The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Plaintiffs Cemil Gurkan Guzelgurgenli ("Guzelgurgenli"), Hasan Kasikci
("H. Kasikci"), and Bilal Habes Kasikci ("B. Kasikci", collectively
"the Plaintiffs"), filed a putative collective action suit against
various defendants under the Fair Labor Standards Act, 29 U.S.C. §
201, et seq. ("FLSA") and the New York State Labor Law ("N.Y. Labor
Law"), to recover unpaid overtime compensation, as well as claims
under the N.Y. Labor law for spread of-hours
compensation. The Plaintiffs now move for conditional
certification of the class for the collective action and to facilitate
notice under 29 U.S.C. §216(b). For the reasons set forth below, the
motion is granted in part and denied in part.
The Plaintiffs are employees who worked for Defendants Prime Time Specials Inc., d/b/a Centereach Domino's ("Prime Time"), Christopher Hanley ("Hanley"), and John Does #1--10 ("the John Does" and together with Prime Time and Hanley, "the Defendants"). The Plaintiffs' responsibilities included cashier, kitchen, cleaning, delivery and other general pizza restaurant services. (Compl., ¶ 40.)
In the complaint, the Plaintiffs allege that Prime Time is an enterprise consisting of seven pizza stores within Long Island, New York, with "each individual store location under common direction, management and control". (Compl., ¶ 10.) The Plaintiffs do not identify these seven locations in the complaint. However, in declarations submitted in support of the instant motion, the Plaintiffs identify eight locations they allege are owned and operated by the Defendants: 2430 Middle Neck Country Road, Centereach, NY 11720 ("Centereach"); 967 Main Street, Suite 10, Holbrook, NY 11741 ("Holbrook"); 5640 Sunrise Highway, Suite 30, Sayville, NY 11782 ("Sayville"); 1079 N. Country Road, Stony Brook, NY 11790 ("Stony Brook"); 179 Medford Ave., Patchogue, NY 11772 ("Patchogue"); 229 Route 112, Unit 1, Coram, NY 11727 ("Coram"); 863 W. Jericho Turnpike, Smithtown, NY 11787 ("Smithtown"); and 725 Route 25A, Miller Place, NY 11764 ("Miller Place"). (Guzelgurgenli Decl., ¶ 13; H. Kasikci Decl., ¶ 12; B. Kasikci Decl., ¶ 9.)
The Plaintiffs allege that Hanley and the John Does are "the majority
shareholders and officers, directors and/or managing agents of Prime
Time, along with any other corporate entities
owning pizza stores within the "Centereach Dominos"
enterprise, who participated in the day-today operations of [Prime
Time]". (Compl., ¶ 11.) Defendant Christopher Hanley admits that he is
"the majority shareholder and officer, director and/or managing agent
of Prime Time" (Answer, ¶ 11), and that he owns and operates through
Prime Time the following six pizza franchise locations: Holbrook,
Coram, Sayville, Patchogue, Stony Brook and Centereach. (Hanley Aff.,
On September 18, 2011, the Plaintiffs commenced this present suit as a putative collection action against the Defendants. In their Complaint, the Plaintiffs allege that, during the period of their employment, they were subject to a policy and practice requiring them to work in excess of forty hours per week without adequate compensation under the federal overtime pay laws. The Plaintiffs allege that other laborers working for the Defendants who performed similar job responsibilities at all of the Defendants' locations were also deprived of lawful pay.
On or about January 30, 2012, the Plaintiffs filed the current motion, requesting that the Court: (1) conditionally certify this action as a collective action for purposes of notice and discovery pursuant to § 216(b) of the FLSA; (2) authorize the Plaintiffs' counsel to mail the notice of pendency to all putative plaintiffs and to post a copy of the notice of pendency at all of the Defendants' alleged locations, (3) approve the form and content of the Plaintiffs' proposed notice of pendency and reminder notice, (4) order the Defendants to produce to the Plaintiffs' counsel the contact information for each putative plaintiff who was employed by the Defendants from on or after September 19, 2008 to the present, and (5) authorize a 90--day notice period for putative plaintiffs to join this action.
The Defendants oppose the conditional certification and argue that if
conditional certification is granted, it should be limited to delivery
drivers at the Centereach location. In
addition, if conditional certification is granted,
the Defendants contend that: (1) it should only be granted as to
persons employed by the Defendants in the last two years; (2) the
opt-in period should be 60-days; and (3) the Court should not permit
the Plaintiffs to send a reminder notice. Although the Plaintiffs
address the arguments regarding the scope of conditional certification
in their reply, they do not address the applicable opt-in period, or
the request for a reminder notice.
28 U.S.C. § 216(b) provides that parties suing for relief under 28 U.S.C. §§ 206, 207, and 215(a)(3) may proceed "for and in behalf of himself or themselves and other employees similarly situated." A proceeding under this provision is traditionally termed a "collective action." Here, the Plaintiffs seek relief under Section 207 of the FLSA, which governs overtime compensation. Thus, the collective action provision of Section 216(b) is applicable.
A collective action under Section 216 is distinguishable in several ways from the more common class action under Fed. R. Civ. P. 23. First, a collective action requires class members to opt into the case, rather than opt out. See, e.g., Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y. 2007). In addition, a party seeking conditional certification of a collective action need not demonstrate the Rule 23 requirements of numerosity, commonality, typicality, and adequacy of representation. See Scholtisek v. Eldre Corp., 229 F.R.D. 381, 386 (W.D.N.Y. 2005).
Certification of a collective action class is analyzed in two steps.
The first step, called conditional certification, is generally
completed prior to the commencement of any significant discovery.
Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y.
2007). At this stage, the plaintiff must 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." Realite v. Ark
Rests. Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998). The standard
applied at this stage is "fairly lenient." Iglesias-Mendoza, 239
F.R.D. at 367 (internal quotations and citations omitted). "Plaintiffs
may satisfy this requirement by relying on their own pleadings,
affidavits, declarations, or the affidavits and declarations of other
potential class members." Hallissey v. America Online, Inc., No.
99-CV-3785, 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008). Once a
court conditionally certifies a collective action, it may then
facilitate notice to all of the putative class members by approving a
notice form. Lynch, 491 F. Supp. 2d at 367 (citing Hoffmann-La Roche
Inc. v. Sperling, 493 U.S. 165, 173, 110 S. Ct. 482 (1989)).
The second step in a collective action certification generally arises only after discovery is completed, and only if it appears that some or all members of a conditionally certified class are not similarly situated. In that case, a defendant may move to challenge certification, at which point a court will conduct a more searching factual inquiry as to whether the class members are truly similarly situated. Lynch, 491 F. Supp. 2d at 367.
Here, the Plaintiffs are moving only for pre-discovery conditional certification of the collective action class. As such, the Court need only apply the lenient standard requiring that the Plaintiffs make a "modest showing" that the putative class members are similarly situated.
As the Second Circuit recently noted in Myers v. Hertz Corp., 624 F.3d
537 (2d Cir. 2010), "[t]he 'modest factual showing' cannot be
satisfied simply by 'unsupported assertions,' but it should remain a
low standard of proof because the purpose of this first stage is
merely to determine whether 'similarly situated' plaintiffs do in fact
exist". Id. at 555 (internal citations
omitted). Accordingly, in deciding whether to grant
the Plaintiffs' motion, the Court must merely find "'some identifiable
factual nexus which binds the named plaintiffs and potential class
members together as victims' of a particular practice." Hoffmann v.
Sbarro Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)) (quoting Heagney
v. European Am. Bank, 122 F.R.D. 125, 127 (E.D.N.Y. 1988)); see Schwed
v. Gen. Elec. Co., 159 F.R.D. 373, 375--76 (N.D.N.Y. 1995)
("[P]laintiffs need only describe the potential class within
reasonable limits and provide some factual basis from which the court
can determine if similarly situated potential plaintiffs exist").
The Plaintiffs' proposed notice is addressed to "[a]ll current and former in-store hourly employees, assistant store managers, store managers, delivery drivers, and persons in similar positions employed by Prime Time Specials Inc., d/b/a Centereach Domino's and Christopher Hanley. . . , who worked for Domino's at any time on or after September 19, 2008 to [the date of this order]." (Pelton Decl., Ex. F.)
As an initial matter, the Court agrees with the Defendants that the Plaintiffs cannot meet their burden with respect to conditionally certifying a class that includes "store managers". None of the Plaintiffs allege that they were store managers; are familiar with the responsibilities of store managers; or that they have knowledge of how the Defendants compensated store managers. In addition, in support of the contention that assistant store managers were improperly classified as exempt from the FLSA overtime requirements, plaintiff Guzelgurgenli states in his declaration that, "Insofar as there was a need for managerial work, such work was performed by the Store Manager". (Guzelgurgenli Decl., ¶ 9.) Accordingly, the Plaintiffs have failed to meet even the modest showing that they are similarly situated to store managers.
However, as set forth below, the Court finds that the Plaintiffs have
met their burden with respect to conditionally certifying a class of
in-store hourly employees, assistant store managers,
and delivery drivers. At the conditional
certification stage, the Plaintiffs "can satisfy their 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.'" Laroque v. Domino's Pizza LLC, 557 F.
Supp. 2d 346, 352 (E.D.N.Y. 2008) (quoting Hoffmann, 982 F. Supp. at
261). Here, the Plaintiffs allege the existence of a common policy to
deny employees proper compensation for their overtime hours. As this
Court has previously noted, "A policy that requires employees to work
overtime without compensation certainly qualifies as a common policy
or plan under the FLSA. Numerous courts in this Circuit have granted
conditional certification on precisely those grounds." Alvarez v. IBM
Restaurants, Inc., 839 F. Supp. 2d 580, 586--87 (E.D.N.Y. 2012)
(Spatt, J.) (collecting cases).
In addition to the allegations in the complaint, each of the named Plaintiffs submitted a signed declaration in which they allege that the Defendants paid them for hours worked over forty per week at their straight time wage, rather than at a rate of time and half as required by the FLSA, and that this was the common policy and practice at all of the locations that the Defendants owned and operated.
Guzelgurgenli worked as an assistant manager at the Centereach store
from July 1, 2008 through July 29, 2011. He asserts that as an
assistant manager, he "worked under a store manager" and "had the same
responsibilities as [his] non-manager colleagues", including "taking
telephone orders, making pizza, putting together pizza boxes, and
cleaning the store". (Guzelgurgenli Decl., ¶¶ 2, 3.) Guzelgurgenli
contends that, from July 1, 2008 through April 11, 2011, he worked
approximately 60--65 hours per week. (Id., ¶4.) During the first year
of his employment as an assistant manager, Guzelgurgenli alleges that
he was paid an hourly wage by check for the first forty hours per week
that he worked, and that for all hours worked over forty
per week he was paid overtime compensation in cash at
his straight-time wage. (Id., ¶¶ 6,7.) Subsequently, Gurzelgurgenli
alleges that the Defendants converted him from an hourly employee to a
salaried employee. Although his method of compensation changed,
Gurzelgurgenli contends that the amount of compensation remained the
same because his salary was consistent with the amount of money he was
being paid each week as an hourly employee at the straight time wage.
In addition, his job responsibilities allegedly remained the same, and
he was still required to clock in and clock out each day. (Id., ¶¶
H. Kasikci has held multiple positions with the Defendants, and remains currently employed at the Centereach store as a delivery driver. Although not alleged in the complaint, in his declaration, H. Kasikci states that he worked as a delivery driver at the Smithtown store from May of 2007 through approximately September of 2008, and that he was compensated for hours worked over forty per week at his regulate rate in the form of a "bonus" in his check. H. Kasikci further alleges in his declaration that between September of 2008 and September of 2011, he worked in a dual capacity at the Centereach store as a delivery driver and an in-store employee.
As a delivery driver, H. Kasikci was primarily responsible for delivering pizza to customers who placed orders over the telephone. In his capacity as an in-store employee, H. Kasikci alleges that his responsibilities consisted of "taking telephone orders, making pizza, putting together pizza boxes, and cleaning the store". (H. Kasikci Decl., ¶ 3.) H. Kasikci contends that he worked approximately 65--75 hours per week, in which 70% of the time he worked as a delivery driver, and 30% of the time he worked as an in-store employee. (Id., ¶¶ 4-- 5.) According to H. Kasikci, the Defendants compensated him for his work as a delivery driver by paying him a straight wage for the first forty hours of work per week, and then included a "bonus" in each check, which amounted to overtime compensation at his straight wage. (Id., ¶ 7.) Furthermore, when he worked as an in-store employee in the same week he worked as a delivery driver, H. Kasikci alleges that the Defendants would "add approximately two driver hours to [his] paycheck for every in-store hour [he] worked". (Id., ¶ 8.)
B. Kasikci declares that he worked as a delivery driver from approximately July of 2010 through October of 2010, and for approximately two weeks in February of 2011. According to
B. Kasikci, he spent the first two months of his employment working at the Centereach, Stony Brook, and Patchouge locations, and the remainder of his employment working only at the Centereach location. (B. Kasikci Decl., ¶ 1.) B. Kasikci alleges that he worked 90--100 hours per week, and that he was compensated at the same straight time wage for all of the hours he worked, with the first forty hours per week being his stated compensation, and the hours over forty reflected as a "bonus" on his paycheck, that ...