The opinion of the court was delivered by: William M. Skretny United States District Judge
Four Plaintiffs commenced this putative collective/class action on May 22, 2008, alleging that Defendants violated the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL") by failing to pay hourly employees for all hours worked and/or overtime for hours worked over 40 per week. There are presently eight motions pending in this case, five of which are addressed here; Plaintiffs' motion for "conditional certification" of an FLSA collective action, presented in the form of a Motion for Expedited Notice to Affected Employees (Docket No. 7)*fn1 , Plaintiffs' Motion for an Expedited Hearing on the Motion for Expedited Notice (Docket No. 14)*fn2 , Plaintiffs' Motion for an Equitable Toll of the FLSA's Statute of Limitations (Docket No. 190)*fn3 , Plaintiffs' Motion for a Status Conference (Docket No. 211)*fn4 , and Plaintiffs' Motion to Vacate the Court's Order Striking their Sur-Sur-Reply (Docket No. 218).
For the reasons discussed below, Plaintiff's motion seeking conditional certification and court-authorized notice to affected employees, which includes a request that Defendants produce employee information, is granted. However, the scope of Defendants' obligations are limited as set forth in this Decision and Order. The motions for equitable tolling of the FLSA statute of limitations, for an expedited hearing, for a status conference, and to vacate the Court's order are denied.
The named Plaintiffs are hourly employees of Defendants (collectively referred to as Catholic Health System or "CHS"), who allege, inter alia, that CHS violated various wage and hour requirements of the FLSA.*fn5 (Docket No. 1) CHS is an affiliation of health care entities consisting of hospitals; primary care centers; diagnostic and treatment centers; a surgery center; long-term care facilities; adult homes; home care agencies; and other community ministries. (Docket No. 112 ¶ 4.) All told, CHS has more than 30 facilities in the greater Buffalo area. (Docket No. 113, ¶ 4.)
CHS employs about 6,800*fn6 hourly workers, approximately half of whom are represented by a union under one of ten collective bargaining agreements. (Id. ¶¶ 4, 6; Docket No. 1 ¶¶ 16, 93.)
Plaintiffs allege in their Complaint that CHS maintains a Break Deduction Policy throughout its facilities and centers, which automatically deducts a meal break from the pay of hourly workers. (Complaint ¶¶ 75-76.) According to Plaintiffs, CHS requires certain hourly employees, including nurses, licensed practical nurses, aides, and other health care workers, to engage in patient care during meal breaks, it knows that such work is performed, but it has a practice of subjecting employees to the automatic deduction even when they have worked through all or part of the meal period. (Id. ¶¶ 12, 77-82, 85, 107-111.) It is alleged that the time spent working through meal breaks, along with other uncompensated work performed before or after shifts and time spent attending training sessions, often included work that should have been paid at overtime rates. (Id. ¶¶ 88-90.) Plaintiffs allege that all CHS facilities are integrated under common management and a centrally organized labor relations and human resources team, such that its policies are applied system-wide. (Id., e.g., ¶¶ 17-20, 75-82.)
Each lead Plaintiff submitted an affirmation stating that CHS automatically deducts 30 minutes from hourly employee paychecks for each shift worked. (Docket No. 53, Exs. A-D, ¶¶ 3, 6.) They go on to declare it was a "common" or "everyday occurrence" that they and "some" other employees were interrupted during their 30-minute meal break, defendants and management expected and knew that the employees worked through some or all of their lunches to take care of patients, and the 30-minute pay deduction was taken even when Plaintiffs worked through their entire shift. (Id. ¶¶ 4-5, 7, 9-10.) One Plaintiff, Beverly Weisbecker attests that other hourly employees complained to her about working during their meal break without pay. According to Weisbecker, her complaints to CHS about unpaid work were ignored, and she was told by her director and the human resources manager that she was complaining too much. (Id. Ex. B ¶ 6.) Plaintiffs state that Defendants seemed unconcerned "about employees missing meal periods and not getting paid for that time." (Id. Exs. A-D ¶ 10.) Plaintiffs specifically attributed the meal break interruptions/losses to chronic understaffing at certain CHS hospitals and adult homes.*fn7 (Id. ¶ 7.)
Each Plaintiff indicates her duties involved patient care. According to CHS, Plaintiffs held the positions of registered nurse, licensed practical nurse, and respiratory therapist. (Docket No. 113, ¶ 4.) CHS concedes that its hourly employees-except those in certain titles, such as field workers in Home Health-use a timekeeping system that automatically deducts 30 minutes daily for an unpaid meal break when employees work shifts of greater than six hours. (Docket Nos. 113 ¶ 3; 115 ¶ 4.) However, it contends its managers employ various methods to ensure that employees are paid if they perform work during their meal break. (Docket Nos. 113 ¶3; 115 ¶¶ 5-7.) CHS has submitted twenty-seven declarations from hourly employees who state either that they have never had to perform work during meal periods, or that they have occasionally performed such work, but they reported the work time and were properly compensated. (Docket No. 116, Ex. C.) CHS has also submitted declarations from sixteen managers who each state, inter alia, that they instruct employees to report a missed meal period and are unaware of any policy or practice not to pay employees for time worked. (Id. Ex. E.) CHS attests that it has paid its employees a total of 77,423 missed meal periods from September 2005, when its current timekeeping system was first implemented, to August 6, 2008. (Docket No. 115 ¶¶ 3, 6.)
In reply, Plaintiffs filed twenty-seven additional affirmations from current or former CHS employees, which recite the same facts as those previously filed.*fn8 These consent plaintiffs hold or held the positions of registered nurse (12), charge nurse (1), staff nurse (1), licensed practical nurse (11), respiratory therapist (1), and dietary aide (1). (Docket No. 123, Ex. A.) Most, like the lead Plaintiffs, appear to have worked at a hospital, adult home, or nursing home-i.e., in-patient facilities.*fn9
A. Plaintiffs' Motion for Expedited Notice to Affected Employees
Congress enacted the FLSA in 1938 "to protect all covered workers from substandard wages and oppressive working hours, 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 Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed. 2d 641 (1981) (citation omitted). Among other protections, section 207(a)(1) of the FLSA provides that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1); Grochowski v. Phoenix Constr., 318 F.3d 80, 87 (2d Cir. 2003).
The FLSA permits one or more "similarly situated" employees alleging violations of the statute to institute a collective action. 29 U.S.C. § 216(b). Section 216(b) states, in relevant part, that an action to recover damages: may be maintained against any employer . . . by any one or more employees for and on 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 representative action under Rule 23 of the Federal Rules of Civil Procedure, where all persons in the defined class are bound by the case outcome unless they affirmatively "opt out," an employee does not become a party to an FLSA collective action unless he or she affirmatively "opts in" by filing written consent with the court.
Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 260 (S.D.N.Y. 1997). The purpose of the "opt in" language was "'to prevent[ ] large group actions, with their vast allegations of liability, from being brought [by unions] on behalf of employees who had no real involvement in, or knowledge of, the lawsuit.'" United Food & Commercial Workers Union Local 1564 of New Mexico v. Altertson's Inc., 207 F.3d 1193, 1200 (10th Cir. 2000) (quoting Arrington v. National Broad. Co., 531 F. Supp. 498, 501 (D.D.C. 1982)).
1. Conditional Certification
One day after filing their Complaint, Plaintiffs filed hundreds of written consent forms from individuals purporting to be current and former CHS employees (Docket Nos. 2-5), and moved for expedited notice to other potentially affected employees (Docket No. 7).*fn10
The Supreme Court has determined that district courts have discretion, in appropriate cases, to facilitate the process by which notice of the lawsuit is given to potential plaintiffs. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169-70, 110 S.Ct. 482, 107 L.Ed. 2d 480 (1989) (construing 29 U.S.C. § 216(b) in the context of an ADEA lawsuit); see also, Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 104 (S.D.N.Y. 2003) (while the FLSA has no provision for issuing notice in a collective action, it is well settled that district courts have the power to authorize notice). A determination of whether notice should issue necessarily includes a determination of whether to conditionally certify this lawsuit as a collective action.
A majority of district courts, including those within the Second Circuit, employ a two-step process to determine whether a lawsuit should proceed as an FLSA collective action.*fn11 See, e.g., Hens v. Clietlogic Operating Corp., 05 Civ. 381S, 2006 U.S. Dist. LEXIS 69021, at *9 (W.D.N.Y. Sept. 22, 2006); Zivali v. AT&T Mobility LLC, 08 Civ. 10310, 2009 U.S. Dist. LEXIS 74420, at *5-6 (S.D.N.Y. Aug. 24, 2009); Monger v. Cactus Salon & Spa's LLC, 08 Civ. 1817, 2009 U.S. Dist. LEXIS 60066, at *4 (E.D.N.Y. July 6, 2009); Ruggles v. WellPoint, Inc., 591 F. Supp. 2d 150, 157-58 (N.D.N.Y. 2008).
At the first step-the notice stage-the court determines, based on the pleadings, affidavits, and declarations, whether the named plaintiffs have demonstrated that the employees they seek to notify are "similarly situated." Hens, at *10; Bah v. Hoe Mania, Inc., 08 Civ. 9380, 2009 U.S. Dist. LEXIS 40803, at *8 (S.D.N.Y. May 13, 2009) (citation omitted). The evidentiary standard is lenient at this stage, the plaintiffs need make only a "modest factual showing" that they and the other putative collective action members "together were victims of a common policy or plan that violated the law." Rubery v. ButhNa-Bodhaige, Inc., 569 F. Supp. 2d 334, 336 (W.D.N.Y. 2008) (citation omitted); see also, Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998) (collecting cases). A plaintiff's burden on this step is minimal, "especially since the determination that potential plaintiffs are similarly situated is merely a preliminary one." Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005) (quoting Gjurovich, 282 F. Supp. 2d at 104 (S.D.N.Y. 2003) (internal quotation marks and citation omitted)).
The second step occurs after discovery is complete, when the court examines the evidentiary record and makes a factual finding as to whether the conditionally certified plaintiffs are, in fact, similarly situated to the lead plaintiffs. Romero v. Flaum Appetizing Corp., 07 Civ. 7222, 2009 U.S. Dist. LEXIS 80498, at *7-8 (S.D.N.Y. Aug. 17, 2009) (quoting Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006)). If the court determines the opt-in plaintiffs are not similarly situated, "the court will decertify the class, the claims of the opt-in plaintiffs will be dismissed without prejudice, and the class representatives may proceed to trial on their individual claims." Rubery, 569 F. Supp. 2d at 336. Alternatively, if the class description is shown to require modification, that can be accomplished at the second tier inquiry. Id. at 338 (citations omitted).
Here, Plaintiffs seek to notify "current and former hourly employees of defendants whose pay was subject to an automatic [meal period] deduction even when the employees should have been paid for their compensable work time." (Docket Nos. 1 ¶¶ 72-73; 8 at 1; 9-2 at 2.) I find this proposed class description is vague and not in accord with Plaintiffs' Complaint and affirmations, which, taken together, limit the proposed class to certain job titles and work locations.
Plaintiffs allege that CHS requires employees to work through all or part of a meal period to engage in patient care. The four lead Plaintiffs each work or worked as a nurse or respiratory therapist in a direct patient care, in-patient environment-specifically, a hospital or adult home. More than twenty consent plaintiffs who filed affirmations also are or were employed as a nurse or respiratory therapist in a CHS hospital, adult home, or nursing home. The lead Plaintiffs and consent plaintiffs each state CHS expected they would work through some or all of their lunch to care for patients and that they were subject to meal deductions when they did so. Under the lenient standard applicable at this first stage, the Complaint and employee statements, taken together, are sufficient to show that Plaintiffs often worked during their meal periods to attend to patient needs, and that this experience was shared by others working in the same job titles in similar facilities. The Court also finds Plaintiffs have made a modest factual showing of a practice of applying the automatic 30-minute meal deduction to these employees when they worked through part or all of their meal breaks. Plaintiffs attest to their own experiences, and to observing other employees perform work during their meal periods. The statements of the consent plaintiffs are in accord. In addition, one Plaintiff attests that other employees told her they were not paid when they performed work during meal periods. Compare Wraga v. Marble Lite Inc., 05 Civ. 5038, 2006 U.S. Dist. LEXIS 60457, at *4-5 (E.D.N.Y. Aug. 22, 2006) (granting plaintiff's motion based on complaint and single affidavit alleging failure to pay overtime where plaintiff stated he was aware, based on conversations, of others in a similar situation), with Prizmic v. Armour, Inc., 05 Civ. 2503, 2006 U.S. Dist. LEXIS 42627, at *2 (E.D.N.Y. June 12, 2006) (denying certification without prejudice where "[p]laintiff [had] not submitted any affidavit or documentation in support of the instant motion") (emphasis supplied); Diaz v. Electronics Boutique of Am., Inc., 2005 U.S. Dist. LEXIS 30382, (W.D.N.Y. Oct. 13, 2005) (denying conditional certification where, inter alia, plaintiff's allegation that time sheets were altered to avoid paying overtime were not alleged to have been at the direction of management or pursuant to a policy or practice, and there is no indication that plaintiff submitted a supporting affidavit or identified any other potential member of the class); Horne v. United Servs. Auto. Ass'n, 279 F. Supp. 2d 1231, 1234 (M.D. Ala. 2003) (plaintiff did not meet burden of showing that there were similarly situated individuals who would opt-in to lawsuit where he submitted only his own affidavit, alleging facts specific to him, and did not identify any other potential plaintiff).
However, the Complaint and affirmations are not sufficient to make even a "modest factual showing" that employees who worked in job titles other than those held by Plaintiffs, or were employed in other types of facilities, also were victims of a common policy or plan that violated the law. While Plaintiffs generally attest to observing that some other employees, like themselves, were unable to take an uninterrupted meal period, there is no indication their observations extended beyond the realm of direct patient care. Indeed, all specifically state that CHS expected employees would continue to work through some or all of their lunches "to take care of patients." (Docket No. 53, Ex. A-D ¶ 9; see also, Docket No. 123, Ex. A ¶ 9.) Impacted employees are identified in the Complaint as nurses, licensed practical nurses, aides, and "other health care workers," and more specifically in the supplemental affirmations as registered nurses, charge nurses, staff nurses, licensed practical nurses, and respiratory therapists.*fn12
One supplemental affirmation comes from a dietary aide. While the Court acknowledges that patients need food, clean sheets, and a variety of other services, the lead Plaintiffs, who provided nursing care and respiratory therapy, have not attested to any facts that would encompass dietary workers. The clear implication of their declarations is that employees were expected to work during their meal periods to attend to patient needs of "paramount importance"-i.e., those that presumably cannot wait until the end of a 30 minute meal period. I find this necessarily excludes hourly workers engaged in clerical, food service, maintenance and other positions that do not involve that same level of immediate and direct patient care. Moreover, while Plaintiffs observed that "some" other employees, like themselves, rarely were able to take an uninterrupted meal period, they have not identified any other employee by name or title. Thus, even taking all affirmations into account, there are no facts supporting the extension of a conditional class beyond the direct-patient-care titles represented therein-specifically, registered nurses, charge nurses, staff nurses, licensed practical nurses, and respiratory therapists.
Similarly, Plaintiffs' affirmations do not support extending the conditional class beyond in-patient facilities-i.e., hospitals, adult homes, and nursing homes. The lead Plaintiffs each attest to observing some other employees work through their meal breaks. There is no indication that their observations occurred outside Plaintiffs' own workplaces. Plaintiffs do not attest to any facts that implicate other types of CHS facilities or centers.*fn13
Similarly, there is no indication that the consent plaintiffs who filed affirmations and worked in hospitals, adult homes, or nursing homes observed employees outside their own work sites. Taken together, the declarants attest that they and some others were expected to work through all or part of their meal periods without pay to care for patients at the following in-patient facilities: Kenmore Mercy Hospital, Mercy Hospital of Buffalo, St. Joseph Hospital, Sisters of Charity Hospital, McAuley Residence, St. Catherine Laboure Health Care Center, ...