The opinion of the court was delivered by: Chin, District Judge.
In this case, plaintiffs are asbestos workers who claim that
their employers violated the Fair Labor Standards Act (the
"FLSA") and the New York Minimum Wage Act (the "NYMWA") by
failing to pay them overtime compensation at the rate of one and
one-half times their regular rate of pay. Plaintiffs contend that
whenever they worked more than forty hours per week, defendants
paid them with two or more paychecks from separate, but related,
companies, dividing the hours among the companies so that no
company was allocated more than forty hours per week for any
employee. Plaintiffs contend that defendants thus sought to avoid
paying overtime to their employees.
1. The Request for Leave to Proceed as an FLSA Collective
The FLSA permits employees to maintain an action "for and in
behalf of . . . themselves and other employees similarly
situated." 29 U.S.C. § 216(b). The named plaintiffs must be
"similarly situated" to the proposed members of the class, and
proposed class members must "opt in" and consent in writing to
being a party to the action. Id.; see Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).
Here, the proposed class members are similarly situated, for
they are all asbestos workers who were purportedly subjected to a
common scheme to deprive them of overtime compensation. Moreover,
some 106 employees of defendants have submitted "opt-in" forms.
Although there may be some differences in the calculation of
damages (should plaintiffs prevail), those differences are not
sufficient to preclude joining the claims in one action.
Accordingly, plaintiffs' request for authorization to prosecute
their FLSA claims collectively pursuant to 29 U.S.C. § 216(b) is
2. The Request for Disclosure of Names and Addresses
Defendants object to plaintiffs' request for disclosure of the
names and addresses of employees who worked for defendants from
May 1991 through May 1997. Defendants contend that plaintiffs'
request for the information comes too late. Given defendants'
failure in this case to respond to plaintiffs' discovery requests
on a timely basis, defendants' objections are without merit and
they are overruled.
3. The Request to Send Notice
Defendants' objections to the sending of a notice and opt-in
form to prospective members of the collective action are
overruled. Plaintiffs are hereby granted leave to send a notice
and opt-in form to prospective members of the FLSA class.
4. The Request for Certification of a NYMWA Class
With respect to their claims under the NYMWA, plaintiffs seek
class certification under Fed.R.Civ.P. 23(a) and (b)(3).
Defendants oppose the request on two grounds. First, they note
that under New York law, class actions may not be brought for
penalties, citing C.P.L.R. 901(b). Second, they contend that it
would be an abuse of discretion for the Court to exercise
supplemental jurisdiction over the NYMWA claims. Both contentions
First, C.P.L.R. 901(b) does not preclude plaintiffs from
pursuing their claims under the NYMWA on a class basis.
Plaintiffs contend they may seek liquidated damages on a class
basis because they are seeking class certification under
Fed.R.Civ.P. 23, which does not preclude a class action for
punitive damages, rather than under C.P.L.R. 901(b). I do not
reach the issue now, for even if plaintiffs cannot seek
liquidated damages on a class basis, they may waive that right
and still proceed on a class basis with respect to their
remaining claims, as long as prospective class members have the
right to opt-out of the class action to preserve their claims for
liquidated damages. See Pesantez v. Boyle Envtl. Servs., Inc.,
673 N.Y.S.2d 659, 1998 WL 289416, at *1 (N.Y.App. Div. 1st Dep't
1998); Super Glue Corp. v. Avis Rent A Car System, Inc.,
132 A.D.2d 604, 517 N.Y.S.2d 764, 767 (1987).