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Arciello v. County of Nassau

United States District Court, E.D. New York

October 30, 2017

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,
v.
COUNTY OF NASSAU and EDWARD MANGANO, in his individual and official capacity, Defendants.

          MEMORANDUM & ORDER

          STEVEN I. LOCKE United States Magistrate Judge

         Plaintiffs 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”) [1].

         Currently 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 [14]. Defendants oppose conditional certification and certain aspects of the Proposed Notice. See DE [21]. For the reasons stated herein, Plaintiffs' motion is granted in part and denied in part as set forth below.

         I. Background

         The 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.

         A. Facts

         The 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.

         Plaintiffs 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. ¶ 10.

         On 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. ¶ 14.

         B. Procedural History

         By way 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. ¶ 6.

         On 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 [5], [6], [7]. 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 [13].

         Plaintiffs 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 [14], 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.

         In 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.

         II. Discussion

         Pursuant 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 ...


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