The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Before the court is the plaintiffs' motion to conditionally authorize a collective action, pursuant to Section 216 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. Plaintiffs also request an order directing the defendants to furnish the names and last known addresses of those individuals in the collective action as well as authorization to post and circulate a Notice of Pendency and Consent to Join form to similarly situated individuals. Defendants oppose plaintiffs' motion on the ground that plaintiffs have failed to demonstrate that the potential class members are similarly situated. Defendants also challenge the proposed Notice of Pendency submitted by plaintiffs. For the following reasons, plaintiffs' motion is granted.
This action commenced with the filing of a Complaint on February 6, 2009. An Amended Complaint was filed on March 26, 2009.
Plaintiffs, Antonio Garcia ("Garcia"), Jose Amaya ("J. Amaya") and Neptali Amaya ("N. Amaya") (collectively referred to as "plaintiffs"), are all current or former employees of defendant Pancho Villa's of Huntington Station, Inc. ("Pancho Villa's Huntington Station"), which was formerly owned by defendant Agostino Abbatiello ("Abbatiello, Sr.") (sued herein as "Agostino Abbatvello") and is currently owned by defendant Agostino Abbatiello, Jr. ("Abbatiello, Jr.") (sued herein as "Agostino Abbatvello, Jr.").*fn1 Garcia was employed by defendants from September 2002 to January 2009 and again from March 2009 to the present, J. Amaya has been employed since December 2003, and N. Amaya was employed from March 2006 to April 2008. (Garcia Aff. ¶ 4; J. Amaya Aff. ¶ 4; N. Amaya Aff. ¶ 4.) During their employment, plaintiffs all assisted in the preparation and service of food and drinks, the dishwashing and cleaning of the restaurant, as well as general inventory and maintenance tasks. (Am. Compl. ¶¶ 14, 16, 18.)
Plaintiffs allege that they were denied overtime pay for hours worked in excess of forty hours per week. (Am. Compl. ¶¶ 135, 139, 143.) Plaintiffs allege that they all worked more than forty hours per week for most of their employment, with Garcia alleging that he often worked more than seventy hours per week, J. Amaya alleging that he often worked more than fifty hours per week and N. Amaya alleging that he often worked more than eighty hours per week. (Am. Compl. ¶¶ 134, 138, 142.) Plaintiffs allege that they were not compensated at a rate of one and one-half times their regular pay rate for those hours worked in excess of forty, as required by law. (Am. Compl. ¶¶ 135, 139, 143.) Plaintiffs further allege that other similarly situated employees have been unlawfully denied overtime compensation as well. (Am. Compl. 164-66.)
Plaintiffs bring this action pursuant to the FLSA, alleging that defendants' failure to pay them for their overtime hours violates Section 207 of that Act, as well as Section 650 of the New York Labor Law, 12 N.Y.C.R.R. § 137. Plaintiffs also allege that defendants failed to pay them minimum wage, in violation of the FLSA, 29 U.S.C. § 203, and New York Labor Law § 650. Plaintiffs further allege spread of hours violations, as well as unlawful tip retention and wage reduction by defendants, in violation of the New York Labor Law. Finally, plaintiffs allege retaliation, pursuant to the FLSA, 29 U.S.C. § 215, and New York Labor Law § 215.
Plaintiffs now seek conditional authorization to proceed as a collective action, pursuant to FLSA § 216, as well as permission to post and circulate their proposed Notice of Pendency and Consent to Join forms to former and current employees of defendants - who have been or are employed at all three locations - for the six years prior to the commencement of this action so that such similarly situated employees may be apprised of the within action and opt to join the litigation, if they so choose. This motion was initially filed on June 11, 2009. Oral argument was held before the undersigned on June 29, 2009, at which time the parties were afforded the right to conduct limited discovery - with respect to the issue of conditional certification - and to supplement their motion papers. (Order of Boyle J., dated June 29, 2009.) The parties did so and their supplemental papers were received by the Court in November and December 2009.
I. The Collective Action Standard
Section 216(b) of the FLSA provides a private right of action to recover unpaid overtime compensation "against any employer . . . by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). An employee cannot become a party to such an action, however, unless he or she provides consent, in writing, and such consent is filed in the court where the action is pending. See id.; see also Patton v. Thomson Corp., 364 F. Supp. 2d 263, 266 (E.D.N.Y. 2005) ("[O]ther employees can become plaintiffs, and thereby be bound by the action's determination, only by affirmatively acting to do so."). Courts have discretion to authorize sending notice to potential plaintiffs in a collective action. See Sobczak v. AWL Indus., Inc., 540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007) (citation omitted).
The "threshold issue" in deciding whether to authorize class notice in an FLSA action is whether plaintiffs have demonstrated that the potential class members are "similarly situated." Patton, 364 F. Supp. 2d at 266-67 (citing Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)); see also Sobczak, 540 F. Supp. 2d at 362 (citing cases). Although the term "similarly situated" is not defined in the FLSA or its implementing regulations, courts have interpreted it to require plaintiffs to 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." Sobczak, 540 F. Supp. 2d at 362 (quoting Hoffmann, 982 F. Supp. at 261) (additional citations omitted); see also Patton, 364 F. Supp. 2d at 267. "This burden 'is not a stringent one, and the Court need only reach a preliminary determination that potential plaintiffs are similarly situated.'" Patton, 364 F. Supp. 2d at 267 (quoting Hoffmann, 982 F. Supp. at 261); see also Sobczak, 540 F. Supp. 2d at 362 (stating that "[t]he burden at this initial stage is minimal"). A named plaintiff is not required to show "an actual FLSA violation" at this stage, but rather only that "a 'factual nexus' exists between the plaintiff's situation and the situation of other potential plaintiffs." Sobczak, 540 F. Supp. 2d at 362 (quoting Wraga v. Marble Lite Inc., No. 05 Civ. 5038, 2006 U.S. Dist. LEXIS 60457, 2006 WL 2443554, at *1 (E.D.N.Y. Aug. 22, 2006)); see also Jackson v. N.Y. Telephone Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995) (stating that "plaintiffs are only required to demonstrate a factual nexus that supports a finding that potential plaintiffs were subjected to a common discriminatory scheme").
Plaintiffs in the instant action have amply satisfied their burden. In addition to the affidavits of Garcia, J. Amaya, and N. Amaya, plaintiffs have also provided the Court with the affidavit of Ramon Martinez ("Martinez") - an opt-in plaintiff - and the deposition transcripts of defendants Abbatiello, Sr. and Abbatiello, Jr. Defendants have also provided the Court with the deposition transcripts of two of the opt-in plaintiffs - Evana Romero ("Romero") and Alvaro Santos ("Santos"). Having reviewed these submissions, the Court finds that the named plaintiffs and the potential plaintiffs are indeed similarly situated.
As demonstrated by plaintiffs' affidavits, all of the plaintiffs currently perform, or performed in the past, one or more of the following duties during their employment at Pancho Villa's Huntington Station: assisted in the preparation and service of food and drinks; cleaned the restaurant, including washing dishes; assisted in the organization and unloading of food and drink deliveries; and, performed general maintenance around the restaurant. (Garcia Aff. ¶ 5; J. Amaya Aff. ¶ 5; N. Amaya Aff. ¶ 5; Martinez Aff. ¶ 5.) All of the plaintiffs assert that they routinely work or have worked in excess of forty hours per week during their assigned shifts but were not provided overtime compensation for those excess hours. (Garcia Aff. ¶¶ 6, 8; J. Amaya Aff. ¶¶ 6, 8; N. Amaya Aff. ¶¶ 6, 8; Martinez Aff. ¶¶ 6, 8.) Moreover, all of the plaintiffs have provided the names of multiple other employees whom they claim performed the same or similar work, but who were also not paid appropriate overtime compensation. (Garcia Aff. ¶¶ 10, ...