The opinion of the court was delivered by: Joan M. Azrack United States Magistrate Judge
AZRACK, United States Magistrate Judge:
Plaintiff Qi Zhang brings the instant suit against defendants Bally Produce, Inc. ("Bally"), Rubin Lo, and Diana Lo (collectively, "defendants"). Compl., ECF No. 1. Plaintiff, who worked at Bally as a vegetable loader, alleges that defendants failed to pay him overtime compensation in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and New York state law. Compl. ¶¶ 1--2. Plaintiff also alleges that defendants failed to pay him a "spread of hours" premium required by New York law. Id. ¶ 2. Although plaintiff's complaint is styled as a collective action, no other employees have opted in to this suit.
Presently before the Court is plaintiff's motion to conditionally certify a collective action under the FLSA, 29 U.S.C. § 216(b), and send court-authorized notice to similarly situated employees. ECF No. 12. The Honorable Frederic Block referred this motion to me for decision. Nov. 13, 2012 Order. For the reasons outlined below, plaintiff's motion is denied.
The record on the instant motion consists solely of plaintiff's affidavit.*fn1 Defendants have not submitted any evidence in opposition to plaintiff's motion.
Bally is a vegetable distributor. Qi Zhang Aff. ¶ 3, Decl. of John Troy ("Troy Decl.") Ex. H, ECF No. 14. At Bally, plaintiff worked as a vegetable loader. Id. ¶ 5. His job involved "sorting the vegetables and loading and unloading the trucks under the control, supervision and direction of the driver." Id. ¶ 6. Plaintiff, who worked approximately 60 hours per week, was paid $830.77 every two weeks, an amount which was later increased to $923.00. Id. ¶¶ 7--8. As such, it appears that plaintiff was classified as exempt and was not paid an overtime premium.
According to plaintiff, at least ten of his "co-workers were also not paid" one-and-a-half times their regular rate for overtime hours that they worked. Id. ¶¶ 12--13. Plaintiff's affidavit, however, does not identify what positions those "co-workers" held or what duties those "co-workers" performed.
A.The FLSA and the Motor Carrier Exemption
The FLSA generally requires employers to compensate employees at
one-and-a-half their regular rate for all overtime hours they work. 29
U.S.C. § 207(a). However, pursuant to the FLSA's so-called "Motor
Carrier Exemption," the FLSA's overtime requirements do not apply to
certain employees who fall within the Secretary of Transportation's
jurisdiction. 29 U.S.C. § 213(b)(1). According to a Department of
Labor ("DOL") interpretive bulletin, the Motor Carrier Exemption
applies to employees who work as "driver[s], driver's helper[s],
loader[s], or mechanic[s]" and whose work "directly affect[s] the
safety of operation of motor vehicles in interstate commerce . . .
within the meaning of the [Motor Carrier Act of 1935]."*fn2
29 C.F.R. § 782.2(b)(2). In the instant case, defendants
contend that plaintiff qualifies as an exempt loader.
A "loader" engages in work directly affecting 'safety of operation' so long as he has responsibility when such motor vehicles are being loaded, for exercising judgment and discretion in planning and building a balanced load or in placing, distributing, or securing the pieces of freight in such a manner that the safe operation of the vehicles on the highways . . . will not be jeopardized.
The defendant bears the burden of proving that an employee qualifies an exempt loader under the Motor Carrier ...