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Karal Siewmungal, On Behalf of Himself and All Other v. Nelson Management Group Ltd.

March 3, 2012

KARAL SIEWMUNGAL, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED,
PLAINTIFF,
v.
NELSON MANAGEMENT GROUP LTD., HAZEL TOWERS COMPANY, ROBERT NELSON, ADAM NADEL, AND JOHN DOES # 1 - 10 DEFENDANTS.



The opinion of the court was delivered by: Cogan, District Judge.

MEMORANDUM DECISION AND ORDER

Plaintiff Kawal Siewmungal commenced this action under the Fair Labor Standards Act ("FLSA"), on behalf of himself and others similarly situated, seeking unpaid overtime compensation from defendants Nelson Management Group, Ltd. ("Nelson"), Hazel Towers Company, L.P. ("Hazel Towers"), Robert Nelson, Adam Nadel, and John Does #1-10. Plaintiff seeks conditional certification as a collective action under Section 216(b) of the FLSA, as well as permission to send court-authorized notice to all similarly situated current and former security guards employed by the defendants. In order to facilitate such notice, plaintiff also moves for an Order to direct defendants to disclose the names and last known addresses of current and former employees who are potential collective action members.

For the reasons stated below, plaintiff's motion for conditional certification, court authorized notice, and disclosure of contact information is granted. Plaintiff's proposed form of notice shall be revised and agreed to by the parties as described below.

BACKGROUND

Nelson is a real estate property management group, which manages and/or owns numerous residential buildings throughout New York City. Hazel Towers, a single residential apartment building located at 1730-1740 Mulford Avenue, Bronx, New York, is one of the buildings managed by Nelson. Nelson and the Hazel Towers Company possess common ownership and management, with Robert Nelson and Adam Nadel respectively serving as principal and officer for both entities.

One of the services that Nelson provides in buildings that it manages is to furnish security guards. In June 2002, Nelson hired plaintiff as a security guard and assigned him to the Hazel Towers building. Plaintiff worked exclusively at the Hazel Towers Building and was never transferred to any other property. Originally, plaintiff's pay stubs listed Nelson Management as his employer. At some point, that changed, and Hazel Towers became listed as his employer.

Plaintiff avers that defendant Adam Nadel worked out of Nelson's office in Queens, and only visited the Hazel Towers building about once a week. Thus, when plaintiff needed to speak to Nadel, he would call him at Nelson's offices, not at Hazel Towers. Plaintiff recalls Nadel discussing other buildings that he was responsible for managing. Plaintiff also avers that when his supervisor at Hazel Towers was fired, the supervisor was summoned to Nelson's office for that purpose, and that the security cameras at Hazel Towers are monitored by Nelson employees out of Nelson's offices, not at Hazel Towers. Plaintiff also alleges that when a porter at Hazel Towers was promoted to superintendent, that employee was reassigned to another building managed by Nelson.

Nadel, in turn, alleges that all security guards who are "employed by Hazel Towers" work "exclusively at Hazel Towers."

Beginning around 2007, plaintiff claims that his regular work schedule was forty-eight hours a week, which included four standard eight hour shifts, plus one "double shift" of sixteen hours. Plaintiff was paid by the defendants at an hourly rate, but alleges that he was not paid the "time-and-a-half" overtime premium required under the FLSA for hours worked in excess of forty hours a week. Due to his communications with other security guards employed at the Hazel Towers Building, plaintiff allegedly has learned that these other guards have similarly been denied the mandatory overtime premiums due to them for working over forty hours per week. Plaintiff concedes that he does not have first-hand knowledge of the compensation practices or any specific instances of withholding of overtime premiums at any other property managed by Nelson Management.

DISCUSSION

I. Scope of the Collective Action

Section 216(b) of the FLSA provides an employee with a private cause of action against an employer for unpaid overtime compensation and/or minimum wages. Bifulco v. Mortg. Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009) (citing 29 U.S.C. § 216(b)). Under the FLSA, an employee may bring a collective action on behalf of himself, as well as others "similarly situated," so long as any employee wishing to join the action gives his consent in writing to the court in which the action is brought. Sobczak v. AWL Indus., Inc., 540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007) (quoting 29 U.S.C. § 216(b)). The Second Circuit has recognized that district courts have the discretion to authorize the distribution of notice to any potential plaintiffs in order to inform them of their ability to opt-in to the collective action. See Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010); Searson v.Concord Mortg. Corp., No. 07 Civ. 3909, 2009 WL 3063316, *7 (E.D.N.Y. Sept. 24, 2009); Bifulco, 262 F.R.D. at 216; Sobczak, 540 F. Supp. 2d at 362.

A district court may authorize an opt-in notice for a collective action if the plaintiff employee has demonstrated that the potential action members are "similarly situated" with respect to a FLSA violation. Myers, 624 F.3d at 555; Cohen v. Gerson Lehrman Group, Inc., 686 F. Supp. 2d 317, 326 (S.D.N.Y. 2010); Cruz v. Lyn-Rog Inc., 754 F. Supp. 2d 521, 524 (E.D.N.Y. 2010); Bifulco, 262 F.R.D. at 213; Sobczak, 540 F. Supp. 2d at 362. Although the FLSA has not explicitly defined the phrase "similarly situated," courts have found that a plaintiff could meet this burden by making "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." Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 58 (E.D.N.Y. 2011) (quoting Hoffman v. Sbarro, 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). Numerous courts in the Second Circuit have acknowledged that the plaintiff's burden at this initial stage is lenient. See Moore, 276 F.R.D. at 58 (citing Rubery v. Buth Na Bodhaige, Inc., 569 F. Supp. 334, 336 (W.D.N.Y. 2008)); Cruz, 754 F. Supp. 2d at 524 ("[C]onsiderably less stringent" than class certification under Rule 23); Sobczak, 540 F. Supp. 2d at 362 ("Burden at this initial stage is minimal"); Wraga v. Marble Lite, Inc., No. 05 Civ. 5038, 2006 WL 2443554, *1 (E.D.N.Y. Aug. 22, 2006).

In making this minimal showing, courts generally require "nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan." Cruz, 754 F. Supp. 2d at 524 (quoting Sexton v. Franklin First Fin., Ltd., No. 08 CV 4950, 2009 WL 1706535, at *3 (E.D.N.Y. June 16, 2009). Courts do not require proof of an actual FLSA violation by the employer, "but rather that a 'factual nexus' exists between the plaintiff's situation and the situation of other potential plaintiffs." Moore, 276 F.R.D. at 58 (quoting Sobczak, 540 F. Supp. 2d at 362). This preliminary determination is "typically based on the pleadings, affidavits, and declarations" submitted by the party seeking conditional certification. Id. (quoting Sexton, 2009 WL 1706535, at *3). see also Hallisey v. Am. Online, Inc., No. 99 Civ. 3785, 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008) ("Plaintiffs may satisfy this requirement by relying on their own pleadings, affidavits, declarations.."). However, "the modest factual showing [conditional certification] cannot be satisfied simply by unsupported assertions." Rosario v. Valentine Ave. Disc. Store, Co., No. 10 Civ. 5255, 2011 WL 5244965, *4 (E.D.N.Y. Nov. 2, 2011) (quoting Myers, 624 F.3d at ...


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