The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
By letter dated May 23, 2004, plaintiffs seek leave of court to
send an "opt-in" notice to potential plaintiffs pursuant to
29 U.S.C. § 216(b). For the reasons set forth below, plaintiffs'
application is granted to the extent that plaintiffs seek to
serve opt-in notices to similarly situated individuals who have
been employed by defendants within the last three years.
This is an action under the Fair Labor Standards Act ("FLSA")
in which the plaintiffs allege that they are or were employed by
the defendants, a nationwide group of over twenty schools, as
assistant directors of admission and that they were routinely
required to work more than forty hours per week without being
paid time and a half for overtime work as guaranteed by the FLSA.
Plaintiffs Legrand, LaFrance and Postler have submitted
declarations in which each states that he or she "was told by
management that [assistant directors of admission] at defendants' schools across the country also had to work over forty hours per
week, and were denied overtime."
In addition to their FLSA claim, plaintiffs have also asserted
a claim under Articles 6 and 19 of the New York Labor Law.
Plaintiffs allege that these provisions require "premium pay" for
hours worked in excess of forty hours per week and require a
"$1.00 spread of hours pay [for hours worked in excess of] 10
hours per day" (Complaint, ¶ 27).*fn1
Section 216(b) of the FLSA provides, in pertinent part:
An action to recover . . . liability . . . may be
maintained against any employer . . . by any one or
more employees for and in behalf of himself or
them-selves and other employees similarly situated.
No employee shall be a party plaintiff to any action
unless he gives his consent in writing to become such
a party and such consent is filed in the court in
which such action is brought.
29 U.S.C. § 216(b). There can no longer be any doubt that a court
has the power to order that opt-in notice be sent to potential
class members pursuant to Section 216(b). Braunstein v. Eastern
Photographic Labs, Inc., 600 F.2d 335
(2d Cir. 1978).
Where, as here, an application to send opt-in notices is made
in the early stages of an action, the plaintiff's burden is
Unlike the four strict requirements that a plaintiff
must overcome to certify a class action under Fed.R.Civ.P. 23, the plaintiff here need only show
that potential class members are similarly situated.
It is commonly held that a plaintiff may meet this
burden by "making a modest factual showing sufficient
to demonstrate that [he] and potential plaintiffs
together were victims of a common policy or plan that
violated the law." Foster v. The Food Emporium,
2000 WL 1737858 at *1 (S.D.N.Y. April 26, 2000)
(McMahon, J.) (quoting Hoffman [v. Sbarro, Inc.,
982 F. Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor,
Harrington v. Education Mgmt. Corp., 02 Civ. 0787 (HB), 2002 WL
1009463 at *1 (S.D.N.Y. May 17, 2002).
Whether the plaintiff and the proposed recipients of the opt-in
notice are similarly situated does not implicate the merits of
the plaintiff's claim, and a finding that opt-in notices should
be sent is not a suggestion that the claims are meritorious.
Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997);
accord Foster v. The Food Emporium, 99 Civ. 3860 (CM), 2000
WL 1737858 at *1 (S.D.N.Y. Apr. 26, 2000).
In this case, I find that plaintiffs have sustained their
burden with respect to their FLSA claims, but not with respect to
their state-law claims. Three of the plaintiffs Legrand,
LaFrance and Postler have submitted declarations in which each
states that each "was told by management that [assistant
directors of admission] at defendants' schools across the country
also had to work over forty hours per week, and were denied
overtime." This is sufficient evidence to satisfy plaintiffs'
burden at this early stage. Harrington v. Education Mgmt.
Corp., supra, 2002 WL 1009463 at *2. Defendants argue at length that Legrand has not met her burden
because defendants' payroll records indicate that she received
overtime pay. To the extent that defendants are attempting argue
the merits of the case, they are raising an issue that is not
material to the current application. Moreover, Legrand asserts
that she was not permitted to submit claims for all overtime
hours. Accordingly, the fact that she received some overtime pay
is not dispositive. Defendants' contention that Legrand's
affidavit is not credible in this regard implicitly imposes a
burden of proof far beyond that recognized by the cases. See
Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 259 (S.D.N.Y. 1997)
("The burden on plaintiffs [to justify the sending of opt-in
notices] is not a stringent one . . ." (collecting cases)).
Plaintiffs' claim under the Labor Law stands on a substantially
different footing. As explained in Foster v. The Food Emporium,
supra, 2000 WL 1737858 at *3:
It is well settled that there is no collective action
analogous to FLSA § 261(b) under the wage and
overtime provisions of the New York State Labor Law.
See N.Y. Lab. Law § 198(1); Carter v. Frito-Lay,
Inc., 74 A.D.2d 550, 425 N.Y.S.2d 115, affd.,
52 N.Y.2d 994, 438 N.Y.S.2d 80, 419 N.E.2d 1079 (1981).
Further, the New York Civil Practice Law and Rules §
901 (b) provides that a plaintiff may not seek
class-wide relief that includes statutorily
prescribed liquidated or punitive damages unless the
statute in questions explicitly authorizes its
enforcement by class actions. There is therefore no
basis for this Court to authorize notice to potential
class members going back six years (which is the
statute of limitations under the Labor Law). See N.Y. Lab. Law § 663 (3) (McKinney 1997). No doubt
persons who elect to opt-in with their Federal claims
will be advised by counsel for the plaintiff
collective that they are also free to assert claims
under the State's Labor Law; indeed, plaintiffs'
counsel would be derelict in her duty if she did not
so advise them. If persons who have no Federal claim
but a timely State law claim hear about this action
from their friends and coworkers and wish to file
their own individual Labor Law complaints in the New
York State Supreme Court, they are free to do so.
Those individuals would not be properly before this
Court, however, because they have no federal claim
and there would not be diversity jurisdiction over
any State law claim they might assert (because the
$75,000 jurisdictional amount would not be reached).
It would be improper to bring persons who have no
Federal claim into this Court under the guise of a
collective action so they can pursue State law claims
that they can only bring on their own and not
Accordingly, the opt-in notice
should be limited to similarly situated individuals who have been employed
by defendants within the last three years.