United States District Court, S.D. New York
SHAVEZ JACKSON, individually and on behalf of others similarly situated, Plaintiffs,
BLOOMBERG, L.P., Defendant.
OPINION AND ORDER
J. PAUL OETKEN, District Judge.
Plaintiff Shavez Jackson, individually and on behalf of all others similarly situated, brings this putative collective and class action against Bloomberg L.P. ("Bloomberg") for allegedly failing to compensate Global Customer Support Representatives ("GCSRs") for overtime in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), and New York Labor Law § 650 et seq. ("NYLL"). Before the Court is Plaintiff's motion to conditionally certify a FLSA collective action; to certify a class pursuant to Federal Rule of Civil Procedure 23 with respect to the NYLL claims; to authorize issuance of a proposed notice to potential class members; and to order Bloomberg to provide information to identify potential class members. For the reasons that follow, the motion is granted.
A. Factual Background
Unless otherwise indicated, the following facts are taken from the allegations in the Amended Complaint (Dkt. No. 3 ("Am. Compl.")) and Plaintiff's submissions made in connection therewith.
Plaintiff is a New York resident who was employed by Bloomberg as a GCSR from February 2008 through September 2010. Bloomberg, a Delaware corporation with its principal place of business in New York, is a multinational mass media corporation that provides financial tools to companies and organizations around the world. Bloomberg's core business is a news, data, and analytics platform delivered to subscribers through its proprietary Bloomberg Professional service, a sophisticated computer system that provides news, data, analytics, and functionalities regarding fixed income and equity securities, derivatives, commodities, and foreign exchange. (Dkt. No. 22 ("Shannon Decl.") ¶ 2.)
A vital component of Bloomberg's customer service is its contingent of GCSRs, who are responsible for fielding every call to Bloomberg's customer service phone number. ( Id. ¶ 3.) Due to the breadth and complexity of the issues they handle, GCSRs generally undergo intensive training during which they receive classroom instruction on each of Bloomberg's business divisions and products, as well as hands-on training with the technology they will use. ( Id. ¶ 8.) GCSRs are expected to exercise independent judgment and discretion in determining whether they can assist a customer, and, if not, who in the company is best positioned to do so. (Dkt. No. 21 ("Elmy Decl.") ¶ 3; Shannon Decl. ¶ 7.)
While GCSRs are primarily employed to answer phone calls, they are also encouraged to work on special projects to help Bloomberg enhance its products and service levels. (Elmy Decl. ¶ 2; Shannon Decl. ¶ 6.) These include, for instance, specializing in a particular area of Bloomberg's business to answer higher-level questions and train other representatives; monitoring conference call technology and becoming proficient in the specialized conferencecall software; participating in a think tank to conceptualize ways to make the customer service process more efficient; tracking daily and weekly call statistics; recruiting and assisting in the hiring of new GCSRs; and learning or training others on a foreign language. (Shannon Decl. ¶ 10.) Most GCSRs spend, on average, five hours a day handling calls and about two to three hours a day on special projects. (Elmy Decl. ¶ 2; Shannon Decl. ¶ 6.)
GCSRs are paid at a salary rate for 40 hours of work per week. Plaintiff alleges, however, that GCSRs regularly worked in excess of 40 hours per week without receiving overtime pay. Specifically, Bloomberg had a policy requiring them to be at work before their shift to log in and after their shift to complete jobs, update work tickets, and log off; to work during lunch hours to complete jobs; to work on weekends and holidays, for which they were allowed to take "comp time" in a later pay week; and to work from home to update and complete work tickets, study training materials, and take exams.
Until recently, Bloomberg classified GCSRs as exempt from FLSA's overtime pay provisions. (Shannon Decl. ¶ 20.) In March 2013, Bloomberg and the United States Department of Labor ("DOL") entered into an agreement requiring Bloomberg to reclassify certain positions, including GCSRs, as non-exempt. (Dkt. No. 20 ("Golden Decl.") ¶ 7; Ex. A ("DOL Settlement").) Pursuant to the settlement, on April 25, 2013, Bloomberg sent checks to eligible GCSRs along with a cover letter explaining that cashing the check would constitute waiver of one's claims for back pay and related damages under FLSA. (Golden Decl. ¶ 8; DOL Settlement.) On April 28, 2013, Bloomberg reclassified GCSRs as non-exempt. (Shannon Decl. ¶ 20.)
B. Procedural Background
Plaintiff filed a class and collective action complaint on March 27, 2013. (Dkt. No. 1.) On April 11, she amended the complaint to include a demand for injunctive relief. (Am. Compl. ¶ 48.) Bloomberg answered on May 7. (Dkt. No. 7.) On June 19, Plaintiff filed the instant motion seeking certification of a class action pursuant to Rule 23 and conditional certification of a FLSA collective action. (Dkt. Nos. 13 & 14 ("Pl.'s Mem.").) Bloomberg opposed on July 11, and Plaintiff replied on July 25. (Dkt. Nos. 19 & 24.)
II. Legal Standards
A. FLSA Conditional Certification
FLSA was enacted to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a). To that end, the statute requires employers to pay employees for hours worked in excess of 40 per week "at a rate not less than one and one-half times the regular rate at which [they are] employed." Id. § 207(a)(1). Section 216(b) confers a private right of action upon employees to recover unpaid overtime compensation and "an additional equal amount as liquidated damages" for any overtime which the employer required or knowingly permitted. Chao v. Gotham Registry, Inc., 514 F.3d 280, 289-90 (2d Cir. 2008). That section also permits employees who are "similarly situated" to bring a collective action, thus enabling them to pool their resources and promoting judicial efficiency. Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 367 (S.D.N.Y. 2007) (citation omitted). Unlike Rule 23 class actions, FLSA collective actions are opt-in, meaning that a person is not a party to the 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). The Second Circuit has endorsed a two-step approach to FLSA collective actions.
First, the court must examine whether the plaintiffs have made a "modest factual showing" that they and potential class members are similarly situated insofar as they "were victims of a common policy or plan that violated the law." Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) (citations and quotations omitted). "[P]laintiffs accomplish this by making some showing that there are other employees... who are similarly situated with respect to their job requirements and with regard to their pay provisions... [and] are classified as exempt pursuant to a common policy or scheme." Id. (citation and quotations omitted). "Plaintiffs may satisfy this requirement by relying on their own pleadings, affidavits, [and] declarations, or the affidavits and declarations of other potential class members." Hallissey v. Am. Online, Inc., No. 99 Civ. 3785 (KTD), 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008) (citation omitted). At this initial stage, "the court does not resolve factual disputes, decide substantial issues going to the ultimate merits, or make credibility determinations." Lynch, 491 F.Supp.2d at 368 (citation omitted). If the employees are similarly situated in these material respects, "any factual variances that may exist between the plaintiff and the putative class [will] not defeat conditional class certification." Id. at 369.
The modest factual showing standard is very low and "considerably less stringent than the requirements for class certification under Rule 23." Poplawski v. Metroplex on the Atl., LLC, 2012 WL 1107711, at *3 (E.D.N.Y. Apr. 2, 2012) (citation and quotations omitted). Because the determination that plaintiffs are similarly situated is merely a preliminary one, courts generally grant conditional certification. Amador v. Morgan Stanley & Co. LLC, No. 11 Civ. 4326 (RJS), 2013 WL 494020, at *3 (S.D.N.Y. Feb. 7, 2013); Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006) (citation omitted). "If the plaintiffs demonstrate that similarly situated' employees exist, the [c]ourt should conditionally certify the class, order that appropriate notice be given to putative class members, and the action should continue as a collective action throughout the discovery process." Winfield v. Citibank, N.A., 843 F.Supp.2d 397, 402 (S.D.N.Y. 2012) (citation and quotations omitted). At the second stage, after plaintiffs have opted in and there has been discovery, "courts conduct a more stringent second tier' analysis upon a full record to decide whether the additional plaintiffs are similarly situated to the original plaintiffs." Indergit v. Rite Aid Corp., No. 08 Civ. 9361 (PGG), 2010 WL 2465488, at *4 (S.D.N.Y. June 16, 2010). If the court determines that the plaintiffs are not similarly situated, the collective action will be de-certified and the opt-in plaintiffs' claims will be dismissed without prejudice. Myers, 624 F.3d at 555 (citation omitted).
B. Rule 23 Class Certification
Class certification is governed by Federal Rule of Civil Procedure 23. Section (a) requires the party seeking certification to initially establish four prerequisites:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). In addition to establishing numerosity, commonality, typicality, and adequacy, the movant must show that the action is one of three types described in section (b). Id. 23(b). Plaintiff seeks certification under subsection (b)(3), which requires that "the questions of law or fact common to the class members predominate over any questions affecting only individual members, and... a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Id. 23(b)(3). In evaluating predominance and superiority, courts consider:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a ...