The opinion of the court was delivered by: John G. Koeltl, District Judge:
The plaintiffs, Frederick L. Winfield, Zulma G. Muniz, James Steffensen, Adoram Shen, and Digna Ruiz, and other putative class members (collectively the "plaintiffs"), move for this Court to grant a conditional certification and provide notice to a proposed nationwide class pursuant to § 216(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. The defendant, Citibank, N.A. ("the defendant"), opposes this motion, arguing that the class should not be conditionally certified because the plaintiffs have failed to demonstrate that they are similarly situated to one another and to potential optin plaintiffs, and have also failed to show that they and potential opt-in plaintiffs were subject to a common, unlawful policy or practice. The defendant also moves to strike all hearsay statements relied upon by the plaintiffs in their papers in connection with this motion.
The plaintiffs were previously employed by the defendant as "Personal Bankers." (Winfield Am. Compl. ¶ 12; Ruiz Compl. ¶ 9.) They bring this motion for conditional certification with respect to two actions that have been consolidated for the purposes of this motion and general pre-trial proceedings. In the Ruiz action, plaintiff Digna Ruiz, a resident of New York, brings claims under the FLSA and the New York Labor Law ("NYLL"), § 650 et seq. (Ruiz Compl. ¶¶ 32-41.) She seeks to bring her FLSA claims on behalf of all current and former Personal Bankers employed by the defendant nationwide since August 6, 2007, and her NYLL claims on behalf of all current and former Personal Bankers employed in the defendant's New York branches since August 6, 2004. (Ruiz Compl. ¶¶ 3-4.) Dara Ho, also a New York resident, has opted-in to this action.
In the Winfield action, plaintiffs Frederick Winfield, Zulma G. Muniz, James Steffensen, and Adoram Shen bring claims under the FLSA, purportedly on behalf of all Personal Bankers employed at the defendant's branches nationwide since September 22, 2007.*fn1 (Winfield Am. Compl. ¶ 13.) Plaintiffs Winfield, Muniz and Shen also bring purported class claims on behalf of District of Columbia, Illinois, and California subclasses, respectively, alleging violations of those states' laws. (Winfield Am. Compl. ¶¶ 14-16.)
As Personal Bankers, the plaintiffs' primary job responsibility was to sell the defendant's financial products and services to the general public in Citibank branches. (Winfield Am. Compl. ¶ 21; Ruiz Compl. ¶ 15). The plaintiffs were employed in several different Citibank branches throughout the United States. The plaintiffs allege that all Personal Bankers were classified as "non-exempt" employees and were therefore eligible for overtime payments under federal and state laws. (Winfield Am. Compl. ¶ 22; Ruiz Compl. ¶ 9.) The plaintiffs contend that the defendant engaged in a policy and practice of failing to pay overtime compensation for all hours worked in excess of forty hours per week.
The plaintiffs assert that the defendant employed a "dual-edged" policy of strictly limiting the amount of overtime that Personal Bankers could accrue while imposing rigorous sales quotas that could not feasibly be met in a forty-hour work week. The plaintiffs contend that Personal Bankers faced an untenable position where they needed to work overtime to meet sales quotas that, if not met, would subject them to discipline or termination, but were told by their Branch Managers*fn2 that accruing any such overtime was forbidden. (Ho Dep. 124-30;
Muniz Dep. 44, 45, 48-49, 51, 53-54, 141; Ruiz Dep. 98-99, 157-60, 336-37, 344; Shen Dep. 143-44, 172, 198-99; Steffensen Dep. 128-29, 161-64; 167, 171; Winfield Dep. 176, 189, 196-97, 321-22.) The result of these conflicting imperatives, according to the plaintiffs, was that Personal Bankers worked overtime but were not compensated for all hours worked, because their Branch Managers instructed or pressured them not to record these hours or altered timesheets to remove overtime hours recorded. (Ho Dep. 124-30, 219, 240, 242-43; Muniz Dep. 48-49, 51, 53-54, 141; Winfield Dep. 182, 215, 241-42; Steffensen Dep. 161-64; Ruiz Dep. 157-60; Shen Dep. 143-44.) The plaintiffs also submit four signed affidavits in support of their motion from other Personal Bankers who similarly state that they were instructed not to report or were discouraged from reporting overtime hours or had their timesheets altered by Branch Managers. (Ash Decl. ¶¶ 7, 10-12; Handy Decl. ¶¶ 10-13; Ijaz Decl. ¶¶ 8, 10; Wilson Decl. ¶¶ 7, 10-11.)
The plaintiffs now seek an order pursuant to 29 U.S.C. § 216(b) granting conditional certification and authorizing the plaintiffs to send notice to all Personal Bankers identified on a Class List provided by the defendant, representing approximately 4,000 Personal Bankers employed by the defendant nationwide during the FLSA class periods identified in the complaints. (Decl. of Murielle J. Steven Walsh ("Walsh Decl."), Ex. 7.) The plaintiffs have included a proposed notice to all prospective class members and consent to joinder. (Walsh Decl. Ex. 2.)
The defendant opposes the plaintiffs' motion, arguing that the plaintiffs have failed to show that they are similarly situated to one another and to potential opt-in plaintiffs nationwide. The defendant also contends that the plaintiffs have not shown that they were subject to a common, unlawful policy or practice rather than merely to anomalous FLSA violations committed by individual, rogue managers. The defendant argues that, even if the Court does conditionally certify the class, it should not authorize nationwide notice but should instead limit notice to those branches where the plaintiffs or declarants personally worked. Finally, the defendant objects to certain aspects of the plaintiffs' proposed notice.
The defendant also brings a motion to strike all hearsay statements relied upon by the plaintiffs in their papers in connection with this motion.
Under § 216(b) of the FLSA, employees may maintain actions to recover unpaid wages collectively where the employees are "similarly situated" and give consent in writing "to become . . . a party [to the action] and such consent is filed [with the Court]." 29 U.S.C. § 216(b). "District courts have discretion, in appropriate cases, to implement § 216(b) by facilitating notice to potential plaintiffs of the pendency of the action and of their opportunity to opt-in as represented plaintiffs." Klimchak v. Cardrona, Inc., No. 09 Civ. 4311, 2011 WL 1120463, at *4 (E.D.N.Y. Mar. 24, 2011) (internal quotation marks and alterations omitted) (quoting Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010)). The Second Circuit Court of Appeals has endorsed a two-step method of certification in an opt-in collective action under the FLSA. Myers, 624 F.3d at 554-55.
At the first step, the Court must determine whether it is appropriate to send notice to potential opt-in plaintiffs "who may be 'similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred," Myers, 624 F.3d at 555, thus issuing a "conditional certification" of the collective action, see Schwerdtfeger v. Demarchelier Mgmt., Inc., No. 10 Civ. 7557, 2011 WL 2207517, at *3 (S.D.N.Y. June 6, 2011); Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469, 475 (S.D.N.Y. 2010) ("Orders authorizing notice are often referred to as orders 'certifying' a collective action, even though the FLSA does not contain a certification requirement.").
In exercising its discretion at the conditional certification stage, "the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations." Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 644 (S.D.N.Y. 2010) (internal citations omitted). The plaintiffs need only make a "modest factual showing that they and potential opt-in plaintiffs together were victims of a common ...