United States District Court, E.D. New York
ROBERT J. ARCIELLO, FRANCIS J. GOREY, JR., DIANE MASTROPAOLO, GLEN F. TUIFEL, DANIEL E. SPEICHER, LAWRENCE J. LOISELLE, JOSEPH T. WHITTAKER, JAMES SHARKEY, KIRK FOWLKES, JOHN CLOUDMAN, NICHOLAS PALMESE, JOHN OCHWAT, and all others similarly situated, Plaintiffs,
COUNTY OF NASSAU and EDWARD MANGANO, in his individual and official capacity, Defendants.
MEMORANDUM & ORDER
I. LOCKE United States Magistrate Judge
Robert J. Arciello, Francis J. Gorey, Jr., Diane Mastropaolo,
Glen F. Tuifel, Daniel E. Speicher, Lawrence J. Loiselle,
Joseph T. Whittaker, James Sharkey, Kirk Fowlkes, John
Cloudman, Nicholas Palmese, and John Ochwat (collectively
“Plaintiffs”) commenced this action, on behalf of
themselves and all other similarly situated persons, seeking,
among other things, unpaid overtime compensation from
Defendants County of Nassau (the “County”),
Edward Mangano, in his individual and official capacities
(together with the County, “Defendants”), and
Nassau County Civil Service Commission, 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 (“NYLL”). See Complaint
(“Compl.”), Docket Entry (“DE”) .
before the Court, on referral for decision from the Honorable
Arthur D. Spatt, is Plaintiffs' motion for an order: (i)
conditionally certifying this action as an FLSA collective
action pursuant to 29 U.S.C. § 216(b); (ii) compelling
Defendants to provide Plaintiffs' counsel with a
computer-readable data file containing the names, addresses,
and telephone numbers of potential opt-in members, namely,
current and former nonexempt employees of the County dating
back six years from the filing of the Complaint; (iii)
authorizing circulation of a proposed Notice of Lawsuit With
Opportunity to Join (the “Proposed Notice”),
see DE [14-1], Ex. N, to all similarly situated
individuals via United States Postal Service first-class
mail; and (iv) authorizing the posting of the Proposed Notice
in both Newsday and Plaintiffs' union newsletter, CSEA
Express. See DE . Defendants oppose conditional
certification and certain aspects of the Proposed Notice.
See DE . For the reasons stated herein,
Plaintiffs' motion is granted in part and denied in part
as set forth below.
following facts are taken from the Complaint and the
declarations submitted in support of the instant motion, and
are accepted as true for purposes of this motion.
County is a municipal corporation incorporated under the laws
of the State of New York. See Compl. ¶ 21.
Plaintiffs, current employees of the County, hold various
positions within the Sheriff's Department, Department of
Social Services, Police Department, Fire Marshal's
Office, Department of Recreation and Parks, Department of
Public Works, and Department of Health. See Id.
¶¶ 9-20. Plaintiffs were hired by the County in or
before January 2007, see id., and each Plaintiff is
classified as nonexempt from the FLSA's overtime
requirements, see Id. ¶ 3.
have all “experienced an average four-week lag in
overtime payment since as far back as [they] can
remember.” See, e.g., Declaration of Robert J.
Arciello (“Arciello Dec.”), DE [14-1], Ex. B,
¶ 5. The lag in overtime payment worsened starting in
2009, when the County integrated Intime, a computerized
timekeeping application, into its payroll system.
See Compl. ¶¶ 37-42; Arciello
Dec. ¶¶ 5-8. Plaintiffs dealt with “many
problems” with respect to their paychecks while the
County was transitioning systems. See, e.g.,
Arciello Dec. ¶ 7. Even after such problems were
resolved, Plaintiffs consistently experienced six- to
eight-week delays in payment of their overtime wages.
See, e.g., id. ¶ 8-9. Moreover, when
Plaintiffs eventually received their overtime wages, their
pay stubs did not specify the day, week, or month to which
those wages corresponded. See, e.g., id.
November 30, 2015, Plaintiffs' union, the Civil Service
Employees Association (“CSEA”), filed a grievance
notifying the County of the delays in payment of overtime
wages. See Id. ¶ 11. Yet, notwithstanding that
notice, the County's failure to promptly pay employees
for overtime persisted. See Compl. ¶ 5.
According to Plaintiffs, the delays still remain a
County-wide problem. See Id. Indeed, in
Plaintiffs' declarations submitted in support of the
instant motion, they specifically identify additional County
employees who, like them, have not been paid overtime wages
in a prompt manner. See, e.g., Arciello Dec. ¶
of Complaint dated July 18, 2016, Plaintiffs initiated this
lawsuit seeking to recover, among other things, damages
pursuant to the FLSA and NYLL. See Compl.
¶¶ 1-4. Plaintiffs assert their claims on their own
behalves and on behalf of all County employees who have not
received, and continue not to receive, earned overtime
compensation by their scheduled payday. See Id.
August 8, 2016, Defendants filed a motion to dismiss portions
of the Complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure (“Fed. R. Civ.
P.”) 12(b)(6). See DE , , . On
February 7, 2017, the Honorable Arthur D. Spatt issued a
Decision & Order which, among other things, dismissed
Plaintiffs' claim for discrimination under 42 U.S.C.
§ 1983 and dismissed all claims against Defendant Nassau
County Civil Service Commission. See DE .
now seek an order conditionally certifying this case as an
FLSA collective action and permitting Plaintiffs to send
“notice of pendency to potential collective action
members, current and former non-exempt employees, employed by
 Defendants dating back six years from the filing of the
[C]omplaint” pursuant to 29 U.S.C. § 216(b).
See Plaintiffs' Memorandum of Law in Support of
Their Motion to Proceed as a Collection Action and to
Facilitate Notice Under 29 U.S.C. Section 216(b)
(“Pl.'s Mem.”), DE , at 1. Plaintiffs
claim they have made the required “modest factual
showing” that they, and other nonexempt employees of
the County, “were victims of [the County's] common
policies and plans that violate the FLSA and NYLL.”
Pl.'s Mem. at 3. Plaintiffs also argue that they have
“established a sufficient factual nexus between their
situation and that of the other nonexempt employees employed
by [the County]” such that conditional certification
should be granted. Id. Plaintiffs further seek
authorization to post notice of the collective action in both
Newsday and their union newsletter, CSEA Express, and mail
notice and consent forms via United States Postal Service
first-class mail to potential class members. See Id.
at 9. In addition, Plaintiffs ask the Court to “direct
Defendants to provide their counsel with a list of the names,
addresses, phone numbers and dates of employment of all
potential collective action members, which are current and
former nonexempt employees of [the County] dating back six
years from the filing of the Complaint on July 18,
2016.” Id. at 10. In support of their motion,
Plaintiffs each submit a declaration describing the
County's alleged violations and identifying other
employees purportedly affected by such violations. See,
e.g., Arciello Dec. ¶¶ 3-18.
opposition, Defendants point out that not all County
employees utilize the Intime system, and argue that,
consequently, the proposed collective action members are
neither similarly situated nor victims of a common policy or
plan. See Memorandum of Law in Opposition to
Plaintiffs' Motion for Conditional Certification of a
Collective Action Under the FLSA (“Def.'s
Mem.”), DE [21-1], at 4. Moreover, Defendants argue
that, if the Court were to grant certification, notice should
be limited to two years because the statute of limitations
for claims under the FLSA is two years for non-willful
violations, and there is no evidence that Defendants
willfully violated the FLSA. See Id. at 5. For the
same reason, Defendants assert that Plaintiffs' request
for information about potential class members should be
limited to two years. See Id. at 9. Defendants also
object to Plaintiffs' request to publish the Proposed
Notice in Newsday and CSEA Express. See Id. at 9-10.
Finally, Defendants contend that the Proposed Order should be
modified in several respects and submitted to the Court for
approval before it is distributed. See Id. at 8.
to Section 207 of the FLSA, employees must be compensated
“at a rate not less than one and one-half times the
regular rate at which [they are] employed” for every
hour worked in excess of forty in a ...