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Michael v. L.P.

United States District Court, S.D. New York

April 17, 2015

ERIC MICHAEL, individually and on behalf of others similarly situated, Plaintiffs,
BLOOMBERG L.P., Defendant.


THOMAS P. GRIESA, District Judge.

Plaintiff, a former worker in the Analytics Department at Bloomberg L.P. ("Bloomberg"), brings suit against Bloomberg under the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). Plaintiff has filed suit on behalf of himself and others similarly situated.

Before the Court is plaintiff's motion to conditionally certify a FLSA collective action pursuant to 29 U.S.C. § 216(b) of the FLSA. (Dkt. No. 8.) Plaintiff also seeks a court order approving plaintiff's proposed collective action notice, and requiring Bloomberg to provide information to identify potential opt-in plaintiffs.

For the reasons set forth below, the motion is granted.


The following facts are drawn from the Second Amended Complaint (Dkt. No. 32) (the "Complaint"), which plaintiff filed after the court denied plaintiff's motion for a broad protective order and for leave to proceed pseudonymously. In its opinion denying plaintiff's motion for leave to proceed pseudonymously, the court previously summarized the facts alleged here. (Dkt. No. 30.) These facts have not changed with the filing of the Second Amended Complaint, which now identifies plaintiff by name but is otherwise identical to the previously operative complaint. Nevertheless, the court recapitulates the facts here.

Plaintiff brings this case as a collective action under the FLSA. From August 2012 through January 2014, plaintiff worked in the Analytics Department at Bloomberg. Plaintiff represents a putative collective of "all representatives in the Analytics department who were not paid time and one half for hours over 40 worked in one or more weeks." Compl. ¶ 9. The collective includes three different job titles, which reflect varying levels of training and experience: Analytics Representatives, Analytics Specialists, and Advanced Analytics Specialists (collectively, "ADSK Reps"). The primary duty of ADSK Reps is to answer questions from Bloomberg customers regarding the operation of software running on Bloomberg terminals. These questions primarily came through "Bloomberg Chat" requests initiated by Bloomberg customers through their Bloomberg terminals.

According to the Complaint, ADSK Reps regularly worked more than 40 hours per week, and were required to work, without overtime pay, before and after their shifts and during lunch hours. The Complaint further alleges that ADSK Reps were required to work from home, as well as on weekends and holidays, without receiving overtime pay.


The FLSA regulates minimum and overtime wages paid by employers engaged in interstate commerce, among other practices. Grochowski v. Phoenix Canst, 318 F.3d 80, 87 (2d Cir. 2003). The statute affords workers a right to sue on behalf of themselves and "other employees similarly situated" for violations of the minimum wage and overtime provisions of the FLSA. See 29 U.S.C. § 216(b).

Courts in this circuit follow a two stage certification process for FLSA collective actions: first, on the initial motion for conditional class certification, and second, after discovery. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). At this first stage, the burden is on plaintiff to show that he and potential opt-in plaintiffs are similarly situated. E.g., Kim Man Fan v. Ping's On Matt, Inc., 13 Civ. 4939, 2014 WL 1512034, at *1 (S.D.N.Y. Apr. 14, 2014). However, this burden is minimal, because after discovery, courts look to the record to determine whether opt-in plaintiffs are truly similarly situated to the name plaintiffs; if not, the action may be "de-certified" and the opt-in claims may be dismissed. Myers, 624 F.3d at 555; Amador v. Morgan Stanley & Co. LLC, No. 11 Civ. 4326, 2013 WL 494020, at *3 (S.D.N.Y. Feb. 7, 2013). To meet this low threshold at the first stage, plaintiffs need only make a "modest factual showing that [he] and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law." Myers, 624 F.3d at 555. Plaintiff may "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." !d. Although this "modest factual showing cannot be satisfied simply by unsupported assertions, ... 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." ld. (internal citation omitted).

Because the determination that plaintiffs are similarly situated is merely preliminary, courts typically grant conditional certification. Amador, 2013 WL 494020, at *3. And, in reviewing a request for conditional certification, the court need not evaluate the underlying merits of plaintiffs claims. See lndergit v. Rite Aid Corp., No. 08 Civ. 9361, 2010 WL 2465488, at *4 (S.D.N.Y. Jun. 16, 2010).

At this point in the litigation, plaintiff has satisfied his minimal burden of showing that he is "similarly situated" to the proposed collective members. In addition to the allegations in the Complaint, the affidavit submitted by plaintiff in support of his motion demonstrates that he is similarly situated to other ADSK Reps. Plaintiff and other ADSK Reps share similar workplace responsibilities, the same location of employment, and similar salary and overtime practices. This showing is all that is required under § 216(b).

In opposition, Bloomberg urges the court to hold that the ADSK Reps who would be potential opt-in plaintiffs are subject to certain exemptions from the FLSA. Bloomberg claims that these potential plaintiffs are subject to the "administrative exemption, " which exempts from FLSA coverage salaried workers earning at least $455 per week"[w ]hose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or employer's customers" and "includes the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200(a)(2)-(3). Bloomberg also claims that some or all the potential opt-in plaintiffs are subject to the "computer exemption, " which exempts from the FLSA overtime requirements "any employee ...

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