The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Plaintiffs have sued their former employers Delgado Travel Agency, Delgado Travel Corp., and Casa de Cambio Delgado, Inc. ("Defendants"), a collection of travel agency and money wire businesses, for failure to pay overtime and spread of hours wages in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and the New York Labor Law § 650 et seq. ("NYLL"). In an April 7, 2008 opinion, I denied without prejudice Plaintiffs' request for conditional certification as a collective action under § 216 of the FLSA and class action under Fed. R. Civ. P. 23(a) and (b)(3) for their NYLL claims. Mendoza v. Casa de Cambio Delgado Inc., No. 07 Civ. 2579, 2008 WL 938584 (S.D.N.Y. Apr. 7, 2008). After additional discovery, Plaintiffs renewed their motion for collective action and class action certification. Defendants oppose the motion on the ground that Plaintiffs have again 1) failed to show that the named Plaintiffs are similarly situated with the putative class members; and 2) failed to show that the proposed class meets any of the class action requirements of FRCP 23. (Defendants' Mem. of Law in Opp. to Plaintiffs' Renewed Motion ("Sec. Opp. Mem.").)*fn2 For the reasons set forth below below, Plaintiffs' motion is granted.
Defendant corporations maintain travel agencies and currency exchange businesses in New York and other states. (Sec. Am. Compl. ¶¶ 18-24, 27-30 ("Compl.").) Most of the named Plaintiffs worked for Defendants' from Monday through Friday from 9:00 am to 8:30 pm; 9:00 am through 6:00 pm on Saturdays; and later during peak travel periods, approximately 20 days per year. (Compl. ¶¶ 31-41.) Plaintiffs allege that Defendants caused Plaintiffs to be paid a weekly salary, rather than an hourly wage, and that the weekly salary did not reflect the actual hours they worked each week. (Compl. ¶ 42, 46.) Accordingly, Plaintiffs contend that they were not paid for one and one-half times their regular hourly rate for work in excess of forty hours per workweek. Id. In addition, Plaintiffs allege that Delgado violated the New York Labor Law by failing to pay them an additional hour at the minimum hourly wage for each day on which the number of hours between their arrival and departure times ("spread of hours") exceeded ten. (Compl. ¶ 2.)
A. Collective Action Certification -- FLSA § 216(b)
"The proper inquiry in a § 216(b) determination is whether plaintiffs are similarly situated with respect to their allegations that the law has been violated." Hallissey v. Am. Online, Inc., No. 99 Civ. 3785, 2008 U.S. DIST LEXIS 18387, at *5 (S.D.N.Y. Feb. 19, 2008) (emphasis in original) (citation omitted). Plaintiffs are only required to make a "modest factual showing" that they and potential collective action members were victims of a common policy or plan that violated the law.*fn3 Lynch v. United States Auto Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007); Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006).
It is not necessary for a court to evaluate the merits of the plaintiffs' claims in order to determine that a group of similarly situated persons exists. Cuzco v. Orion Builders, Inc., 477 F. Supp. 2d 628, 633 (S.D.N.Y. 2003). Further, while dates of employment and hours worked may be unique to each employee, these differences do not necessarily create dissimilarity under the FLSA. See Mentor v. Imperial Parking Sys., Inc., 246 F.R.D. 178, 181 (S.D.N.Y. 2007). Nor does the fact that employees worked a variety of different jobs in a number of different departments at different locations preclude class treatment. Hallissey, 2008 U.S. DIST LEXIS 18387, at *5-6 (citation omitted).
B. Class Certification -- FRCP §§ 23(a) and (b)(3)
District courts have ample discretion to consider (or to decline to consider) a revised class certification motion after an initial denial. In re Initial Pub. Offering Sec. Litig., 483 F.3d 70, 73 (2d Cir. 2007). Where, as here, "a collective action under the FLSA that is based on the same set of facts has been approved, there is an inclination to grant class certification of state labor law claims." ABC Carpet & Home, 236 F.R.D. at 202-03. However, a court has the power to alter or modify the class description if subsequent events suggest that it is appropriate to do so. Catanzano by Catanzano v. Dowling, 847 F. Supp. 1070, 1077 (W.D.N.Y. 1994). Plaintiffs must prove that the putative class has satisfied all four prerequisites of Rule 23(a) and at least one category of Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). The district court judge can consider affidavits, documents, and testimony to determine whether each Rule 23 requirement has been met. See In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).
A. Collective Action FLSA § 216(b)
I previously found that Plaintiffs failed to meet the similarly situated requirement of § 216(b) because they lacked the requisite factual nexus with other employees of the Delgado network. Mendoza v. Casa de Cambio Delgado Inc., No. 07 Civ. 2579, 2008 WL 938584, at *2 (S.D.N.Y. Apr. 7, 2008) (citing lack of factual nexus as the "principal defect" with Plaintiffs' original certification request). With their renewed motion for certification, however, Plaintiffs have passed the very low threshold and met the similarly situated requirement. Put another way, it has demonstrated a factual nexus with other members of the putative class. Damassia v. Duane Reade, Inc., 04 Civ 8819, 2006 U.S. Dist. LEXIS 73090, at *9-10 (S.D.N.Y. Oct. 5, 2006).
Plaintiffs have shown that "to the best of their knowledge, and on the basis of their observations, their experience was shared by members of the proposed class." Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y. 2007). Specifically, Sandra Gonzales, a named plaintiff, testified that she spoke with about 25 other travel agents at company meetings who told her that they were not paid for all of the hours they worked. (See Affidavit of Peter G. Eikenberry ("Eikenberry Aff."), Ex. XX.) Natalia Borona, Jeanneth Garcia, and Gloria Hurtado, all named Plaintiffs, testified in their affidavits that they spoke with their co-workers at their respective offices, ranging from five to eighteen other employees, and that these co-workers informed them that they too were not paid for all the hours they worked. (See id., Exs. CC, FF, AAA.) Jeanneth Garcia also reported that she distributed paychecks to four other employees, and that the paychecks were always for the same amount of money regardless of how many hours the employees worked per week. (See id., Ex. FF.) Additionally, Mary Gamboa, a named Plaintiff, specifically identified five employees, not named plaintiffs, who told her that they were not paid for all the hours they worked. (See id., Ex. EE.) In addition to the affidavits, Plaintiffs have provided the deposition transcripts of nine other Delgado employees. (See id., Exs. OO -- VV.) These depositions were taken in connection with a prior lawsuit in which the Delgado companies were also the defendants. In the depositions, the former employees testified that they were required to work beyond their scheduled hours, and many testified that they were not paid for the extra hours worked. (See id., Exs. OO -- VV, RR at 41:15-18, SS at 42:16-43:17, TT.)
Their "off-the-clock" claims pass the similarly situated threshold because Plaintiffs have demonstrated that other individuals in the putative class worked the same relatively uniform offthe-clock hours. Cf. Diaz v. Electronic Boutique of America, Inc., No. 04 Civ. 0840E, 2005 WL 2654270, at *5 (W.D.N.Y. October 17, 2005) (denying certification where employees' off-the-clock claim did not involve regularly scheduled time that was worked by all members of the class). The Plaintiffs' affidavits reveal that Defendants had a policy of holding bi-monthly morning meetings that required employees to come into work earlier than their scheduled arrival time, and that it was the company policy not to compensate employees for this additional time. (See Eikenberry Aff., Exs. CC - II.) The record also indicates that the company had a policy of leaving the store doors open beyond the respective stores' scheduled closing times to enable more clients to enter, which would consistently cause the employees to stay late, but without compensation for this extra time worked. (See id., Ex. PP at 15:4-21.) Further, Monica Avila testified in a prior litigation that the employees frequently stayed beyond the scheduled departure time because they were instructed to wait together until everyone's work had been finished ...