The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff, Vikki D. Lewis, on behalf of herself and all others similarly situated ("Plaintiffs"), moves for an Order (1) certifying this wage and hour action under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., as a collective action pursuant to 29 U.S.C. § 216(b); (2) certifying this wage and hour action under the New York Labor Law as a class action under Rule 23 of the Federal Rules of Civil Procedure; (3) appointing Vikki Lewis as class representative; (4) appointing Liddle & Robinson LLP and Berger & Gottlieb as co-class counsel; and (5) extending the discovery cut-off date and granting Plaintiffs discovery of payroll data as well as the names and addresses of the members of the proposed class. For the reasons set forth below, the motion is granted in part and denied in part.
National Financial Systems Inc. ("Defendant" or "NFS") is a debt collection agency with offices in New York and Florida. Plaintiff Vikki Lewis ("Lewis") was employed by NFS as a debt collector at its Hicksville, New York office location from March 2001 through September 2005. On March 22, 2006, Lewis filed this action on behalf of herself and all other similarly situated individuals for unpaid wages for hours worked and unpaid overtime pursuant to the Federal Fair Labor Standards Act ("FLSA") and for unpaid overtime and for non-payment of any kind for hours worked pursuant to the New York State Labor Law §§ 650 et seq and implementing regulations. Subsequent to Lewis filing this action, two other debt collectors employed by NFS opted into this action. Plaintiffs claim that NFS paid its collectors overtime at a rate officially called the "coefficient system." Under the coefficient system's formula, "the more hours you worked, the less the hourly rate for overtime." Use of the formula resulted in overtime being paid at the rate of approximately one-half the employee's regular rate of pay.
I. Timeliness of the Application
As an initial matter, Defendant has raised the timeliness of Plaintiffs' application, arguing for its denial on the basis it was not made before the deadline set forth in the scheduling order entered in this matter. As set forth below, the Court finds that the application is not untimely.
Defendant's timeliness argument may be fairly summarized as follows: Pursuant to the pre-trial scheduling order entered in this case, motions for joinder of additional parties and motions for amendment of pleadings were to be completed by September 27, 2006. As the motion for certification "seeks to add parties, and by doing so, amend the pleadings," it was required to be complete by September 27, 2006. In fact, the motion was filed on October 26, 2006, allegedly one month too late.
Contrary to Defendant's position, the scheduling order did not require the instant application to be filed by September 27, 2006. The scheduling order did not set any deadline for Plaintiffs to seek certification of either the collective action or the class action. The deadline to add parties refers to motions pursuant to Rules 19 and 20 of the Federal Rules of Civil Procedure. The deadline to amend pleadings refers to motions pursuant to Rule 15 of the Federal Rules of Civil Procedure. Defendant's argument that a certification motion seeks to add new parties and by doing so amend the pleadings, while perhaps clever, is not well taken. Scheduling order are entered to ensure the orderly and timely progression of matters before the Court and not as a trap for the unwary.
Nor do the cases cited by Defendant provide support for its position. For example, in Hammond v. Lowe's Home Centers, Inc., 2006 WL 2522527 at *1 (D. Kan. Feb. 6, 2006), the scheduling order specifically set a deadline for "filing a Rule 23 class certification" motion.
Plaintiffs' application for certification of a collective class and a class action is not untimely.
II. Applicable Legal Principles Under the FLSA
Congress' purpose in passing the FLSA was to "protect all covered workers from substandard wages and oppressive working hours, and 'labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well being of workers.'" Barrentine v. Arkansas-Best-Freight System, Inc., 450 U.S. 728, 739 (1981) (quoting 29 U.S.C. § 202(a)). The FLSA is construed by courts "liberally to apply to the furthest reaches consistent with congressional direction." Tony and Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296 (1985) (internal quotation marks and citation omitted).
Collective actions under the FLSA are authorized by section 216(b) which provides, in pertinent part, as follows:
An action . . . 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.
Unlike a class action pursuant to Federal Rule of Civil Procedure 23 ("Rule 23"), section 216(b) requires that employees affirmatively opt-in to an FLSA collective action by filing a written consent. See Masson v. Ecolab, Inc., 2005 WL 2000133 at *13 (S.D.N.Y. Aug. 17, 2005) ; see also Morales v. Plantworks, Inc., 2006 WL 278154, at *1 (S.D.N.Y. Feb. 2, 2006); Mazur v. Olek Lejbzon & Co., 2005 WL 3240472, at *4 (S.D.N.Y. Nov. 30, 2005). Moreover, the requirements of Rule 23 do not apply to the approval of a collective action and, therefore, no showing of numerosity, typicality, commonality, and representativeness need be made. Id. "Rather, in deciding whether to authorize a collective action notice under the FLSA, the only issue for the Court is whether plaintiffs have demonstrated that potential class members are 'similarly situated.'" Id. (citations and internal quotation marks omitted); see also Patton v. Thomson Corp., 364 F. Supp. 2d 263, 266-67 (E.D.N.Y. 2005) ("The threshold issue in deciding whether to authorize such opt-in notice is to determine whether other employees to whom such notice might be sent are 'similarly situated.'") (citation and internal quotation omitted).
Courts typically employ a two-part process in certifying a collective action. See, e.g., Flores v. Osaka Health SPA, Inc., 2006 WL 695675, at *2 (S.D.N.Y. Mar. 16, 2006). The Court first looks at the pleadings and affidavits to determine whether the class members are similarly situated. Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006) (citing Scholtisek v. Eldre Corp., 22 F.R.D. 381 (W.D.N.Y. 2005)). If the court finds that the putative plaintiffs are similarly situated to the named plaintiffs, the court conditionally certifies the class and permits notice to be sent to the proposed plaintiffs. See Flores, 2006 WL 695675, at *2; Morales, 2006 WL 278154, at *1. During the second stage, the employer can move to decertify the class if discovery reveals that the plaintiffs are not similarly situated. See, e.g. Flores, 2006 WL 695675, at *2; Morales, 2006 WL 278154, at *1; Patton, 364 F. Supp. 2d at 268.
Neither the FLSA nor its implementing regulations define "similarly situated." Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997). In this Circuit, "courts have held that plaintiffs can 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." Id.; see also Braunstein v. Eastern Photographic Labs, Inc., 600 F.2d 335, 336 (2d Cir. 1978) (noting the court's authority to send notice to "similarly situated' employees "comports with the broad remedial purpose of the Act, which should be given a liberal construction, as well as with the interest of the courts in avoiding multiplicity of suits"); Morales, 2006 WL 278154, at *2; Mazur, 2005 WL 3240472, at *4; Patton, 364 F. Supp. 2d at 267; Scholtisek, 229 F.R.D. at 390. See generally Jacobs v. ...