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Dilonez v. Fox Linen Serv. Inc.

United States District Court, E.D. New York

July 25, 2014

ANGEL DILONEZ, and all other non-exempt employees similarly situated, AURA BUENO, CARLOS A. DILONE, NORBERTO BUENO, Plaintiffs,
v.
FOX LINEN SERVICE INC. and GEORGE SUNDEL, Defendants,

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[Copyrighted Material Omitted]

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For Angel Dilonez, and all other non-exempt employees similarly situated, Plaintiff: Peter Arcadio Romero, LEAD ATTORNEY, Andrea Rodriguez, Frank & Associates, P.C., Farmingdale, NY.

For Aura Bueno, Carlos A Dilone, Norberto Bueno, Plaintiffs: Andrea Rodriguez, Peter Arcadio Romero, Frank & Associates, P.C., Farmingdale, NY.

For Fox Linen Service Inc., George Sundel, Defendants: Jeffrey N. Naness, LEAD ATTORNEY, Naness, Chaiet & Naness, LLC, Jericho, NY.

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ORDER

GARY R. BROWN, United States Magistrate Judge.

Plaintiff Angel Dilonez, along with opt-in plaintiffs Aura Bueno, Carlos Dilone, and Norberto Bueno (collectively, " plaintiffs" ), bring this action against their former employer, Fox Linen Service, Inc. (" Fox Linen" ) and owner George Sundel (collectively, " defendants" ). Plaintiffs, who were employed by defendants, allege that defendants violated the Fair Labor Standards Act (" FLSA" ) and similar New York labor laws by failing to pay overtime wages to plaintiffs and other similarly situated employees. See generally Complaint (" Compl." ), Feb. 15, 2013, Docket Entry (" DE" ) [1]. Plaintiffs filed a motion for conditional certification of a collective action pursuant to FLSA § 16(b), 29 U.S.C. § 216(b), which defendants oppose. See generally Motion for Conditional Certification of a Collective Class (" Mot." ), Nov. 5, 2013, DE [19]; Opposition to Pl.'s Mot. (" Opp'n" ), Dec. 2, 2013, DE [22]; Reply, Dec. 16, 2013, DE [25].

For the reasons that follow, and to the extent of and subject to the provisions contained herein, the motion for conditional certification is GRANTED.

BACKGROUND

Plaintiffs allege that they regularly worked more than forty hours per week at Fox Linen, a laundry business located in Port Jefferson, New York, but did not receive overtime pay. Compl. ¶ ¶ 3, 29, 32; Mot. 1-2. Plaintiffs, who primarily spoke Spanish, performed non-exempt duties, including sorting, washing, ironing, and folding linens. See generally Declaration of Angel Dilonez (" Dilonez Decl." ), Dec. 16, 2013, DE [25-2]; Declaration of Norberto Bueno (" Bueno Decl." ), Dec. 16, 2013, DE [25-3]; Declaration of Carlos Dilone (" Dilone Decl." ), Dec. 16, 2013, DE [25-4]; Declaration of Lorenzo Rodriguez (" Rodriguez Decl." ), Dec. 16, 2013, DE [25-5]. Defendants paid plaintiffs and other non-exempt employees by check for the first thirty-five to forty hours worked per week, and then paid them in cash--still at their regular hourly wage--for any hours worked in excess of forty hours per week. See Dilonez Decl. ¶ ¶ 7-11; Bueno Decl. ¶ ¶ 7-11; Rodriguez Decl. ¶ ¶ 7-10; Mot. 1-3. According to plaintiffs' declarations, defendants failed to pay other non-exempt employees overtime wages, some of whom are identified in the declarations. See Dilonez Decl. ¶ ¶ 7-10; Bueno Decl. ¶ ¶ 7-10; A. Bueno Decl. ¶ ¶ 7-10; Dilone Decl. ¶ ¶ 7-10; Rodriguez Decl. ¶ ¶ 6-10.

Plaintiffs seek to conditionally certify a class comprising " [a]ll non-exempt employees of Defendants . . . who performed duties, including but not limited to, separating, washing, ironing, and/or folding laundry." Mot. 2. As part of this motion,

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plaintiffs request the names, addresses, telephone numbers, and dates of employment of those who may be covered by the collective action for the purpose of sending the potential plaintiffs a Notice of Pendency and a Consent to Join form. Mot. 9-11; see also Proposed Notice of Pendency (" Notice" ), Nov. 5, 2013, DE [18-6]; Proposed Consent to Join Form (" Consent form" ), Nov. 5, 2013, DE [18-7]. Additionally, plaintiffs request that the Court authorize the circulation of the Notice and Consent form in both English and Spanish and that the Notice be posted at defendants' place of business and published in local Spanish periodicals. Mot 1, 9-11.

Defendants filed an opposition to this motion claiming that there is no basis for conditional certification because plaintiffs' original supporting declarations are neither dated nor notarized. See Opp'n 2-4. Defendants also submitted seven affidavits from current employees to show that Fox Linen employees did not work more than forty hours per week. See generally Defs.' Affirmations in Opp'n to Pls.' Mot. (" Defs.' Affs." ), Dec. 2, 2014, DE [22-1]. Defendants further contend that even if the Court granted the motion, the class should be limited to workers with the titles of " sorters" or " washers." Opp'n 4-5.

Defendants also object to certain aspects of the proposed notification process. First, in light of the FLSA's three-year statute of limitations, defendants request that the Notice and Consent form be sent to current and former employees who worked for defendants within the last three years rather than to employees who worked within the last six years (the New York statute of limitations). Opp'n 6-8; see also 29 U.S.C. § 255(a) (statute of limitations of up to three years); N.Y. Labor Law § 198(3) (statute of limitations of six years). Second, defendants want any references to New York labor law claims removed from the Notice. Opp'n 8-9. Third, defendants want the circulated Notice to inform potential plaintiffs about the potential consequences of entering the action, including discovery obligations, inquiries about immigration status, costs, and counterclaims. Opp'n 9-11; Defs.' Supplemental Letter, Dec. 3, 2013, DE [23].

Fourth, defendants want to require any opt-in plaintiffs to sign a statement affirmatively alleging that they worked more than forty hours per week and that they were not properly compensated. Opp'n 10-11. Fifth, defendants ask that the Court require the opt-in plaintiffs to mail their Consent forms directly to the Court rather than to plaintiffs' counsel. Id. Finally, the defendants argue that any translation of the notice or consent forms should be approved by all parties. Opp'n 10-11.

DISCUSSION

I. Legal Standard

The FLSA mandates the following:

[N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, 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). Defendants do not claim that their employees were exempt from the FLSA overtime requirements. See generally Opp'n.

II. Collective Class Action

A. Two-Step Certification of a Collective ...


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