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Jose Oscar Calderon and Pedro Lopez, Individually and On Behalf of All Other Persons Similarly Situated v. King Umberto

September 25, 2012

JOSE OSCAR CALDERON AND PEDRO LOPEZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
KING UMBERTO, INC.; PIETRO FUSCHETTO; AND ROSARIO FUSCHETTO; JOINTLY AND SEVERALLY, DEFENDANTS.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court is the plaintiffs' motion to conditionally authorize a collective action, pursuant to Section 216 of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. Plaintiffs also request an order directing the defendants to furnish the names, last known addresses, telephone numbers and dates of employment of the putative plaintiffs, as well as authorization to post and circulate a Notice of Collective Action and Consent to Become a Party Plaintiff form to similarly situated individuals. Defendants oppose plaintiffs' motion on the grounds that plaintiffs have failed to demonstrate that the potential class members are similarly situated and that plaintiffs' claims are barred by a prior action brought against defendants by the Secretary of Labor. Defendants also challenge the proposed Notice of Collective Action submitted by plaintiffs. For the following reasons, plaintiffs' motion is granted, subject to the limitations discussed below.

FACTS

Plaintiffs, Jose Oscar Calderon ("Calderon") and Pedro Lopez ("Lopez"), are former employees of defendant King Umberto, Inc. ("King Umberto"), which operated restaurants in Elmont, New York and is controlled and/or owned by the individual defendants, Pietro Fuschetto and Rosario Fuschetto. (Compl. ¶¶ 16-19.) Calderon was employed by defendants as a dishwasher in their restaurants from June 2002 to April 10, 2011. (Compl. ¶ 18.) Lopez was employed by defendants as a cook in their restaurants from June 2006 to April 10, 2011. (Compl. ¶ 19.)

Plaintiffs allege that they were denied overtime pay for hours worked in excess of forty hours per week. (Compl. ¶¶ 20, 24.) Plaintiffs allege that they worked more than forty hours per week during the course of their employment, typically working six days per week for between twelve and fourteen hours per day, frequently without any meal breaks. (Compl. ¶ 20; Calderon Aff. ¶ 3; Lopez Aff. ¶ 3.) Plaintiffs allege that they were not compensated at a rate of one and one-half times their regular pay rate for those hours worked in excess of forty, as required by law. (Compl. ¶¶ 30-31.) Plaintiffs further allege that other similarly situated employees have been unlawfully denied overtime compensation as well. (Compl. ¶¶ 21, 30-31.)

Plaintiffs bring this action pursuant to the FLSA, alleging that defendants' failure to pay them for their overtime hours violates Section 207 of that Act, as well as the New York Labor Law, 12 N.Y.C.R.R. § 137. Plaintiffs also allege that defendants failed to pay them minimum wage, in violation of the FLSA, 29 U.S.C. § 206, and New York Labor Law § 652.

Plaintiffs now seek conditional authorization to proceed as a collective action, pursuant to FLSA § 216, as well as permission to post and circulate their proposed Notice of Collective Action and Consent to Become a Party Plaintiff form to former and current employees of defendants for the three years prior to the commencement of this action so that such similarly situated employees may be apprised of the within action and opt to join the litigation, if they so choose.

DISCUSSION

I. Conditional Certification

Section 216(b) of the FLSA provides a private right of action to recover unpaid overtime

compensation "against any employer . . . by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). An employee cannot become a party to such an action, however, unless he or she provides consent, in writing, and such consent is filed in the court where the action is pending. See id.; see also Patton v. Thomson Corp., 364 F. Supp. 2d 263, 266 (E.D.N.Y. 2005) ("[O]ther employees can become plaintiffs, and thereby be bound by the action's determination, only by affirmatively acting to do so."). Courts have discretion to authorize sending notice to potential plaintiffs in a collective action. See Sobczak v. AWL Indus., Inc., 540 F. Supp. 2d 354, 362 (E.D.N.Y. 2007) (citation omitted).

The "threshold issue" in deciding whether to authorize class notice in an FLSA action is whether plaintiffs have demonstrated that the potential class members are "similarly situated." Patton, 364 F. Supp. 2d at 266-67 (citing Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)); see also Sobczak, 540 F. Supp. 2d at 362 (citing cases). Although the term "similarly situated" is not defined in the FLSA or its implementing regulations, courts have interpreted it to require plaintiffs to 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." Sobczak, 540 F. Supp. 2d at 362 (quoting Hoffmann, 982 F. Supp. at 261) (additional citations omitted); see also Patton, 364 F. Supp. 2d at 267. "This burden 'is not a stringent one, and the Court need only reach a preliminary determination that potential plaintiffs are similarly situated.'" Patton, 364 F. Supp. 2d at 267 (quoting Hoffmann, 982 F. Supp. at 261); see also Sobczak, 540 F. Supp. 2d at 362 (stating that "[t]he burden at this initial stage is minimal"). A named plaintiff is not required to show "an actual FLSA violation" at this stage, but rather only that "a 'factual nexus' exists between the plaintiff's situation and the situation of other potential plaintiffs." Sobczak, 540 F. Supp. 2d at 362 (quoting Wraga v. Marble Lite Inc., No. 05 Civ. 5038, 2006 U.S. Dist. LEXIS 60457, 2006 WL 2443554, at *1 (E.D.N.Y. Aug. 22, 2006)); see also Jackson v. N.Y. Telephone Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995) (stating that "plaintiffs are only required to demonstrate a factual nexus that supports a finding that potential plaintiffs were subjected to a common discriminatory scheme").

Defendants assert that the affidavits offered by the plaintiffs are insufficient to establish the required factual nexus here because they contain conclusory allegations. (Def. Mem. of Law in Opp'n 6-7.) This arguments is without merit and has been explicitly rejected by other courts to consider the issue. See, e.g., Sobczak, 540 F. Supp. 2d at 363 (stating that "[d]efendants' argument that the [plaintiffs'] affidavits are insufficient to satisfy the burden for a notice to be sent because they present mere conclusory allegations is inaccurate"). "[C]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." Id. at 362 (quotation and internal quotation marks omitted); see also Cano v. Four M Food Corp, No. 08-CV-3005, 2009 U.S. Dist. LEXIS 7780, at *17 (E.D.N.Y. Feb. 3, 2009) (finding that plaintiffs' affidavits containing "statements setting forth defendants' common denial of overtime pay, the named plaintiffs' personal knowledge of and the names of other co-workers who were allegedly subject to the same denial of overtime pay" demonstrated a "sufficient factual basis" that the named plaintiffs and the potential plaintiffs were similarly situated); Wraga, 2006 WL 2443554, at *2 (granting motion to certify collective action based on plaintiff's affidavit alleging failure to pay overtime for hours worked in excess of forty where plaintiff stated that he was aware, based on personal conversations, of at least eighteen other employees who were similarly situated); Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 91, 96 (S.D.N.Y. 2003) (granting conditional certification where plaintiff's declaration "identified by name a number of current or former . . . employees who held the same or similar positions as the Plaintiff . . . who, like Plaintiff, were paid a fixed weekly salary, and may not have received overtime compensation if he or se worked in excess of forty hours each week"). Plaintiffs' affidavits in support of their motion herein meet this "lenient evidentiary standard." Malena v. Victoria's Secret Direct, LLC, No. 09 Civ. 5849, 2010 U.S. Dist. LEXIS 121320, at *9 (S.D.N.Y. Nov. 16, 2010) (quoting Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 58 (S.D.N.Y. 2009)).

Nor is it relevant that other current or former employees of defendants have yet to join this action. The lack of other opt-in plaintiffs at this stage of the litigation "does not make notice inappropriate." Pefanis v. Westway Diner, Inc., No. 08 Civ. 002, 2008 U.S. Dist. LEXIS 81082, at *3 (S.D.N.Y. Oct. 8, 2008). "Current employees may hesitate to join a lawsuit against their employer for many reasons, such as fear of retaliation." Id. at *4 (citing Amendola v. Bristol-Meyers Squibb Co., 558 F. Supp. 2d 459, 466 (S.D.N.Y. 2008). "Given the 'broad remedial purpose of the [FLSA], which should be given a liberal construction,' . . . FLSA plaintiffs are not required to show that putative members of the collective action are interested in the lawsuit in ...


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