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July 6, 2005.

JURJITA VAICAITIENE, on behalf of herself and all others similarly situated, Plaintiff,

The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge


This action was brought pursuant to the Fair Labor Standards Act ("FLSA" or "the Act"), 29 U.S.C. § 207 et seq., New York Labor Law § 160, and 12 N.Y.C.R.R. § 142-2.2. Plaintiff Jurjita Vaicaitiene,*fn1 formerly employed by Defendant Partners in Care, Inc. ("Partners in Care") as a home health aide, alleges that she, and other employees of Defendants Partners in Care and Visiting Nurse Service of New York ("VNSNY"), the parent company of Partners in Care, did not receive required overtime compensation for hours worked in excess of forty hours per week.*fn2 Plaintiff moves for an order authorizing collective action, directing Defendants to provide the names and addresses of similarly situated current and former employees, and authorizing notice to be mailed to such individuals for the purpose of obtaining their written consent to join this action as plaintiffs. Defendants contend that class notice is premature, and that the scope and time frame of the proposed notice is overly broad.

I. Applicable Legal Standards

  A. FLSA Employer Requirements

  The FLSA was enacted to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a). "The purpose of the FLSA . . . was to `guarantee? compensation for all work or employment engaged in by employees covered by the Act.'" Reich v. New York City Transit Auth., 45 F.3d 646, 648-49 (2d Cir. 1995) (quoting Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S. Ct. 698, 705 (1944)).

  The FLSA requires employers to pay overtime compensation for "employment in excess of [forty hours per week] at a rate not less than one and one-half times the regular rate at which [the employee] is employed." 29 U.S.C. § 207(a) (1). Certain employees are exempt from the Act's overtime requirements, including, "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary)." 29 U.S.C. § 213 (a) (15). "[B]ecause the FLSA is a remedial act, its exemptions . . . are to be narrowly construed," and "an employer bears the burden of proving that its employees fall within an exempted category of the Act." Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991) (citations omitted).

  In Coke v. Long Island Care at Home, Ltd., 376 F.3d 118 (2d Cir. 2004), the Second Circuit reviewed two challenged regulations promulgated by the Department of Labor ("DOL") that define and interpret the "companionship services" exemption in § 213(a) (15). These regulations are relevant to the instant action. The first regulation defines the exemption as including:
those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, That such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked.
29 C.F.R. § 552.6. The Court concluded that the regulation was not arbitrary, capricious, or manifestly contrary to the statute, and thus was enforceable. See Coke, 376 F.3d at 129.

  The second regulation applied the exemption to "[e]mployees who are engaged in providing companionship services, as defined in § 552.6, and who are employed by an employer or agency other than the family or household using their services." 29 C.F.R. § 552.109(a). The Court held that the regulation is unenforceable because it is inconsistent with Congress's likely purposes in enacting the 1974 amendments to the Act, other regulations, and other agency positions over time.*fn3 See Coke, 376 F.3d at 133. The Court found, moreover, that the DOL "does not proffer valid reasoning for § 552.109(a)'s enforceability, evidencing a lack of thorough consideration." Id. The Court affirmed the district court's decision in part, vacated in part, and remanded the case for further proceedings. See id. at 135.

  On March 22, 2005, the Second Circuit granted a motion to stay the mandate in Coke, pending application to the Supreme Court for certiorari review. (See Declaration of Kathy H. Chin, Esq., dated May 20, 2005 ("Chin Decl.") ¶ 4, Exs. B & C.) On March 29, 2005, appellees filed a petition for certiori in the Supreme Court. See Long Island Care at Home, Ltd. v. Coke, 73 U.S.L.W. 3603 (Mar. 29, 2005) (No. 04-1315). B. Collective Action for Similarly Situated Plaintiffs

  An employee claiming that the employer has violated the FLSA overtime provisions may bring a lawsuit under Section 216(b) of the FLSA which provides, in pertinent part, that:
An action to recover . . . liability . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such 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).

  "[U]nder the FLSA, potential plaintiffs must `opt-in' to a collective action to be bound by the judgment (and to benefit from it)." Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 260 (S.D.N.Y. 1997). A court has the discretionary power to authorize notification to "similarly situated" potential plaintiffs and to direct an employer defendant to disclose the names and addresses of the relevant parties. See Patton v. The Thomson Corp., 364 F. Supp. 2d 263, 266 (S.D.N.Y. 2005) (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S. Ct. 482, 485 (1989); Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1979)). Sending of notice to similarly situated individuals "comports with the broad remedial purpose of the Act, . . . as well as with the interest of the courts in avoiding multiplicity of suits." Braunstein, 600 F.2d at 336; see also Hoffman, 982 F. Supp. at 262 ("[C]ourts have endorsed the sending of notice early in the proceeding, as a means of facilitating the FLSA's broad remedial purpose and promoting efficient case management.")

  The requirements of Rule 23 of the Federal Rules of Civil Procedure do not apply to the approval of a collective action under the FLSA, and thus "no showing of numerosity, typicality, commonality and representativeness need be made." Foster v. Food Emporium, No. 99 Civ. 3860 (CM), 2000 WL 1737858, at *1 (S.D.N.Y. Apr. 26, 2000). Rather, in deciding whether to authorize class notice in an FLSA action, the Court "need only reach a preliminary determination that potential plaintiffs are `similarly situated.'" Hoffman, 982 F. Supp. at 261. "The inquiry at the inception of the lawsuit is less stringent than the ultimate determination that the class is properly constituted." Jackson v. New York Telephone Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995). Plaintiffs may meet this burden by "making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Foster, 2000 WL 1737858, at *1 (quoting Hoffman, 982 F. Supp. at 261). A court must determine whether there is a "factual nexus between the [named plaintiff's] situation and the situation of other current and former [employees]." Hoffman, 982 F. Supp. at 262.

  "The Court need not evaluate the merits of plaintiffs' claims in order to determine whether a `similarly situated' group exists." Krueger v. New York Tel. Co., Nos. 93 Civ. 0178 & 93 Civ. 0179 (LMM), 1993 WL 276058, at *2 (S.D.N.Y. July 21, 1993); see also LeGrand v. Educ. Mgmt. Corp., No. 03 Civ. 9798 (HB) (HBP), 2004 WL 1962076, at *2 (S.D.N.Y. Sept. 2, 2004) ("To the extent that defendants are attempting to argue the merits of the case, they are raising an issue that is not material to the current application."). Thus, "[w]hether the positions the Plaintiff held were exempt is not an issue when deciding whether to authorize notice in an FLSA action." Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 105 (S.D.N.Y. 2003). Even if later in the proceedings "plaintiffs' claims turn out to be meritless or, in fact, all the plaintiffs turn out not to be similarly situated, notification at this stage, rather than after further discovery, may enable more efficient resolution of the underlying issues in [the] case." Krueger, 1993 WL 276058, at *2 (emphasis in original); see also Patton, 364 F. ...

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