United States District Court, E.D. New York
POONAM SHARMA, BRIAN ROACH, RONNEL JARIN, and NIKITA SIMON, on behalf of themselves and all others similarly situated, Plaintiffs, -
- BURBERRY LIMITED a/k/a BURBERRYS LIMITED, Defendant
For Poonam Sharma, Plaintiff: Daniel Maimon Kirschenbaum, LEAD ATTORNEY, Joseph Herzfeld Hester & Kirschenbaum LLP, New York, N.Y. USA; David Harrison, LEAD ATTORNEY, Harrison, Harrison & Associates, Ltd., Red Bank, N.J. USA; Douglas Weiner, LEAD ATTORNEY, Joseph & Kirschenbaum LLP, New York, N.Y. USA.
For Brian Roach, Ronnel Jarin, Nikita Simon, on behalf of themselves and all others similarly situated, Plaintiffs: Daniel Maimon Kirschenbaum, LEAD ATTORNEY, Joseph Herzfeld Hester & Kirschenbaum LLP, New York, N.Y. USA; Douglas Weiner, LEAD ATTORNEY, Joseph & Kirschenbaum LLP, New York, N.Y. USA; David Harrison, Harrison, Harrison & Associates, Ltd., Red Bank, N.J. USA.
For Andrew Sioson, Plaintiff: David Harrison, Harrison, Harrison & Associates, Ltd., Red Bank, N.J. USA; Douglas Weiner, LEAD ATTORNEY, Joseph & Kirschenbaum LLP, New York, N.Y. USA.
For Burberry Limited, also known as Burberrys Limited, Defendant: Amy L. Bess, Vedder Price P.C., Washington, DC USA; Joseph K. Mulherin, Vedder Price PC, Chicago, IL USA; Lyle S. Zuckerman, Vedder Price P.C., New York, N.Y. USA.
DECISION AND ORDER
A. KATHLEEN TOMLINSON, United States Magistrate Judge.
Plaintiffs Poonam Sharma (" Sharma" ), Brian Roach (" Roach" ), Ronnel Jarin (" Jarin" ), and Nikita Simon (" Simon" ) (collectively, " Plaintiffs" ) bring this action on behalf of themselves and all similarly situated persons seeking unpaid overtime compensation from Defendant Burberry Limited a/k/a Burberrys Limited (" Defendant" or " Burberry" ), pursuant to the Fair Labor Standards Act of 1938 (" FLSA" ), as amended, 29 U.S.C. § § 201 et seq. and the New York Labor Law.
Plaintiffs have moved for conditional certification as a collective action and for notice of pendency to potential collective action members, pursuant to 29 U.S.C. § 216(b) (" Plaintiffs' Motion for Conditional Certification" ). DE 46. Plaintiffs have also filed two motions to compel documents, including a representative sample of nationwide employee data. DE 43, 64. Defendant has moved to strike portions of Plaintiffs' evidence submitted in support of Plaintiffs' Motion for Conditional Certification (" Defendant's Motion to Strike" ) [DE 51] and has filed two motions to supplement the record [DE 62, 66]. Plaintiffs have also moved to supplement the record. DE 75. Based on the Court's review of the parties' submissions as well as the applicable case law: (1) Plaintiffs' Motion for Conditional Certification is hereby GRANTED in part and DENIED in part; (2) Defendant's Motion to Strike is DENIED; (3) Plaintiffs' and Defendant's motions to supplement the record are GRANTED; and (4) Plaintiffs' motions to compel are GRANTED in part and DENIED in part to the extent set forth below.
A. Plaintiffs' Motion for Conditional Certification
The following alleged facts are taken from the Amended Complaint filed in this case on April 15, 2013 [DE 16] and the declarations submitted by the four named Plaintiffs and two opt-in Plaintiffs -- including the declaration of Danny Kozak (" Kozak" ), a former manager at Burberry -- in support of Plaintiffs' Motion for Conditional Certification [DE 46] and in support of Plaintiffs' letter motion to supplement the record [DE 75]. See " Kozak Decl." ; " Sharma Decl." ; " Roach Decl." ; " Jarin Decl." ; " Simon Decl." ; Sioson Decl." ; and " Simms Decl.," attached as Exs. 1-6 to Plaintiffs' Motion for Conditional Certification [DE 46] and Ex.1 to Plaintiffs' letter motion to supplement the record [DE 75].
Burberry is an international high-end retail fashion enterprise, operating approximately 65 retail store establishments in the United States. Kozak Decl. ¶ 1. Burberry employs Sales Associates (" SAs" ) in each store to attend to retail customers and make sales of merchandise. Id. ¶ 3.
An SA is a non-exempt position which is paid an hourly rate plus a commission based on sales of merchandise. Id. All of the Plaintiffs worked as SAs for Burberry. Am. Compl. ¶ 2. Plaintiff Sharma was employed at Burberry's Manhasset, New York store from May 2010 to January 2012. Sharma Decl. ¶ ¶ 2-3. Plaintiff Roach was employed at Burberry's Manhasset, New York store from July 2011 to June 2012. Roach Decl. ¶ ¶ 2-3. Plaintiff Jarin was employed at Burberry's Manhasset, New York store from October 2011 to October 2012. Jarin Decl. ¶ ¶ 2-3. Plaintiff Simon was employed at Burberry's Manhasset, New York store from August 2011 to May 2012. Simon Decl. ¶ ¶ 2-3. Plaintiff Sioson was employed at Burberry's Short Hills, New Jersey and Manhasset, New York stores from January 2009 to February 2012. Sioson Decl. ¶ ¶ 2-3. Plaintiff Damien Dane Simms was employed at Burberry's Manhasset, New York and Roosevelt Field Mall, New York stores from June 2008 to July 2012. Simms Decl. ¶ ¶ 2-3.
1. Plaintiffs' Declarations
Plaintiffs allege that they regularly worked more than 40 hours per week without being paid for overtime. Am. Compl. ¶ ¶ 36-37. Specifically, Plaintiffs allege that they were scheduled to work and were paid for 39 or 40 hours per week, but that they actually worked many more hours for which they were not compensated. Sharma Decl. ¶ ¶ 4-5; Roach Decl. ¶ ¶ 4-5; Jarin Decl. ¶ ¶ 4-5; Simon Decl. ¶ ¶ 4-5; Sioson Decl. ¶ ¶ 4-5; Simms Decl. ¶ 6-7. According to Plaintiffs, they were required to work before and after their scheduled shifts, through meal periods, and extra hours during the holidays. Sharma Decl. ¶ 5; Roach Decl. ¶ 5; Jarin Decl. ¶ 5; Simon Decl. ¶ 5; Sioson Decl. ¶ 6; Simms Decl. ¶ 7. Working extra unpaid time was primarily due to (1) Burberry's practice of scheduling meetings before the start of the workday; (2) Burberry's strong emphasis on a high level of customer service; (3) understaffing at the stores; (4) high numbers of customers and heavy workload; (5) aggressive sales and related goals; and (6) Burberry's closing policies which required SAs to do a lot of work in the evening, after the store closed. Sharma Decl. ¶ 6; Roach Decl. ¶ 6; Jarin Decl. ¶ 6; Simon Decl. ¶ 6; Sioson Decl. ¶ 7. Notwithstanding Plaintiffs' actual hours worked, Burberry's policy was not to pay overtime to its SAs. Sharma Decl. ¶ ¶ 10-11; Roach Decl. ¶ ¶ 9-10; Jarin Decl. ¶ ¶ 9-10; Simon Decl. ¶ ¶ 9-11; Sioson Decl. ¶ ¶ 0-10; Simms Decl. ¶ 8-9. Instead, Burberry's policy required SAs to record scheduled hours only (and not actual hours worked) in order to avoid showing overtime on the weekly time sheets. Sharma Decl. ¶ 9; Roach Decl. ¶ 5; Jarin Decl. ¶ 9; Simon Decl. ¶ 9; Sioson Decl. ¶ 9; Simms Decl. ¶ ¶ 8-9. Thus, the weekly timesheets were inaccurate because they did not include the time SAs actually worked before and after scheduled shifts or during an unpaid lunch break. Sharma Decl. ¶ 8; Roach Decl. ¶ 8; Jarin Decl. ¶ 8; Simon Decl. ¶ 8; Sioson Decl. ¶ 9; Simms Decl. ¶ 8.
According to Plaintiffs, Burberry's managers, including Kozak, a General Manager (" GM" ), and " Christine" and " Raphael," managers at the Manhasset store, told the SAs that it was Burberry's policy not to pay overtime to its SAs. Sharma Decl. ¶ 10; Jarin Decl. ¶ 23; Simon Decl. ¶ 10; Sioson Decl. ¶ 26; Simms Dec. ¶ 4. In addition, according to opt-in Plaintiff Simms, who worked at the Manhasset and Roosevelt Field Mall locations, GMs Danny Kozak, Jamie Hollis and Eric Ali often
told the SAs during meetings that overtime pay was not an option (except for sometimes during the holidays) and that overtime was not within Burberry's approved budget. Simms Decl. ¶ 20. Lastly, Plaintiffs claim that Regional Manager Barbara Hill personally observed SAs working off-the-clock after their shifts and it was " obvious" to her they were not being paid for off-the-clock time. Sharma Decl. ¶ 23; Simon Decl. ¶ 21.
Plaintiffs all claim that Burberry's pay practices were " widespread" and were the same at other Burberry stores as well. Plaintiffs Sharma, Jarin, Simon and Sioson claim they know the practice to be widespread " from what [they] w[ere] told by other Sales Associates." Sharma Decl. ¶ 27; Jarin Decl. ¶ 27; Simon Decl. ¶ 26; Sioson Decl. ¶ 26. Plaintiff Roach states that the practices were widespread but proffers no explanation as to how he knows this. Roach Decl. ¶ 22. Plaintiffs Jarin and Simon, who worked at the Manhasset store, state that they spoke to SAs at the Roosevelt Field Mall store who told them that the SAs there routinely worked extra hours for which they were not paid. Jarin Decl. ¶ 25; Simon Decl. ¶ 27. These Roosevelt Field Mall SAs are identified by either first name only or both first and last name. Jarin Decl. ¶ 25; Simon Decl. ¶ 27.
2. Kozak's Declaration
In support of Plaintiffs' Motion for Conditional Certification, Plaintiffs submit the declaration of Danny Kozak, former GM of Burberry. Kozak explains that at each store, Burberry employs a GM to manage the business operation of the store. Kozak Decl. ¶ 1. GMs report to one of four Regional Managers, who in turn report to Burberry's President of Stores. Id. Kozak worked for Burberry for over ten years earning promotions from SA to Men's Selling Manager, to Assistant General Manager (AGM) and, lastly, to GM, a position he held until Burberry terminated him in January 2012. Id. He is not asserting an overtime claim because he was promoted to a salaried position in Burberry's management prior to the period covered in this lawsuit. Id.
Kozak was hired as an SA in November 2001 and worked as an SA in the Manhasset store through 2007. Id. ¶ 4. During those years, he was only paid for his scheduled 40 hours weekly, notwithstanding the fact that he routinely worked 50 hours per week and even more during holidays. Id. According to Kozak, Regional Manager Barbara Hill told him that it was " standard in the retail industry for employees to work off the clock, and that customer service was Burberry's top priority and overtime pay was not authorized." Id.
In 2006, Kozak was promoted to the position of Men's Selling Manager (" MSM" ). " In each store [he] worked," Kozak saw the same practice of Burberry requiring Sales Associates to work off the clock. Id. ¶ 5.
In 2009, Kozak was promoted to AGM. As an AGM, he worked at all six stores in New York, Boston, Baltimore, and New Jersey. Id. ¶ 6. His duties included scheduling SAs in Burberry's stores and " following the same time keeping and weekly payroll procedures [he] had been taught by Burberry management." Id. " Under the training, supervision and direction of Burberry's Regional Manager Barbara Hill, [he] reported [SAs'] scheduled hours for time keeping and payroll purposes rather than the actual hours they worked." Id. In fact, according to Kozak, it was routine for SAs to work off-the-clock before and after their scheduled shifts and through lunch without pay at " every store." Id. ¶ 6.
Kozak was promoted to GM in March 2010. Id. ¶ 8. Among other duties, GMs are responsible for and are evaluated based on their store's profitability. Id. GMs report payroll costs to Regional Managers who evaluate GMs for compliance with payroll budgets provided by higher management. Id. Kozak ran the Manhasset store from March 2010 to January 2012. Id. ¶ 9. As GM, he reported to Northeast Regional Managers Barbara Hill and Marianne Naberhause. Id.¶ 10. The Northeast Regional Manager oversees approximately twenty retail stores in New York, New Jersey, Pennsylvania, Maryland and Washington D.C. Id.
Kozak's primary duty was to the Burberry store in Manhasset, New York. Id. ¶ 14. However, Regional Manager Hill often asked Kozak to work in other stores, to open new stores or train new GMs in Burberry's protocols, or to temporarily replace an absent GM or to assist an incumbent GM. Id. The only store identified by Kozak in this regard is the Roosevelt Field Mall, New York store, where Kozak trained GMs. Id. According to Kozak, " Burberry's widespread practice of requiring off[-]the[-]clock uncompensated work was a uniform policy in each store." Id.
Kozak explains that at the Manhasset store, SAs were frequently required to work more than their scheduled hours. Id. ¶ ¶ 21-23. All of this off-the-clock time was required because Burberry maintains a luxury environment for its customers which requires its stores to be in excellent shape at all times. Id. ¶ 24.
According to Kozak, although different employees held the position of Regional Manager, Burberry's time-keeping policies of reporting only scheduled hours and requiring SAs to work off the clock remained the same. Id. In fact, Kozak attended national and regional conferences in New Orleans, Las Vegas, and Baltimore where GMs " candidly discussed Burberry's scheduling and payroll policies," id. ¶ 13, and " discussed how each store was subject to the same off[-]the[-]clock polices," id. ¶ 34. The GMs confirmed that they all faced the same problem of staffing the stores adequately to achieve required sales goals while maintaining Burberry's high level of service without using unauthorized overtime hours. Id. ¶ 13. Regional Manager Hill and other senior management " frequently" told Kozak and other unidentified GMs that they had to " keep Burberry's overtime pay expenses down," id., and that they should " not authorize unscheduled overtime hours," id. ¶ 28. GMs who did report unscheduled overtime hours were downgraded in their evaluations by Burberry's management. Id. For example, Kozak was " told by a[n unidentified] GM that he did not receive a bonus in 2011 because he reported the number of overtime hours employees actually worked." Id. Regional Managers frequently admonished GMs to " strictly abide by the authorized payroll budget, which did not allow for adequate overtime pay." Id. In that regard, Regional Managers allotted GMs an authorized number of hours to spend on payroll and GMs were evaluated on whether the store met or exceeded target payrolls. Id. ¶ 29. Kozak continues:
Because GMs were evaluated in part based on how much overtime was paid to Sales Associates, there existed in every Burberry store major incentives to overlook recording unscheduled overtime work, which resulted in a widespread practice of permitting off[-]the[-]clock work. Burberry's payroll targets could only be achieved when overtime was not properly compensated. Overtime pay was routinely avoided by simply not recording all of the time Sales Associates actually worked. Unrecorded overtime
was not paid. Regional Manager Hill justified Burberry's illegal policies by telling me that Sales Associates did not usually complain about off[-]the-clock work because they earned commissions from sales.
I witnessed on a daily basis -- at numerous Burberry stores -- Burberry's policy of paying scheduled hours instead of the longer hours Sales Associated actually worked. For example, when a Sales Associate actually worked ten hours a day, his/her time was routinely only recorded for payroll purposes on Burberry's time sheets as having worked 8 hours that day.
Even though most Sales Associates worked an average of ten weekly overtime hours (fifteen weekly overtime hours in Holiday season), it was Burberry's policy to only pay them for their scheduled 40 weekly hours.
Throughout my ten plus years as a Sales Associate, MSM, AGM, and GM working at more than six different stores, Burberry's uniform payroll policy never varied.
Id. ¶ ¶ 30-33.
3. The Relief Sought by Plaintiffs in their Motion for Conditional Certification
Plaintiffs seek conditional certification of " all SAs employed by Burberry at any time from December 26, 2009 to the present, and in New York from December 26, 2006 to the present."  DE 47 at 2. Plaintiffs also seek approval of the proposed Notice of this action and Consent to Join form. Id. Lastly, Plaintiffs seek production, within ten days of the Court's entry of an Order conditionally certifying the class, of the names, last known addresses, home and cell phone numbers, e-mail addresses, and social security numbers of all SAs covered by this Order. Id.
B. Defendant's Opposition to Plaintiffs' Motion for Conditional Certification
In opposition to Plaintiffs' Motion for Conditional Certification, Defendant submits the declarations of twenty-two current and former SAs, twenty-two GMs, and five Market Directors (" MDs" ) from Burberry stores nationwide which Defendant contends unequivocally refute Plaintiffs' claims of nationwide improper pay practices. DE 50. Contrary to Plaintiffs' allegations, Defendant claims that Burberry's policy required overtime to be paid, whether pre-authorized or not.
C. Defendant's Motion to Strike
On the same day that Defendant served its opposition papers to Plaintiffs' Motion for Conditional Certification, Defendant served its Motion to Strike. DE 51. In its Motion, Defendant argues that large portions of Plaintiffs' and Kozak's declarations should be stricken because they are not based on personal knowledge and contain broad conclusory speculation, hearsay, and impermissible opinion. DE 52. Plaintiffs did not serve an opposition to Defendant's Motion to Strike. Instead, Plaintiffs opposed Defendant's Motion to Strike in their Reply Memorandum in Further Support of their Motion for Conditional Certification. DE 49.
D. Defendant's Motions to Correct and/or Supplement the Record
On March 12, 2014, Defendant filed a letter motion to " correct" the record by adding the recent deposition testimony of
three of the named Plaintiffs, namely, Ronnel Jarin, Brian Roach and Nikita Simon. DE 62. According to Defendant, this testimony materially contradicts key provisions of these Plaintiffs' declarations submitted in support of Plaintiffs' Motion for Conditional Certification. Id. Plaintiffs opposed the motion by letter filed on March 19, 2014. DE 63.
On June 6, 2014, Defendant filed a letter motion to supplement the record with Kozak's recent deposition testimony in connection with both Defendant's Motion to Strike and Defendant's opposition to Plaintiffs' Motion for Conditional Certification. DE 66. In its motion, Defendant claims that Kozak's recent deposition testimony contradicts his sworn declaration and further demonstrates that Kozak has no personal knowledge about the allegations made in his declaration that Burberry has a nationwide practice of denying SAs overtime pay. Id. In response, Plaintiffs maintain that Kozak's deposition testimony corroborates rather than refutes his earlier sworn declaration. DE 67.
E. Plaintiffs' Motion to Supplement the Record
On August 11, 2014, Plaintiffs filed a motion to supplement the record on their Motion for Conditional Certification by adding the declaration of recent opt-in Plaintiff Simms, who worked for Burberry at its Manhasset store for two years and at its Roosevelt Field Mall store for two years. DE 75; see also Simms Decl. ¶ 3. Defendant opposed the motion on August 14, 2014, arguing that Simms's declaration " does nothing to cure Plaintiffs' woefully deficient showing in support of their motion for nationwide certification." DE 76.
F. Plaintiffs' Motions to Compel
1. Plaintiffs' First Motion to Compel
Five weeks prior to filing their Motion for Conditional Certification, Plaintiffs filed a motion to compel Defendant to produce documents and information which Plaintiffs requested in their Interrogatories and Document Requests. Specifically, Plaintiffs seek:
(i) The names and contact information of a 25% sample of the putative FLSA collective members (" FLSA Collective" );
(ii) Complete time records (including EZ Labor records and the handwritten (or electronic) sign in/out sheets) for a 10% sample group of the FLSA Collective;
(iii) Complete payroll records (including ADP records) for a 10% sample group of the FLSA Collective; and
(iv) Complete time and payroll records for all former and current Sales Associates employed since 2006 at the Manhasset store and since 2009 at the Short Hills store.
DE 43 at 1-2. With regard to this latter request, Plaintiffs concede that they did not specifically ask for these timesheets and pay records. Id. at 2 n.4 Notwithstanding that fact, Plaintiffs maintain that in the event that the Court denies Plaintiffs' request for the 10% sample group of the FLSA Collective, Defendant should be required to produce these records. Id. Plaintiffs also ...