff consents to join the action, notice should generally be directed to those employed within three years of the date of the mailing of the notice. See 29 U.S.C. § 255; Whitehom v. Wolfgang’s Steakhouse, Inc.,
It is also permissible to extend the notice period to six years for those Personal Bankers who were employed in New York and might therefore have New York Labor Law claims. Because the plaintiff in the Ruiz action also brings state law NYLL claims, that are governed by a six-year statute of limitations, this Court may exercise supplemental jurisdiction over those claims pursuant to 28 U.S.C. § 1367. There may be a number of employees with both timely FLSA and state law claims, and several courts in this Circuit have deemed it appropriate to grant six-year rather than three-year notice periods in such circumstances. See, e.g., Schwerdtfeger,
The defendant alludes to other potential defects in the plaintiffs’ propоsed notice.
CONCLUSION
The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the defendant’s motion to strike hearsay statements is denied without prejudice. The plaintiffs’ motion for conditional certification of an FLSA collective action pursuant to § 216(b) of the FLSA, and for court-authorized notice is granted. The defendant’s request to amend the Proposed Notice to the putative class is denied without prejudice to the parties’ ability to present any further disagreements to the Court within thirty (30) days of the date of this Order. The defendant is directed to supplement the Class List to include Personal Bankers who worked at New York branches from August 6, 2004 to the present who do not already appear on the list. The Clerk is directed to close Docket No. 33 in Case No. 10 Civ. 5950.
SO ORDERED.
January 27, 2012
Notes
. The Winfield action also asserts claims under the Employee Retirement Income Security Act ("ERISA”), 29 U.S.C. § 1001 et seq., which are not at issue on this motion.
. The plaintiffs refer to the managers at their individual branches as "Branch Managers” and to those managers in charge of a specific region as "Regional Managers” or "Area Managers.”
. The defendant contends that the plaintiffs should be required to meet a mоre exacting standard because substantial discovery has already been conducted in this case. However, the defendant does not cite any case in this Circuit that has adopted this approach. Instead, the case law is clear that a heightened standard is not appropriate during the first stage of the conditional certification process and should only be applied once the entirety of discovery has been completed. See, e.g., Harper v. Gov’t Employees Ins. Co., No. 09 Civ. 2254,
. Moreover, some of the statements that the defendant objects to as hearsay, namely statements attributed to managers employed by the defendant, are not hearsay. See Fed. R. Ev. 801(d)(2)(D). In any event, there is sufficient non-hearsay evidence to support conditional certification.
. For ease of reference, the court will use the term "plaintiffs” to refer to both the named plaintiffs and the opt-in plaintiff.
. The defendant urges the Court to weigh the twenty-three declarations the defendant has submitted from other Personal Bankers disputing the plaintiffs' allegations against the evidence the plaintiffs have submitted. (Decl. of Thomas A. Lindhorst ("Lindhorst Decl.''), Exs. 16-38.) Howеver, the plaintiffs have not had an opportunity to depose these declarants, and courts in this Circuit regularly conclude that such declarations do not undermine the plaintiffs' showing in the first stage of the conditional certification process. See, e.g., In re Penthouse Executive Club Comp. Litig., No. 10 Civ. 1145,
. The Court cautions the plaintiffs, however, that conditional certification of a nationwide class for the purpose of authorizing notice should not be a vehicle for generating burdensome and disproportionate discovery. The burden or expense of discovery should be proportionate to "the needs of thе case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues.” Fed.R.Civ.P. 26(b)(2)(C). While the parties estimate that there are about 4,000 potential members of the purported collective action, it is unclear how many potential plaintiffs will actually opt-in to this action. It is also unclear at this point what a realistic assessment of the actual damages in this case might be.
. The plaintiffs request that the defendant supplement the class list to include these individuals. This request is granted.
. The defendant also objects to the plaintiffs’ reference to ERISA claims in their proposed notice. In light of the Court's Opinion and Order in Winfield, v. Citibank, N.A., 10 Civ. 7304, also issued today, dismissing the plaintiffs’ ERISA claims, reference to these claims should be removed, or the notice should state that these claims have been dismissed.