Salomon v. Adderley Industries, Inc.

847 F. Supp. 2d 561, 2012 WL 716197, 2012 U.S. Dist. LEXIS 29431
CourtDistrict Court, S.D. New York
DecidedMarch 6, 2012
DocketNo. 11 Civ. 6043(PAC)
StatusPublished
Cited by63 cases

This text of 847 F. Supp. 2d 561 (Salomon v. Adderley Industries, Inc.) 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
Salomon v. Adderley Industries, Inc., 847 F. Supp. 2d 561, 2012 WL 716197, 2012 U.S. Dist. LEXIS 29431 (S.D.N.Y. 2012).

Opinion

ORDER

PAUL A. CROTTY, District Judge:

On August 20, 2011, Plaintiffs1 commenced this action against their current or former employer Adderley Industries, Inc. (“Defendant”), asserting claims under the Fair Labor Standards Act (“FLSA”) 29 U.S.C. §§ 201 et seq., and New York Labor Law. Plaintiffs are field technicians who install and repair cable and cable related services, and were paid a fixed amount per job completed, rather than a salary or hourly rate. Plaintiffs claim that Defendant failed to pay them overtime wages, engaged in unlawful wage deduction, and retaliated against them for participating in a United States Department of Labor investigation into Defendant’s compliance with the FLSA.

Plaintiffs now move: (1) for conditional certification to proceed as a collective action, under § 216(b) of the FLSA; (2) to compel Defendant to provide information regarding similarly situated employees for the six-year period prior to this suit; and (3) for court-authorized notice. Defendant opposes the motion, arguing that Plaintiffs and putative collective action members are not “similarly situated.”

I. FLSA § 216(b) Collective Action Certification

1. Legal Standard

Under § 216(b) of the FLSA, an employee is allowed to “assert claims on behalf of other ‘similarly situated’ employees.” Myers v. Hertz Corp., 624 F.3d 537, 542 (2d Cir.2010). Similarly situated employees are required to “opt-in,” by filing a written consent, to become part of the FLSA collective action and to be bound by the judgment. See id. Courts have the discretion “to facilitate notice to potential plaintiffs to inform them of the pendency of an action and of their opportunity to opt in as represented plaintiffs.” Jason v. Falcon Data Com, Inc., No. 09-CV-03990 (JG)(ALC), 2011 WL 2837488, at *4, 2011 U.S. Dist. LEXIS 77352, at *11 (E.D.N.Y. July 18, 2011).

Courts engage in a two-step analysis in deciding whether to certify a collective action under the FLSA. Myers, 624 F.3d at 554-555. In the first stage of analysis, a court determines whether notice should be sent to potential opt-in plaintiffs who may be “similarly situated” to the named plaintiffs, “thus issuing a ‘conditional certification’ of the collective action.” Winfield v. Citibank, N.A., 843 F.Supp.2d 397, 402, 10 Civ. 7304(JGK), 2012 WL 423346, *3, 2012 U.S. Dist. LEXIS 16449, at *8 (S.D.N.Y. Jan. 27, 2012). Plaintiffs’ burden at this stage is minimal; Plaintiffs need only make a “modest factual showing” that they and potential opt-in plaintiffs “ ‘together were victims of a common policy or plan that violated the law.’ ” Myers, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)). Plaintiffs can satisfy their burden by showing “ ‘there are other employees ... who are similarly situated with respect to their job requirements and with regard to their pay provisions.’ ” Id. (quoting Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258-62 (11th Cir. 2008)). Of course, Plaintiffs cannot rely on unsupported assertions to satisfy the modest factual showing; but courts regularly rely on plaintiffs’ affidavits and hearsay statements in determining the propriety of sending notice. See Moore v. Eagle Sani[564]*564tation, Inc., 276 F.R.D. 54, 59 (E.D.N.Y. 2011) (citing cases).

In the second stage of analysis, following discovery, a court determines whether the “ ‘collective action’ may go forward by determining whether the plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs.” Myers, 624 F.3d at 555. If the plaintiffs are not similarly situated, then the collective action may be “de-certified” and “the opt-in plaintiffs’ claims may be dismissed without prejudice.” Id.

2. Application

At the initial notice stage, Plaintiffs have to make only a modest factual showing that they and other employees were victims of a common policy or plan. The four named Plaintiffs and one opt-in Plaintiff provided declarations in support of the motion. Plaintiffs’ declarations show that the Defendant employs approximately fifty field technicians.2 Field Technicians report to Defendant’s office at approximately 7:30 a.m. each work day, at which point they receive their “work route” for the day and pick up necessary equipment.3 Plaintiffs were often assigned additional work during the course of the day.4 Plaintiffs’ primary field work involved installing and repairing cable and cable related services.5 Defendants paid field technicians a fixed amount per job completed. (Compl. ¶ 48.) At the end of the day, the field technicians return to Defendant’s office to, inter alia, return equipment and complete paperwork, which has to be reviewed by a supervisory official.6 Defendants did not pay field technicians for time spent at the office — including time awaiting their assignment, picking up or returning equipment, filling out paperwork, and awaiting supervisory approval. (Compl. ¶ 59.) Plaintiffs’ workday did not include breaks.7 Plaintiffs typically worked five or more days per week, often in excess of forty hours, but they were not paid overtime.8 Plaintiffs claim that other field technicians employed by Defendant also work in excess of forty hours per week, based on their conversations with eoworkers, and their observation of co-workers at the office at the start and end of the day.9 Plaintiffs identify a number of field technicians who told Plaintiffs they were not paid overtime for the hours they worked in excess of forty hours.10 Plaintiffs have “made a modest factual showing that all the putative plaintiffs held the same position, performed the [565]*565same duties, were subject to the same piece-work-based compensation scheme and were not paid overtime.” Falcon Data Com, Inc., 2011 WL 2837488, at *5, 2011 U.S. Dist. LEXIS 77352, at *14 (granting cable technicians’ motion for conditionally certified as a collective action).

Defendant argues that Plaintiffs and putative class members are not similarly situated because they worked different hours, completed different jobs during the day, and thus received different pay. They argue that since the hours worked, jobs performed, and pay received is unique to each field technician, individual issues will predominate over any common issues.

The relevant issue here, however, “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., 827 F.Supp.2d 294, 323, No. 11 Civ. 2448, 2011 WL 5881926, at *25 (S.D.N.Y. Nov. 22, 2011) (internal quotations omitted); Winfield, 843 F.Supp.2d at 404, 2012 WL 423346 at *5, 2012 U.S. Dist. LEXIS 16449, at *16 (same).

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847 F. Supp. 2d 561, 2012 WL 716197, 2012 U.S. Dist. LEXIS 29431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salomon-v-adderley-industries-inc-nysd-2012.