The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
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 the New York Labor Law ("NYLL"), N.Y. Lab. Law §§ 193, 663. I previously authorized notice of a collective action under the FLSA's provisions for collective actions whereby similarly situated employees can opt into a pending lawsuit. The plaintiffs now move to clarify that this authorization of notice constitutes conditional certification of a class under the FLSA and also to certify a class under Federal Rule of Civil Procedure 23 to pursue their state law claims. The defendants cross-move to dismiss the class allegations. For the reasons stated below, the plaintiffs' motions are granted on the condition that they waive their claim to liquidated damages and the defendants' cross-motion is denied.
Armando Guzman and Jose Garcia are both former employees of VLM, which does business as "Reliable Bakery," and sue their former employer alleging that they and other employees they spoke to regularly worked over 40 hours a week without receiving time-and-a-half pay and "spread of hours" compensation for hours worked above 10 in a single day. 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., Dec. 11, 2007, ¶¶ 4-6 (claiming to have discussed matter with 24 named employees).*fn1 They claim that most of these employees performed tasks similar to those performed by the plaintiffs. Guzman Aff., Sept. 13, 2007, ¶ 5; Garcia Aff., Dec. 11, 2007, ¶ 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. Ambinder Decl., Dec. 17, 2007, Ex. A; Ambinder Decl., Dec. 17, 2007, Ex. B.
Additionally, three 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, 10; Orellana Aff. ¶¶ 4, 6, 10; Ali Aff. ¶¶ 3, 6, 8-10. 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.*fn2 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., Dec. 17, 2007, Ex. C. Guzman and Garcia also allege that the "vast majority" of bakery employees were from Pakistan, South America or Central America, and that they believe many might be fearful to bring this case on their own. Guzman Aff., Feb. 14, 2008, ¶ 20; accord Garcia Aff., Feb. 14, 2008, ¶ 16; see also Guzman Aff., Sept. 13, 2007, ¶ 5 (alleging significant majority of named individuals to be of Latin American national origin); Garcia Aff., Dec. 11, 2007, ¶ 12 (same); Rios Aff. ¶ 8 (same).
VLM and Vitacco both deny that they have failed to pay VLM employees overtime. They submit affidavits from 10 current employees of the bakery. These affiants are 10 out of 18 individuals who submitted earlier affidavits opposing the plaintiffs' motion to authorize notice for the FLSA opt-in collective action. The original affidavits were rather cursory; all of the affiants 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. See Ambinder Decl., Dec. 17, 2007, Ex. E.
Each affidavit proffered by the defendant here sets forth the affiant's hourly rate, indicates that the affiant is paid time-and-a-half pay for hours worked over 40, and includes a chart of the hours worked and wages received during the course of the affiant's employment. Carrasco Aff. ¶¶ 3, 6; Cruz Aff. ¶¶ 3, 6; Jesus Martinez Aff. ¶¶ 3, 6; Lopez Aff. ¶¶ 3, 6; Julio Martinez Aff. ¶¶ 3, 6; Hernandez Aff. ¶¶ 3, 6; Vitale Aff. ¶¶ 3, 6; Baksh Aff. ¶¶ 3, 6; Husain Aff. ¶¶ 3, 6; Plastina Aff. ¶¶ 3, 6. In a noteworthy contrast to the earlier affidavits, only one of these charts sets forth a wage rate that reflects New York's minimum wage at the commencement of the affiant's employment. See Cruz Aff. ¶ 6.*fn3
The charts of employee pay all feature a curious "incentive bonus" apparently intended to insulate the employee's pay from variation based on hours actually worked. The majority of weekly entries for each employee reflect incentive bonuses which bring the employee's weekly pay up to the same level (which tends to increase over the term of the employee's tenure). On some weeks, the employee receives more or less money than on neighboring weeks, though even in such cases the incentive bonus always smoothes the amount of weekly pay to a whole dollar amount, and usually one divisible by 10. Generally, however, the incentive bonuses decrease as the amount of hours worked in a week increases, so as to maintain the employee's pay at the same level. Each employee states, "[W]hen I was hired I was told that if I worked my entire schedule for the week, I would receive additional incentive pay that now guarantees me average earnings of [a dollar amount that is different for each employee] per day. This encouraged me to show up to work each day. . . . Sometimes, if I worked more time than my regular shift, I might receive additional monies above the incentive pay." Carrasco Aff. ¶¶ 4, 5; Cruz Aff. ¶¶ 4, 5; Jesus Martinez Aff. ¶¶ 4, 5; Lopez Aff. ¶¶ 4, 5; Julio Martinez Aff. ¶¶ 4, 5; Hernandez Aff. ¶¶ 4, 5; Vitale Aff. ¶¶ 4, 5; Baksh Aff. ¶¶ 4, 5; Husain Aff. ¶¶ 4, 5; Plastina Aff. ¶¶ 4, 5.
Each employee further states, "I sign for my weekly pay which indicates the hours I worked, my pay rate, and any incentive pay that I receive," and each includes a pay stub for the week ending January 27, 2008 and a signed page with a handwritten dollar figure bearing the legend "I agree that the above amount represents my weekly incentive bonus for the week ending 1/27/08." Carrasco Aff. ¶ 7 & Ex. A; Cruz Aff. ¶ 7 & Ex. A; Jesus Martinez Aff. ¶ 7 & Ex. A; Lopez Aff. ¶ 7 & Ex. A; Julio Martinez Aff. ¶ 7 & Ex. A; Hernandez Aff. ¶ 7 & Ex. A; Vitale Aff. ¶ 7 & Ex. A; Baksh Aff. ¶ 7 & Ex. A; Husain Aff. ¶ 7 & Ex. A; Plastina Aff. ¶ 7 & Ex. A.
The plaintiffs each deny ever having heard of an incentive bonus or ever having seen pay documents of the sort proffered by the defendants' affiants. Guzman Aff., Feb. 14, 2008, ¶¶ 13-14; Garcia Aff., Feb. 14, 2008, ¶¶ 11-12. Garcia also claims to have spoken to several of the defendants' affiants, who claimed contrary to their affidavits that they were paid on a daily basis and not paid for overtime. Garcia Aff, Feb. 14, 2008, ¶¶ 6, 9. The plaintiffs also allege that some of the individuals they recall working with, and even one individual who submitted an earlier affidavit for the defendants, are not reflected on the list of employees provided for notice purposes. Guzman Aff., Feb. 14, 2008, ¶ 8; Garcia Aff., Feb. 14, 2008, ¶ 6; compare Ambinder Aff., Dec. 17, 2007, Ex. E (affidavit of Naseb Choudhy Mohammad, initially proffered by the defendants) with Ambinder Aff., Feb. 8, 2008, Ex. E (list of names provided by defendants for notice purposes, excluding Mohammad).
An additional bakery employee, Marcelino Huerta, has recently opted in to the collective action and provided an affidavit. Huerta Aff., Feb. 24, 2008. Huerta's affidavit is substantially similar to the most recent affidavits provided by Guzman, Garcia, and Khan, in that he claims to have worked overtime without receiving overtime or spread-of-hours compensation, id. ¶¶ 4-5, 7, 8; he claims that he believes the other bakery employees were similarly denied overtime pay, id. ¶ 7; he denies having heard of or received an incentive bonus, id. ¶ 10; and he claims that the vast majority of the workers employed at the bakery were from Pakistan, South America or Central America and would be afraid to bring the case on their own, id. ¶ 9.
Huerta's affidavit does, however, contain several notable differences from those submitted by Guzman, Garcia, and Khan. First, Huerta acknowledges occasionally receiving approximately $30-$40 extra in cash on certain weeks, starting in approximately February of 2007, for what his employer stated was overtime pay. Id. ¶ 5. Second, he claims that he heard from his co-workers that "other workers were fired for asking overtime payment." Id. ¶ 9. Third, he addresses an earlier affidavit, submitted by the defendants under his name in opposition to the motion to authorize notice to the class.*fn4 In the earlier affidavit, Huerta alleged that he believed that he was paid properly and not owed any money. Huerta Aff., Sept. 5, 2007. In his current affidavit, he states that he does not recognize the earlier affidavit or remember it being translated into Spanish, and that he remembers being asked by a supervisor to sign various documents he was informed were for company records, but that his signatures on those documents were not notarized. Huerta Aff., Feb. 24, 2008, ¶ 6. His signature in the earlier affidavit, which matches his later signature closely, was notarized. Huerta Aff., Sept. 5, 2007. The defendants have submitted an affidavit from a supervisor claiming that Huerta understood English and understood that he was being paid overtime. Coppolo ¶¶ 4-9.*fn5
The plaintiffs' proposed class is defined as follows: The plaintiffs and all current and former employees of VLM, INC. d/b/a/ RELIABLE BAKERY ("VLM") who worked as bakers, food handlers, storage handlers, landing dock employees and in other job functions related to defendants' bakery operation from March 16, 2001 through the present. Corporate officers, shareholders, directors and administrative employees shall not be part of the proposed class.
Ambinder Decl., Dec. 17, 2007, ¶ 1. This is the same group to whom I previously authorized notice.
A. The Plaintiffs' Motion to Clarify That the FLSA Class is ...