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Guzman v. VLM

October 11, 2007

ARMANDO GUZMAN AND JOSE GARCIA, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY VLM, INC. D/B/A RELIABLE BAKERY, PLAINTIFFS,
v.
VLM, INC. D/B/A RELIABLE BAKERY, AND JOSEPH VITACCO, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Plaintiffs Armando Guzman and Jose Garcia, former employees of defendant VLM, Inc. ("VLM"), a bakery, bring this putative class action alleging that VLM and its president, Joseph Vitacco, denied them and other bakery employees overtime compensation in violation of the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, and several New York laws, N.Y. Lab. Law §§ 193, 663; N.Y. Bus. Corp. Law § 630; see also N.Y. Comp. Codes R. & Regs. tit. 12 §§ 142-2.2, 142-2.4. Before me now is the question whether plaintiffs are entitled to court-supervised notification to the putative class members under 29 U.S.C. § 216(b), and if so, whether the plaintiffs' proposed notice is appropriate. For the reasons stated below, I hold that the plaintiffs are entitled to notify potential class members, but order several changes to their proposed notice.

BACKGROUND

Armando Guzman and Jose Garcia are both former employees of VLM, which does business as "Reliable Bakery." VLM's principal place of business is a bakery at 8118 18th Avenue in Brooklyn. Compl. ¶ 11; Vitacco Answer ¶ 6. Guzman and Garcia allege that they regularly worked in excess of 40 hours per week without receiving time-and-a-half pay, and both claim that they have worked with many other bakery employees and have had conversations with multiple other bakery employees who also worked in excess of 40 hours per week without receiving time-and-a-half pay.*fn1

Guzman Aff., Aug. 14, 2007, ¶¶ 6-9, 11; Guzman Aff., Sept. 13, 2007, ¶¶ 4-5 (claiming to have discussed matter with 19 named employees); Garcia Aff. ¶¶ 4-7 (claiming to have discussed matter with 26 named employees).*fn2 They claim that most of these employees performed tasks similar to those performed by the plaintiffs. Guzman Aff., Sept. 13, 2007, ¶ 5; Garcia Aff. ¶ 5. Guzman also affirms that he asked Vitacco to be paid more money, and Vitacco replied that he "was paying the rest of the workers the same way" as Guzman and thus could not pay Guzman more without paying other workers more as well. Guzman Aff., Sept. 13, 2007, ¶ 6. In addition to their affidavits, Guzman and Garcia both submit pay stubs, none of which indicates an hourly rate of pay or the hours worked. Pl.'s Mem. Ex. 1; Ambinder Decl. Ex. A; Ambinder Decl. Ex. B.

Additionally, two other putative class members, who are bakers, have submitted affidavits claiming that they were not paid overtime, and also that they worked with numerous other bakers. Rios Aff. ¶¶ 4, 5; Orellana Aff. ¶¶ 4, 6. Nelson Rios alleges that other bakery employees have told him they did not receive overtime payment, and that he has spoken to 20 named bakery employees regarding the matter, most of whom performed work similar to his. Rios Aff. ¶ 8.*fn3 Jhon Orellana affirms that he knows his co-workers were not paid overtime compensation from frequent discussions with them, but he does not provide any names. Orellana Aff. ¶ 10. Orellana also provides several pay stubs that do not show his hours worked or hourly rate. Ambinder Decl. Ex C. Guzman also alleges that the "vast majority" of bakery employees were from South America or Central America, and that he believes many might be fearful to bring this case on their own. Guzman Aff., Aug. 14, 2007, ¶ 14; see also Guzman Aff., Sept. 13, 2007, ¶ 5 (alleging significant majority of named individuals to be of Latin American national origin); Garcia Aff. ¶ 5 (same); Rios Aff. ¶ 8 (same). Plaintiffs seek to send notice to the putative class of current and former employees of VLM from the past six years.*fn4

VLM and Vitacco both deny that they have failed to pay VLM employees overtime. They submit affidavits from 18 individuals, all of whom claim they were told when they began work that they would be paid minimum wage on an hourly basis with time and a half for overtime; that they "believe" they have been paid for all of the time they worked and are not owed any money; that they have "always been paid properly"; and that they have spoken with "dozens" of other employees who have also been paid fully. Viscarra Aff ¶¶ 3, 5-7; Carrasco Aff. ¶¶ 3, 5-7; Cruz Aff. ¶¶ 3, 5-7; Tart ¶¶ 3, 5-7; Iqbal Aff. ¶¶ 3, 5-7; Jesus Martinez Aff. ¶¶ 3, 5-7; Lopez Aff. ¶¶ 3, 5-7; Julio Martinez Aff. ¶¶ 3, 5-7; Hernandez Aff. ¶¶ 3, 5-7; Vitale Aff. ¶¶ 3, 5-7; Baksh Aff. ¶¶ 3, 5-7; T. Husain Aff. ¶¶ 3, 5-7; M. Husain Aff. ¶¶ 3, 5-7; Plastina Aff. ¶¶ 3, 5-7; Flores Aff. ¶¶ 3, 5-7; Huerta Aff. ¶¶ 3, 5-7; Muhammad Aff. ¶¶ 3, 5-7; Marulanda Aff. ¶¶ 3, 5-7. None of them submits any statement or other evidence regarding his or her hourly wage or amount paid, and each of them alleges routinely working at least 51 hours per week.

The defendants also submit a report summarizing a Department of Labor ("DOL") investigation into VLM's employment practices covering the time period from March 2004 to March 2006. The report lists VLM's FLSA compliance status as compliant with no violations found. Newberger Aff. Ex. A 4. However, the report notes that VLM was in fact in violation of the FLSA's recordkeeping provisions, as "the firm does not keep a record of the hours worked by its non-exempt hourly employees." Id. at 7. It notes VLM's compliance status with FLSA's overtime provisions as "no violation uncovered." Id. at 6.

DISCUSSION

A. Standard for Granting

Notice Section 19(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 219(b), has been interpreted to create an "opt-in" mechanism by which plaintiffs may join a collective action against an employer for FLSA violations by affirmatively notifying the court of their intention to participate in the lawsuit. E.g., DiFilippo v. Barclays Capital, Inc., No. 05-4990, 2006 WL 1716860, at *4-*5 (S.D.N.Y. 2006).*fn5 District courts have discretion to facilitate notice to potential class members. Hoffmann-LaRoche Inc. v. Sperling, 493 U.S. 165, 169-70 (1989); see also Braunstein v. Eastern Photographic Labs., 600 F.2d 335, 336 (2d Cir. 1978) (per curiam) (such discretion "facilitates the broad remedial purpose of the Act, which should be given a liberal construction, as well as the interest of the courts in avoiding multiplicity of suits").

To merit an order authorizing notice, a plaintiff must show that the potential class members are "similarly situated," Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367 (S.D.N.Y 2007), which requires only a "'modest factual showing that [the plaintiff] and potential plaintiffs are victims of a common policy or plan that violated the law,'" id. at 367-68 (quoting Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998)).*fn6 If a plaintiff meets the "'fairly lenient'" requirements of this "'notice stage,'" the class is certified, often conditionally and subject to decertification if the other members are found not to be similarly situated after discovery. Iglesias-Mendoza, 239 F.R.D. at 267 (quoting Torres v. Gristede's Operating Corp., No. 04-3316, 2006 WL 2819730, at *7 (S.D.N.Y. Sept. 29, 2006); other citations omitted). Due to the conditional nature of the certification contemplated at the notice stage, the "burden on plaintiffs is not a stringent one, and the court need only reach a preliminary determination that potential plaintiffs are 'similarly situated.'" Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (citing Jackson v. New York Telephone Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995)).

While the Second Circuit has not prescribed a particular analysis for determining if plaintiffs have made the requisite showing that the putative class is similarly situated, Torres, 2006 WL 2819730, at *9, district courts in this circuit have looked principally to whether there are (1) "disparate factual and employment settings of the individual plaintiffs;" (2) "defenses available to defendants which appear to be individual to each plaintiff;" and (3) "fairness and procedural considerations" counseling for or against notification to the class. Id. at *9 (citation omitted); accord Jacobs v. New York Foundling Hosp., 483 F. Supp. 2d 251, 265 (E.D.N.Y. 2007); Ayers v. SGS Control Servs., Inc., No. 03-9077, 2007 WL 646326, at *5 (S.D.N.Y. Feb. 27, 2007); see also Rodolico v. Unisys Corp., 199 F.R.D. 468, 482 (E.D.N.Y. 2001) (applying same three factors plus one ADEA-specific factor in case involving ADEA collective action under § 216(b)).

B. Entitlement to Notice

In light of the foregoing standards, I have no difficulty concluding the plaintiffs here are entitled to court-facilitated notice to the putative class. The plaintiffs have submitted the affidavits of four bakery employees affirming a companywide policy of failure to pay overtime wages and alleging that many other employees who performed similar duties complained of the exact same policy, and have supported their affidavits with suggestive pay stubs for three of them. Defendants' proffered affidavits corroborate that many bakery employees work in excess of 40 hours per week, and do not provide any supporting documentation to substantiate the claim that overtime wages were paid besides the employees' beliefs that they were paid "properly." The DOL's investigation report does not rebut the plaintiffs' case. Its documentation of VLM's failure to keep ...


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