The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Yvette Rubery ("plaintiff") brings this action against defendant Buth-Na-Bodhaige, Inc., ("defendant" or "The Body Shop") pursuant to the Fair Labor Standards Act, 29 U.S.C. §216(b) ("FLSA") and New York Labor Law §651(5)(c) for defendant's alleged failure to pay plaintiff and other Body Shop Managers overtime pay. Plaintiff claims that during her tenure as a Body Shop Manager from June of 1996 until July 6, 2003, she often worked in excess of forty hours per week, but was not compensated at the requisite overtime pay-rate because she and others had been improperly classified by defendant as "exempt" employees under the FLSA.
Pending before the Court is plaintiff's motion for conditional certification of a collective action under the FLSA (Dkt. #18). For the reasons that follow, plaintiff's motion is granted.
Plaintiff claims that during her tenure as a Body Shop Manager from June of 1996 until July 6, 2003, she was improperly classified as exempt because she primarily performed sales functions, and did not customarily and regularly supervise two full-time employees or their equivalent. Plaintiff also claims that the Body Shop failed to credit or compensate her for work duties which she performed "off the clock."
In response to an informal class notice from plaintiff, several dozen additional plaintiffs have "opted in" to this action. Plaintiff now moves for formal, conditional certification of an FLSA collective action (Dkt. #18).
Plaintiff seeks conditional certification of an FLSA collective action, to include: current or former employees of defendant who had job duties which included performing sales functions while supervising fewer than two employees and who did not receive compensation at time and one half for hours they worked over 40 hours in a week. The class includes, without limitation, those employees with the job title of Shop Manager, or with any title who performed similar duties of the Named Plaintiff and were paid as exempt employees.
Section 216(b) of Title 29 provides that: an action to recover [unpaid wages] may be maintained against any employer . . . in any Federal or State court of competent jurisdiction 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.
The Second Circuit has recognized a district court's authority to order that notice be given to potential members of a plaintiff class in actions under this section (generally referred to as "collective actions"), pursuant to the opt-in provisions of the FLSA. See e.g., Braunstein v. Eastern Photographic Labs, Inc., 600 F.2d 335 (2d Cir. 1978), cert. den., 441 U.S. 944 (1979).
Courts utilize a two-step process when analyzing motions to certify a collective action under the FLSA. First, the court determines whether the proposed class members are "similarly situated." See Mooney v. Aramco Services Co., 54 F.3d 1207, 1213-1213 (5th Cir. 1995). If so, the court conditionally certifies the class and orders putative notice to class members, who are then afforded the opportunity to "opt in." Because a collective action requires written consent from the opt-in plaintiffs, "it lies within the discretion of a district court to begin its involvement early, at the point of the initial notice," in order to ensure that the drafting and distribution of the notice is "timely, accurate and informative." Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 171-172 (1989).
At this early stage,*fn1 however, the evidentiary standard is lenient, and "courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan . . ." Scholtisek v. The Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005), quoting Mooney, 54 F.3d 1207 at 1213. In so doing, plaintiff must make 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." Scholtisek, 229 F.R.D. 381 at 387, quoting Hofmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997).
The FLSA provides that employees who are "employed in a bona fide executive . . . capacity" are exempt from its overtime provisions. 29 U.S.C. §213(a)(1). An employee in an executive capacity is one who meets the statutory wage threshold, "[w]hose primary duty is management . . . [w]ho customarily and regularly directs the work of two or more other employees; and [w]ho has the authority to hire or fire other employees or whose ...