The opinion of the court was delivered by: Gold, Steven M., U.S.M.J.:
Plaintiffs bring this action on behalf of themselves and all similarly situated Sales Associates of defendants, seeking unpaid wages allegedly owed pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and New York State Labor Law. With respect to their FLSA claim, plaintiffs allege that defendants regularly failed to pay plaintiffs overtime wages.*fn1 Compl. ¶¶ 59-60. More specifically, plaintiffs contend that they were paid a weekly salary based upon a forty-hour week, regardless of the number of hours they actually worked.
Plaintiffs move for an order (1) conditionally certifying this action as a collective action on behalf of all current and former "Sales Associates" employed by defendants since November 15, 2008, (2) authorizing an "opt-in" notice of this action to all employees within the class, and approval of a proposed notice, and (3) compelling production by the defendants of relevant information identifying individuals within the proposed class.*fn2 Docket Entries 18-20. Defendants oppose certification, arguing that plaintiffs have failed to establish that the members of the proposed collective action are similarly situated or that defendants have an unlawful policy. Docket Entry 26. In the alternative, if the court certifies a collective action, defendants contend that the class and the proposed notice should be modified. Id.
Section 216(b) of FLSA provides that "one or more employees" may move to have their case certified as a collective action "for and in behalf of . . . themselves and other employees similarly situated." See also Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 103 (S.D.N.Y. 2003). Upon granting conditional certification, the court may authorize a FLSA plaintiff to provide written notice to potential plaintiffs of their right to join in the action. Id. at 104. After receiving the written notice, employees who seek to join the collective action "must 'opt in' and consent in writing." Morales v. Plantworks, Inc., 2006 WL 278154, at *1 (S.D.N.Y. Feb. 2, 2006). See also 29 U.S.C. § 216(b). "[O]nly potential plaintiffs who 'opt-in' can be 'bound by the judgment' or 'benefit from it.'" Gjurovich, 282 F. Supp. 2d at 104.
Courts have broad discretion over whether to grant certification, what
discovery to allow, and what form of notice to provide.*fn3
Mendoza v. Casa de Cambio Delgado, Inc., 2008 WL 938584, at
*1 (S.D.N.Y. Apr. 7, 2008). Certification of a collective action "is
only a preliminary determination as to which potential plaintiffs may
in fact be similarly situated," and "merely provides an opportunity
for potential plaintiffs to join." Bowens v. Atl. Maint. Corp., 546 F.
Supp. 2d 55, 81-82 (E.D.N.Y. 2008); Gjurovich, 282 F. Supp. 2d at
104). "After discovery, . . .
the court examines with a greater degree of scrutiny whether the
members of the plaintiff class -- including those who have opted in --
are similarly situated." Laroque v. Domino's Pizza, LLC, 2008 WL
2303493, at *4 (E.D.N.Y. May 30, 2008) (citing Jacobs v. New York
Foundling Hospital, 483 F. Supp. 2d 251, 265 (E.D.N.Y. 2007)).
To proceed with a collective action, "[t]he named plaintiff must . . . show that he is similarly situated to the prospective plaintiffs who would benefit from notice of the right to join." Bowens, 546 F. Supp. 2d at 81. Although neither FLSA nor its implementing regulations define the term "similarly situated," courts in this Circuit "have held that plaintiffs can 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." Morales, 2006 WL 278154, at *2; see also Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010); Rodolico v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y. 2001) ("Generally, at the notice stage, courts require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan."). To determine whether this minimal burden has been met, courts consider the "'(1) disparate factual and employment settings of the individual plaintiffs; (2) defenses available to defendants which appear to be individual to each plaintiff; and (3) fairness and procedural considerations counseling for or against notification to the class.'" Laroque, 2008 WL 2303493, at *5 (quoting Guzman v. VLM, Inc., 2007 WL 2994278, at *3 (E.D.N.Y. Oct. 11, 2007)). "Courts regularly grant motions for approval of a collective action notice based upon employee affidavits setting forth a defendant's plan or scheme to not pay overtime compensation and identifying by name similarly situated employees." Sobczak v. AWL Industries, Inc., 540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007) (internal quotation marks omitted).
In support of their certification motion, the five named plaintiffs have submitted declarations stating that each was employed by defendants as a Sales Associate and was not compensated for overtime hours worked.*fn4 Ack Decl. ¶¶ 1, 11, 12; Hodgson Decl. ¶¶ 1, 11; Peralta Decl. ¶¶ 1, 14; Birch Decl. ¶¶ 1, 12; Reyna Decl. ¶¶ 1, 12.*fn5 Moreover, each plaintiff describes a similar practice, pursuant to which he was told he would be working a forty-hour week and paid accordingly but was in fact required to work a substantial number of overtime hours. Ack Decl. ¶¶ 8, 11; Hodgson Decl. ¶¶ 7, 10; Peralta Decl. ¶¶ 8, 13; Birch Decl. ¶¶ 8, 11; Reyna Decl. ¶¶ 8, 11. All, with one exception, further state that they are aware and have personal knowledge that "other Sales Associates regularly worked hours beyond forty (40) per week and received paychecks showing only forty (40) hours of work per week." Ack Decl. ¶ 21; Hodgson Decl. ¶ 21; Birch Decl. ¶ 20; Reyna Decl. ¶ 20.
Plaintiffs have thus presented evidence indicating that they and other Sales Associates did not receive the wages to which they were entitled by law.*fn6 As stated above, plaintiffs' burden at this stage is minimal, and courts have authorized collective actions under circumstances comparable to those presented here. Compare Bowens, 546 F. Supp. 2d at 82 (certifying a collective action where plaintiff submitted a declaration confirming that other workers were not paid) and Sobczak, 540 F. Supp. 2d at 362-63, with Morales, 2006 WL 278154, at *3 (denying certification because "plaintiffs have offered only a conclusory allegation in their complaint; they have offered nothing of evidentiary value").
Defendants oppose certification of any collective action, arguing that 1) plaintiffs failed to establish that other similarly situated employees exist, 2) plaintiffs failed to establish an unlawful common policy, and 3) individualized inquiries of whether plaintiffs or any opt-in plaintiffs are exempt under the FLSA outside sales exemption predominate. As part of their opposition, defendants submitted three declarations: one from William DeLuca, the Senior Vice-President of Sales and Marketing, and one each from two Brooklyn supervisors who supervised some of the named plaintiffs.*fn7
1.Whether Other Similarly Situated Employees Exist
Defendants contend that plaintiffs' employment experiences are limited not only to its Brooklyn Sales Division, but to working only on chain store accounts and under two particular supervisors. Defendants argue that plaintiffs cannot establish that Sales Associates with a different supervisor, or those who work in any of defendants' other four facilities, or on other types of accounts, are similarly situated. Def. Opp. 7-11, Docket Entry 26.
One prong of defendants' argument appears to be that the duties of Sales Associates in other locations and under different supervisors precludes a finding that other Sales Associates are similarly situated to plaintiffs. DeLuca Decl. ¶ 4, Docket Entry 24 (stating that "the duties and work experiences of Sales Associates . . . in Brooklyn are distinctly different than other Sales Associates in the Company"). Defendants' argument that each Sales Associate's duties vary depending on the supervisor, location, and type of account, however, misses the mark. Any question concerning the responsibilities of Sales Associates, and how the duties may differ amongst the various locations and under particular supervisors, may be relevant to whether a particular Sales Associate is exempt under FLSA. Potential exemptions, however, as discussed below, are not properly considered at the conditional certification stage. Sexton v. Franklin First Fin., Ltd., 2009 WL 1706534, at *6 n.4 (E.D.N.Y. Aug. 14, 2008). See also Raimundi v. Astellas U.S. LLC, 2011 WL 5117030, at *1 (S.D.N.Y. Oct. 27, 2011) (stating that "[v]ariations in sales representatives' workdays and expertise does not establish as a matter of law that they are not similarly situated" and certifying a nationwide collective action of defendants' sales representatives).
Defendants also contend that plaintiffs' experiences were limited to the "unique practices of [two Brooklyn supervisors] Gadson and Diaz," and do not reflect the typical experience of Sales Associates.*fn8 Def. Opp. 10. For the reasons discussed below, and in light of plaintiffs' minimal burden at this stage of the litigation, I conclude that defendants have failed to rebut plaintiffs' demonstration of a company-wide policy. At least two plaintiffs spoke with Gadson about overtime compensation and, according to their declarations, Gadson told each of them that "the company d[oes] not pay overtime." Ack Decl. ¶ 24 (emphasis added); see ...