Morris v. Lettire Construction, Corp.

896 F. Supp. 2d 265, 2012 WL 4320462, 2012 U.S. Dist. LEXIS 134860
CourtDistrict Court, S.D. New York
DecidedSeptember 18, 2012
DocketNo. 12 Civ. 0043(NRB)
StatusPublished
Cited by28 cases

This text of 896 F. Supp. 2d 265 (Morris v. Lettire Construction, Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Lettire Construction, Corp., 896 F. Supp. 2d 265, 2012 WL 4320462, 2012 U.S. Dist. LEXIS 134860 (S.D.N.Y. 2012).

Opinion

[267]*267MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, District Judge.

Alfred Morris, Terrell Gardner, and Andre Henry (collectively, “plaintiffs”) bring this action under the Fair Labor Standards Act (the “FLSA”), the New York Labor Laws (the “NYLL”), and New York common law. In the instant motion, plaintiffs request that this Court: (1) authorize the distribution of a collective action notice to a class of potential opt-in plaintiffs; (2) approve plaintiffs’ proposed notice of lawsuit, opt-in consent form, and deadline reminder letter; and (3) direct the defendants to disclose the names, addresses, phone numbers, and email address of potential opt-in plaintiffs. For the reasons set forth below, plaintiffs’ motion is granted in part and denied in part.

BACKGROUND1

Plaintiffs formerly worked as foremen and laborers for Lettire Construction Corporation; Lettire Builders, Inc.; Lettire 124th Street, LLC; and Urban Builders Collaborative, LLC (collectively, “Lettire Construction” or the “Company”), a common enterprise specializing in the construction of affordable housing developments in New York, New Jersey, and Connecticut. (Compl. ¶¶ 1, 40.) Between August 2009 and November 2011, each plaintiff worked as either a foreman or a laborer at one or more of the Company’s construction sites. (Morris Deck ¶¶ 1, 3; Gardner Deck ¶¶ 1, 3; Henry Deck ¶¶ 1, 3.) Those construction sites included: the Dumont Project, located at 1490 Dumont Avenue in Brooklyn, New York; the Tapestry Project, located at 245 East 124th Street in New York, New York; the Via Verde Project, located at 700 Brook Avenue in Bronx, New York; and Project Renewal, located at 2240 Washington Avenue in Bronx, New York.2 (Morris Deck ¶ 3; Gardner Deck ¶ 3; Henry Deck ¶ 3; Reiter Deck ¶¶ 2-5.)

On January 4, 2012, plaintiffs filed a putative class action against Lettire Con[268]*268struction and its co-founders, brothers Nicholas Lettire and Gerard Lettire (together with Lettire Construction, “defendants”), seeking to recover unpaid overtime wages under the FLSA and the NYLL and unpaid prevailing wages under the NYLL and New York common law. (Compl. ¶¶ 1, 12-13, 25.) With respect to their claims under the FLSA, plaintiffs allege that they typically worked between 45 and 55 hours per week, but did not receive overtime premiums for hours worked in excess of 40 per week until April 2010, when Lettire Construction changed its alleged payment policy. (Id. ¶¶45, 53, 61; Morris Deck ¶¶4-5; Gardner Deck ¶¶ 4-5; Henry Deck ¶¶ 4-5.)

According to plaintiffs, prior to April 2010, defendants paid plaintiffs by check for the first 40 hours worked and in cash for any additional hours worked, with all hours paid at the same “straight time” rate of $20 per hour for foremen or $12 per hour for laborers. (Morris Deck ¶ 6; Gardner Deck ¶ 6; Henry Deck ¶ 6.) Plaintiffs allege that they received their weekly check and cash payment in a single envelope that a site supervisor distributed. (Morris Deck ¶¶ 6-7; Gardner Deck ¶¶ 6-7; Henry Deck ¶¶ 6-7.) Plaintiffs claim that they always received their weekly payments in the same manner, no matter where they worked or who supervised them. (Morris Deck ¶¶ 5-6; Gardner Deck ¶¶ 5-6; Henry Deck ¶¶ 5-6.)

Plaintiffs claim that the alleged failure to pay overtime wages was not particular to them, but was a company-wide policy. (Compl. ¶¶ 15, 71; Morris Deck ¶ 7; Gardner Deck ¶ 7; Henry Deck ¶ 7.) According to all three plaintiffs, when a site supervisor distributed the weekly payments, the employees opened their envelopes in one another’s presence, such that plaintiffs could see that their coworkers were not receiving overtime wages. (Morris Deck ¶ 7; Gardner Deck ¶ 7; Henry Deck ¶ 7.) Plaintiff Alfred Morris, who was employed by defendants as a foreman, alleges that he complained about the lack of overtime payments to the Lettire brothers. (Morris Deck ¶ 9.) According to Mr. Morris, Nicholas Lettire responded, “[T]hat’s not how we do it.” (Id.) Plaintiffs Terrell Gardner and Andre Henry, who worked as laborers, similarly allege that they complained to superiors. (Gardner Deck ¶ 9; Henry Deck ¶ 9.) Both men claim that they raised the overtime issue to a site supervisor, who “ignored [plaintiffs’] complaint[s]” and “blew [them] off.” (Gardner Deck ¶ 9; Henry Deck ¶ 9.)

Based on the foregoing, plaintiffs seek to conditionally certify an FLSA collective action on behalf of all foremen and laborers who are or were employed by defendants between January 4, 2009 and the entry of judgment in this case. Defendants concede that conditional certification is appropriate as to foremen and laborers who worked at the same project sites as plaintiffs. However, defendants argue that plaintiffs’ proposed certification is overly broad insofar as it applies to foremen and laborers who worked at other construction sites, as well as foremen and laborers who began their employment after April 2010, when defendants changed their alleged payment policy. In addition, defendants object to various aspects of plaintiffs’ proposed notice, consent form, and reminder letter.

DISCUSSION

I. Motion for Conditional Certification

A. Legal Standards

Section 216(b) of the FLSA authorizes an employee to maintain a collective action on behalf of himself and all “similarly situated” employees. 29 U.S.C. § 216(b). Unlike a class action brought [269]*269under Rule 23 of the Federal Rules of Civil Procedure, a collective action requires “similarly situated” employees to affirmatively opt-in to the litigation by filing written consent forms with the court. Id. “[District courts have discretion, in appropriate cases, to implement [Section] 216(b) by facilitating notice to potential plaintiffs of the pendency of the action and of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir.2010) (internal quotation marks and alterations omitted). In determining whether to exercise such discretion, courts in this Circuit follow a two-step test. Id. at 554-55.

The first step, at issue in this motion, is commonly referred to as conditional certification. See Guillen v. Marshalls of MA, Inc., 750 F.Supp.2d 469, 475 (S.D.N.Y.2010). During this stage, “the court mak[es] an initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs.” Myers, 624 F.3d at 555. A plaintiffs burden at this stage is minimal: He must only make a “modest factual showing” that he and the potential opt-in plaintiffs were “victims of a common policy or plan that violated the law.” Id. (internal quotation marks omitted).

To satisfy this burden, the plaintiff must offer “substantial allegations” demonstrating a “factual nexus” between the plaintiff and the potential opt-in plaintiffs. Diaz v. S & H Bondi’s Dep’t Store, No. 10 Civ. 7676(PGG), 2012 WL 137460, at *3 (S.D.N.Y. Jan. 18, 2012) (internal quotation marks omitted); see also Myers,

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