United States District Court, Southern District of New York
February 10, 1999
HENRY BRZYCHNALSKI AND JADWIGA RZECZYCKA, ON BEHALF OF THEMSELVES AND ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS,
UNESCO, INC., ET AL., DEFENDANTS.
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.
Plaintiffs move (1) for leave to prosecute this action as a
collective action with respect to their FLSA claims; (2) for an
order directing defendants to furnish on an expedited basis the
names and last known addresses of all individuals employed by
defendants as asbestos workers during the relevant time period;
(3) for authorization to send a notice and "opt-in" form to all
of the collective action; (4) for class certification of
plaintiffs' claims under the NYMWA; and (5) for leave to add two
named plaintiffs, Stanislaw Zacharski and Wilhelm Wandzel.*fn1
For the reasons that follow, plaintiffs' motion is granted.
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).
Second, the creation of two classes in this case is not an
impediment to the exercise of supplemental jurisdiction over the
claims. Although different time periods are involved because of
the different statutes of limitations applicable to the FLSA and
NYMWA claims, there is substantial overlap. Moreover, the claims
are essentially the same: The members of both classes performed
the same type of work for the same related employers and were
deprived of overtime compensation purportedly as the result of
the same alleged scheme. There is no reason why the claims should
be separately litigated in two different courts.
I conclude that the four requirements for class certification
have been met. The potential class will consist of between 190
and 500 members. There exist common questions of law and fact.
The claims of the named plaintiffs are typical of the claims of
the proposed class. The named plaintiffs and their counsel will
fairly and adequately represent the interests of the proposed
In addition, I find that the common questions of law and fact
predominate over any questions affecting only individual members
and that a class action is superior to other methods for the fair
and efficient adjudication of the claims in question.
Accordingly, the request for class certification of the NYMWA
claims is granted.
5. The Request for Leave to Add Two Plaintiffs
Plaintiffs' request for leave to add two named plaintiffs,
Stanislaw Zacharski and Wilhelm Wandzel, is granted.
Plaintiffs' motion is granted in all respects. It is hereby
ORDERED as follows:
1. Plaintiffs are granted leave to prosecute this action as a
collective action pursuant to 29 U.S.C. § 216(b) with respect to
their FLSA claims;
2. Defendants shall furnish to plaintiffs' counsel within
twenty days hereof the names and last known addresses of all
individuals employed by defendants as asbestos workers from May
1991 through May 1997;
3. Plaintiffs are authorized to send a notice and "opt-in" form
to all prospective members of the collective FLSA action;
4. Plaintiffs may prosecute their claims under the NYMWA as
class claims pursuant to Fed.R.Civ.P. 23(a) and (b)(3);
5. Plaintiffs are granted leave to add Stanislaw Zacharski and
Wilhelm Wandzel as named plaintiffs in this action; and
6. The parties shall appear for a pretrial conference on March
19, 1999 at 10:30 a.m. in Courtroom 11A at 500 Pearl Street.