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Kevin Moore, On Behalf of Himself, and All Others Similarly Situated, and v. Eagle Sanitation

July 18, 2011

KEVIN MOORE, ON BEHALF OF HIMSELF, AND ALL OTHERS SIMILARLY SITUATED, AND ROGER SNYDER, INDIVIDUALLY, PLAINTIFFS,
v.
EAGLE SANITATION, INC., AND MICHAEL REALI, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:

I. PRELIMINARY STATEMENT

ORDER

Plaintiff Kevin Moore, on behalf of himself and all others similarly situated as well as Roger Snyder, individually (collectively "Plaintiffs") bring this action, seeking unpaid overtime compensation from Defendants Eagle Sanitation Inc. and Michael Reali (collectively "Defendants"), pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), as amended, 29 U.S.C. §§201 et seq. and the New York Labor Law.

Currently before the Court is Plaintiffs' motion for: (1) conditional certification as an FLSA collective action pursuant to 29 U.S.C. §216(b) ("Section 216(b)"); (2) Defendants' production of names and last known addresses of potential class members employed by Defendants from April 2005 through April 2011; and (3) Court authorization to post and circulate a proposed Notice of Pendency and Consent to Join Form to all individuals who are similarly situated in this potential collective action. See DE 8. Defendants have filed opposition to Plaintiffs' motion contending that Plaintiffs have not submitted sufficient evidence showing that other employees are similarly situated. See DE 23. Defendants also raise objections concerning the proposed Notice of Pendency and Consent to Join submitted by Plaintiffs. Id. Based on my review of the parties' submissions and the applicable case law, Plaintiffs' motion is hereby GRANTED to the extent set forth below.

II. BACKGROUND

Plaintiff Kevin Moore was employed by Defendants as a laborer and driver from approximately October 2006 until September 2010 with the primary job duties of driving, picking up, hauling and dumping private garbage containers. Compl. ¶¶ 11-12;Affidavit of Kevin Moore ("Moore Aff."), at ¶ 6, attached as Exhibit A to Plaintiffs' Motion (DE 8). Plaintiff Roger Snyder was also employed by Defendants as a laborer and driver from approximately February 2008 until August 2008 with the primary job duties of driving, picking up, hauling and dumping private garbage containers. Compl. ¶¶ 13-14; Affidavit of Roger Snyder ("Snyder Aff."), at ¶ 6, attached as Exhibit B to Plaintiff's Motion (DE 8). Defendants are engaged in the sanitation business with their principal place of business located in West Babylon, New York. Compl ¶¶ 16-17. Defendant Michael Reali is alleged to be the owner, operator, President, Vice-President, shareholder, corporate officer and Chief Executive Officer of Eagle Sanitation Inc., and, as such, has authority over personnel and payroll decisions. Compl. ¶¶ 20-30.

Plaintiffs contend that they were required to be paid overtime pay at the statutory rate of time and one-half the regular rate of pay after working more than 40 hours in a workweek. Compl. ¶¶ 35, 39. In most workweeks, Plaintiffs claim that they worked more than 40 hours for the Defendants during their employment. Compl. ¶¶ 36, 40. Further, Plaintiffs allege that Defendants failed to compensate them at the statutory minimum wage. Compl. ¶¶ 37, 41. The Complaint asserts that there are over twenty current and former employees who are similarly situated to the Plaintiffs in that they have also been denied overtime compensation. Compl. ¶ 45.

III. DISCUSSION

A. Conditional Certification

The FLSA provides, in pertinent part, as follows:

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. . . . An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) 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.

29 U.S.C. § 216(b). Section 216(b) provides an employee with a private right of action to recover overtime compensation and/or minimum wages. Id. (cited in Bifulco v. Mortgage Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009) (citations omitted)). "Although the FLSA does not contain a class certification requirement, such orders are often referred to in terms of 'certifying a class.'" Bifulco, 262 F.R.D. at 212 (citations omitted).

Courts within the Second Circuit apply a two-step analysis to determine whether an action should be certified as an FLSA collective action. First, the court determines whether the proposed class members are "similarly situated." Rodolico v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y. 2001). If the court decides in the affirmative, then the proposed class members must consent in writing to be bound by the result of the suit, or "opt-in." Id. (citing 29 U.S.C. § 216(b)) (additional citations omitted). The second step, which typically occurs after the completion of discovery, requires the court to make factual findings whether the class members are "actually 'similarly situated.'" Bifulco, 262 F.R.D. at 212. "At that juncture, the court examines the evidentiary record to determine whether the 'opt-in' plaintiffs are, in fact, similarly situated to the named plaintiff." Id. (citations omitted).

The instant decision concerns only the first step -- whether the proposed opt-in members are "similarly situated" such that conditional certification should be granted. At this stage, "the evidentiary standard is lenient," Rubery v. Buth-Na-Bodhaige, Inc., 569 F. Supp. 2d 334, 336 (W.D.N.Y. 2008), and "plaintiffs need only 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.'" Doucoure v. Matlyn Fodd, Inc., 554 F. Supp. 2d 369, 372 (E.D.N.Y. 2008) (quoting Hoffmann v. Sbarro, 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). Courts have repeatedly stated that Section 216(b)'s "similarly situated" requirement is "considerably less stringent" than the requirements for class certification under Rule 23. Rodolico, 199 F.R.D. at 481 (citing cases). "In making this showing, 'nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan' is required." Sexton v. Franklin First Fin., Ltd., No. 08-CV-4950, 2009 WL 1706535, at *3 (E.D.N.Y. Jun. 16, 2009) (quoting Scholtisek v. Eldre Corp., ...


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