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Dolinski v. Avant Business Service Corporation

United States District Court, Second Circuit

January 28, 2014

ALLAN DOLINSKI, LIBRADO VASCONCELOS, RAYMOND JOHNSON and ERIK CRESPO, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,


P. KEVIN CASTEL, District Judge.

Plaintiffs bring wage-and-hour claims under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., (the "FLSA"), and the New York Labor Law on behalf of themselves and others similarly situated. Plaintiffs worked as couriers employed by defendant Avant Business Service Corporation ("Avant"). They claim that Avant and the two individual defendants violated federal and state and wage-and-hour laws by failing to pay overtime wages, refusing to reimburse mandatory work-related expenses and requiring employees to work through meal breaks without compensation. Plaintiffs assert that these pay practices were applied to couriers company-wide, and move for approval of notice as a collective action under the FLSA. (Docket # 13.) Plaintiffs do not move for certification as a class action under Rule 23, Fed. R. Civ, P., for their New York Labor Law claim.

As more fully discussed, plaintiffs have cone forward with evidence that satisfies the minimal burden required for preliminary certification as a collective action under the FLSA. Their motion is therefore granted. Plaintiffs are also directed to re-submit their proposed form of notice to potential opt-in plaintiffs in order to clarify the eligibility of potential opt-in plaintiffs and more closely conform to the proposed collective action. BACKGROUND.

Plaintiffs Raymond Johnson, Allan Dolinski and Librado Vasconcelos each submits a declaration that describes the defendants' allegedly unlawful practices.[1] All three plaintiffs have worked as couriers employed by Avant. (Johnson Dec.¶ 1 Dolinski Dec. ¶ 1; Vasconcelos Dec. ¶ 1.) As couriers, their duties principally involved making deliveries by hand within New York City. (Johnson Dec.¶¶ 3, 5; Dolinski Dec. ¶¶ 3, 5; Vasconcelos Dec. ¶¶ 3, 5.) There is no dispute that they are non-exempt employees under the FLSA.

Plaintiffs assert that defendants had in place de facto policies that violated the FLSA in three respects. First, plaintiffs contend that defendants failed to comply with the FLSA's overtime pay requirements. According to plaintiffs, they "generally worked more than 40 hours per week, " and typically were not compensated at time-and-a-half rates when they worked in excess of 40 hours. (Johnson Dec.¶ 8; Dolinski Dec.¶ 7, 20; Vasconcelos Dec. ¶¶ 8, 18.) They assert that defendants did not pay them "at least minimum wage" for all hours worked. (Johnson Dec. ¶ 14; Dolinski Dec. ¶ 20; Vasconcelos Dec. ¶ 18.) More specifically, Dolinski and Vasconcelos estimate that, on average, they were not paid "for at least 1 hour per day of work." (Dolinski Dec. ¶ 24; Vasconcelos Dec. ¶ 23.)

Second, plaintiffs contend that they were required to work through unpaid lunch breaks, even though defendants knew that couriers were "on call during meal periods" and assigned work to couriers during their meal periods. (Johnson Dec. ¶¶ 17-18; Dolinski Dec. ¶ 23; Vasconcelos Dec. ¶¶ 21-22.) According to Vasconcelos, when he complained to two dispatchers and defendant Richard Rivera, the operations manager for messengers and facilities at Avant, about being denied pay for work performed during meal breaks, they replied that the defendants had a policy of not paying for work performed during half-hour meal breaks. (Vasconcelos Dec. ¶¶ 16-17.)

Third, plaintiffs assert that they were required to purchase their own Metrocards and to pay $100 for company radios, both of which were required to perform work responsibilities. (Johnson Dec. ¶¶ 24-25; Dolinski Dec. ¶¶ 9-11, 30-33; Vasconcelos Dec. ¶¶ 10, 29-32.) They claim that they were provided with weekly unlimited Metrocards, which were deducted from their paychecks, but that they were never reimbursed for the expense. (Johnson Dec. ¶¶ 24, 26-27; Dolinski Dec. ¶¶ 30-33; Vasconcelos Dec. ¶¶ 29-32.)

Plaintiffs state that at any given time, the defendants employed more than 25 couriers, all of whom regularly worked more than 40 hours per week without receiving the minimum wage required by the FLSA. (Johnson Dec. ¶¶ 3, 30-36; Dolinski Dec. ¶¶ 3, 36-42; Vasconcelos Dec. ¶¶ 3, 35-41.) Dolinski asserts that between 2010 and 2012, he complained that he was not being paid the required compensation and had not been reimbursed for Metrocard expenses; he also states that he filed a complaint with the New York Department of Labor in the fall of 2011. (Dolinski Dec. ¶¶ 16-19.) Vasconcelos also states that he complained to certain dispatchers that he was not being fully compensated, after which he "sometimes was paid for some of the hours which I had sought but was never paid for all my hours worked." (Vasconcelos Dec. ¶¶ 16-17.) Vasconcelos states that when he raised the issue with defendant Rivera, he responded that defendants "had a policy not to pay for Metrocards and not to pay for work performed during the meal break." (Vasconcelos Dec. ¶ 17.)

In opposing the plaintiffs' motion for preliminary certification, the defendants assert that Avant tracks employee hours using a variety of technologies, including software programs and fingerprint scans. (Rivera Aff. ¶¶ 9, 11-13; Eichenbaum Aff. ¶¶ 7-8.) Prior to 2011, Avant tracked employee hours using hard-copy time sheets. (Rivera Aff. ¶ 23.) Defendants also assert that Avant has a policy to reimburse employees for work-related expenses (Rivera Aff. ¶¶ 37-41; Eichenbaum Aff. ¶¶ 15-19), has a policy that provides for employee meal breaks (Rivera Aff. ¶¶ 16-19 & Ex. B) and that Avant provides written guidelines on wage-andhour laws for all new couriers. (Rivera Aff. ¶ 14 & Ex. B.)


The text of the FLSA provides a mechanism by which similarly situated employees may opt into a collective action:

An action... may be maintained against any employer... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). District courts have discretion to implement section 216(b) "by facilitating notice to potential plaintiffs' of the pendency of the action and of their opportunity to opt-in as represented plaintiffs.'" Myers v. Hertz Corp. , 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffinann-La Roche Inc. v. Sperling , 493 U.S. 165, 169 (1989)). "In a collective action under FLSA - unlike in a class action under Federal Rule of Civil Procedure 23 - only plaintiffs who affirmatively opt in to the case can benefit from the judgment or be bound by it." Darnassia v. Duane Reade, Inc. , 2006 WL 2853971, *2 (S.D.N.Y. Oct 5, 2006) (Lynch, J.). Although orders facilitating notice are often referred to as orders "certifying" a collective action, the FLSA does not contain a certification provision. Id . "Certification" is simply "the district court's exercise of the discretionary power... to facilitate the sending of notice to potential class members." Myers , 624 F.3d at 555 n.10.

In determining whether to exercise its discretion to send notice to potential opt-in plaintiffs, courts in this Circuit conduct a two-phase inquiry. Id. at 554-55 (reviewing the twophase inquiry and deeming it "sensible" for evaluating certification under section 216(b)); see also Lynch v. United Servs. Auto. Ass'n , 491 F.Supp.2d 357, 367-68 (S.D.N.Y. 2007). In the first phase, the court makes a preliminary determination as to whether potential opt-in plaintiffs are "similarly situated" to the named plaintiffs. See Myers , 624 F.3d at 555; Damassia, 2006 WL 2853971 at *3. Plaintiffs' burden at this initial stage is "minimal, " id., requiring only a "modest factual showing' that they and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law.'" Myers , 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc. , 982 F.Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.)). "The 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 . (emphasis in original; quotation marks and internal citation omitted). No showing of ...

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