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Heitzenrater v. Officemax, Incorporated

United States District Court, W.D. New York

February 1, 2014

JEFFREY HEITZENRATER, Individually and on behalf of Himself and All Other Persons Similarly Situated, Plaintiff,


WILLIAM M. SKRETNY, Chief District Judge.


Plaintiff commenced this action under the Fair Labor Standards Act (29 U.S.C. § 201 et seq. ("FLSA")) and New York Labor Law ("NYLL") alleging that Defendants failed to pay him and similarly situated assistant store managers overtime wages for hours worked in excess of 40 per week as required by law. Presently before this Court is Plaintiff's motion for conditional certification of this lawsuit as a FLSA collective action and to facilitate notice of the same under 29 U.S.C. § 216(b). The Court finds the motion fully briefed and oral argument unnecessary. For the reasons that follow, Plaintiff's motion is granted.


Plaintiff worked as an Assistant Store Manager ("ASM") from January 2, 2011 to October 1, 2011 in Defendants' Batavia, New York store. (Compl ¶ 8, Docket No. 1.) Plaintiff asserts that, in this position, his primary assigned duties included customer service, stocking shelves, working the cash register, unloading trucks, setting up displays pursuant to diagrams (referred to as planograms), counting inventory, cleaning the store, working in the copy center, pricing merchandise, collecting shopping carts in the parking lot, merchandise recovery and organizing shelves. (Compl ¶¶ 40, 49.) His primary duties did not include managerial tasks such as hiring, firing, scheduling, or disciplining employees. (Id. ¶ 50.) Plaintiff alleges that Defendants nonetheless willfully misclassified himself and other ASMs as exempt from the provisions of FLSA and the NYLL that require the payment of overtime rates for hours worked in excess of 40 per week. (Id. ¶¶ 41-43.)

Plaintiff commenced this action in September 2012 alleging violations of FLSA and NYLL on behalf of himself and all other current and former similarly situated ASMs. Since that time, seventeen additional ASMs have opted into the FLSA collective action pursuant to 29 U.S.C. § 216(b). Plaintiff now moves for conditional certification of this action with respect to all current and former ASMs employed by Defendants in the United States, with the exception of those in California, [1] at any time from September 21, 2009 to present. (Docket No. 55.)


29 U.S.C. § 216(b) provides that an employee or employees suing for relief from an employer's FLSA violation may by brought "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Unlike a class action under Rule 23 of the Federal Rules of Civil Procedure, a FLSA collective action requires potential class members to affirmatively opt into the case by way of a writing filed with the court. See 29 U.S.C. § 216(b); Myers v. Hertz Corp. , 624 F.3d 537, 555 n. 10 (2d Cir. 2010), cert denied, 132 S.Ct. 368 (2011); Jenkins v. TJX Companies , 853 F.Supp.2d 317, 320 (E.D.N.Y. 2012). A FLSA collective action also need not meet Rule 23's strict requirements of numerosity, typicality, commonality and representativeness. Jenkins , 853 F.Supp.2d at 320. Indeed, nothing in FLSA in fact requires certification, it is instead a recognized case management tool for district courts to employ in appropriate cases to facilitate the sending of notice to potential class members. Myers , 624 F.3d at 555 n. 10 (citing Hoffmann-La Roche Inc. v. Sperling , 493 U.S. 165, 169, 174, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)).

The determination whether a putative collective action is an appropriate case for this discretionary certification requires a two-step analysis. The first step, called conditional certification, "involves the court making an initial determination to send notice to potential opt-in plaintiffs who may be similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred." Myers , 624 F.3d at 554-55; Jenkins , 853 F.Supp.2d at 320. "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." Jenkins , 853 F.Supp.2d at 320. The second step generally occurs after discovery on the merits is completed, at which time a defendant may move to challenge certification. Jenkins , 853 F.Supp.2d at 320-21. The district court can then "determine whether a so-called collective action' may go forward by determining whether the plaintiffs who have opted in are in fact similarly situated' to the named plaintiffs." Myers , 624 F.3d at 555; Jenkins , 853 F.Supp.2d at 320. "The action may be de-certified if the record reveals that they are not, and the opt-in plaintiffs' claims may be dismissed without prejudice." Myers , 624 F.3d at 555; Jenkins , 853 F.Supp.2d at 320-21.

Plaintiff's motion implicates only the first step: conditional certification. At this stage, a plaintiff need present only "a modest factual showing' that [he or she] 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)). The burden is therefore minimal, "especially since the determination that potential plaintiffs are similarly situated is merely a preliminary one." Scholtisek v. Eldre Corp. , 229 F.R.D. 381, 387 (W.D.N.Y. 2005) (quoting Gjurovich v. Emmanuel's Marketplace , 282 F.Supp.2d 101, 104 (S.D.N.Y. 2003) (internal quotation marks and citation omitted)). Nonetheless, a court must still find "some identifiable factual nexus which binds the named plaintiffs and potential class members together as victims' of a particular practice." Jenkins , 853 F.Supp.2d at 322 (quoting Sbarro , 982 F.Supp. at 261).

Here, Plaintiff alleges that Defendants failed to pay him and similarly situated assistant store managers overtime wages as required by law. Under FLSA, an employer is prohibited from employing any employee "for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). An exemption is available for certain employees "employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1); see Guillen v. Marshalls of MA, Inc. , 750 F.Supp.2d 469, 474 (S.D.N.Y. 2010). Defendants assert that the ASMs are properly classified as exempt and, as such, they are not entitled to overtime payments. (Answer ¶ 55, Docket No. 16.)

Notably, concurrent performance of exempt and nonexempt work does not disqualify an employee from this exemption. 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.106.

Generally, exempt executives make the decision regarding when to perform nonexempt duties and remain responsible for the success or failure of business operations under their management while performing the nonexempt work. In contrast, the nonexempt employee generally is directed by a supervisor to perform the exempt work or performs the exempt work for defined time periods. An employee whose primary duty is ordinary production work or routine, recurrent or repetitive tasks cannot qualify for exemption as an executive.

29 C.F.R. § 541.106(a). The term "primary duty" means "the principal, main, major or most important duty that the employee performs, " and its determination involves a fact-specific analysis based upon "the character of ...

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