United States District Court, E.D. New York
NELSON CASTILLO, MARTA VALLADARES, ARACELY VALLADARES, CARLOS REYES, and YOSELY ESPINAL HENRIQUEZ, individually and on behalf of all others similarly situated, Plaintiffs,
PERFUME WORLDWIDE INC. and PIYUSH GOLIA, Defendants.
MEMORANDUM AND ORDER
KATHLEEN TOMLINSON, U.S. MAGISTRATE JUDGE
Castillo, Marta Valladares, Aracely Valladares, Carlos Reyes
and Yosely Espinal Henriquez (collectively,
“Plaintiffs”) filed this collective action and
putative class action on behalf of themselves and all others
similarly situated against Perfume Worldwide Inc. and Piyush
Gola (collectively, “Defendants”) for violations
of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201 et seq., the New York Labor Law
(“NYLL”), Article 6 § 191(1) and Article 19
§§ 650 et seq., and the New York Codes, Rules, and
Regulations (“NYCRR”) § 142-2.2, 2.4. See
generally Complaint (“Compl.”) [DE 1]. Plaintiffs
seek to recover unpaid overtime compensation and regular
wages as well as other relief. Plaintiffs now move for
Conditional Certification and Court-Authorized Notice
pursuant to § 216(b) of the FLSA. For the reasons which
follow, Plaintiffs' motion is GRANTED, in part, and
DENIED, in part.
following facts asserted by Plaintiffs are taken from the
Complaint filed on May 16, 2017 [DE 1]. Defendant Perfume
Worldwide Inc. is an online retailer of fragrances, hair and
skin care products, cosmetics, candles and accessories.
Compl. ¶ 20. Defendant Piyush Golia has been the
President of Perfume Worldwide during the six-year period
preceding the commencement of this action. Id.
¶ 25. Plaintiffs are former employees of Defendants who
worked as warehouse workers or in customer service.
Id. ¶¶ 55, 65, 74, 86, 97. They bring this
action on behalf of “themselves and other similarly
situated persons who were current and former workers employed
by the Defendant, at any time during the three year period
prior to the filing of this complaint and who elect to opt-in
to this action.” Id. ¶ 31. The Complaint
also contains class action allegations on behalf of
plaintiffs “and a class consisting of all non-exempt
workers who have been employed by the Defendant in the State
of New York at any time during the six-year period prior to
the filing of this complaint.” Id. ¶ 35.
allege that Defendants implemented a uniform policy of
deducting 20 minutes a day from the Plaintiffs' work
hours for a morning break. Id. ¶ 49; see
Id. ¶¶ 58, 67, 76, 87. According to the
Complaint, as a result of this policy, the Defendants failed
to pay workers for all compensable working hours.
Id. ¶ 50. Plaintiffs aver that, “in most
instances, ” this policy resulted in the
defendant's failure to pay employees overtime for hours
worked in excess of 40 hours per week, Id. ¶
51; see Id. ¶¶ 60, 68, 78, 89, and,
“in some instances, ” the policy resulted in a
failure to pay for all straight hours worked. Id.
¶ 52; see Id. ¶¶ 61, 70, 80, 91.
Based on these allegations, the Complaint sets forth causes
of action for failure to pay overtime in violation of the
FLSA, NYLL and NYCRR, failure to pay straight wages in
violation of NYLL, and failure to compensate spread-of-hours
pay in violation of the NYCRR. See generally Compl.
commenced this action against Defendants on May 16, 2017. See
generally Compl. Plaintiffs filed the instant motion on
August 5, 2017. DE 11. Two days later, Plaintiffs filed an
application with the Court seeking the ability to file the
motion nunc pro tunc and requesting that the Court set a
briefing schedule for Opposition and Reply papers. See DE 14.
That same day, counsel for Defendants filed a motion to
strike Plaintiffs' motion for conditional certification
on the grounds that it was filed in violation of this
Court's Individual Practice Rules. DE 15. The Court
issued an Order addressing both filings on August 8, 2017.
See 8/8/17 Electronic Order. The Court held that, in its
discretion, it would accept Plaintiffs' motion for
conditional certification as filed, denying Defendants'
application to strike the motion. Id. The Court also
set deadlines for the filing of Defendants' Opposition
and Plaintiffs' Reply. Id. Judge Seybert
subsequently referred Plaintiff's motion for conditional
certification to this Court for a decision. DE 29.
Legal Standard on a Motion for Conditional
FLSA provides, in pertinent part, as follows:
Any employer who violates the provisions of section 206 or
section 207 of this title shall be liable to the employee or
employees affected in the amount of their unpaid minimum
wages, or their unpaid overtime compensation, as the case may
be, and in an additional equal amount as liquidated damages.
. . . An action to recover . . . may be maintained against
any employer (including a public agency) in any Federal or
State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and
other employees similarly situated. No. employee shall be a
party plaintiff to any such action unless he gives his
consent in writing to become such a party and such consent is
filed in the court in which such action is brought.
29 U.S.C. § 216(b). Section 216(b) provides an employee
with a private right of action to recover overtime
compensation and/or minimum wages. Id.; Cabrera
v. Stephens, No. 16CV3234, 2017 WL 4326511, at *4
(E.D.N.Y. Sept. 28, 2017) (citing Bifulco v. Mortg. Zone,
Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009)) (“The
FLSA provides a private right of action to recover unpaid
overtime compensation and/or minimum wages.”);
Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 57
(E.D.N.Y. 2011) (citing 29 U.S.C. § 216(b));
Gjurovich v. Emmanuel's Marketplace, Inc., 282
F.Supp.2d 101, 103 (S.D.N.Y. 2003) (quoting Hoffmann v.
Sbarro, Inc., 982 F.Supp. 249, 260 (S.D.N.Y. 1997)).
“Although the FLSA does not contain a class
certification requirement, such orders are often referred to
in terms of ‘certifying a class.'”
Bifulco, 262 F.R.D. at 212 (quoting Parks v.
Dick's Sporting Goods, Inc., No. 05 Civ. 6590, 2007
WL 913927, at *3 (W.D.N.Y. Mar. 23, 2007)) (internal
quotation marks omitted).
within the Second Circuit apply a two-step analysis to
determine whether an action should be certified as an FLSA
collective action. See Myers v. Hertz Corp., 624
F.3d 537, 544-45 (2d Cir. 2010) (noting that district courts
within this Circuit have “coalesced around a two-step
method” for analyzing collective action certification);
see also Keawsri v. Ramen-Ya Inc., No. 17-CV-2406,
2018 WL 279756, at *5 (S.D.N.Y. Jan. 2, 2018) (citing Myers,
624 F.3d 544-45); Bijoux v. Amerigroup New York, LLC,
No. 14-CV-3891, 2015 WL 4505835, at *2 (E.D.N.Y. July
23, 2015) (citing the same), report and recommendation
adopted by 2015 WL 5444944 (E.D.N.Y. Sept. 15, 2015). First,
the court determines whether the proposed class members are
“similarly situated.” Puglisi v. TD Bank,
N.A., 998 F.Supp.2d 95, 99 (E.D.N.Y. 2014) (quoting
Kalloo v. Unlimited Mech. Co. of NY, Inc., 908
F.Supp.2d 344, 346 (E.D.N.Y. 2012)) (citing Lee v. ABC
Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006));
McGlone v. Contract Callers, Inc., 867 F.Supp.2d
438, 442 (S.D.N.Y. 2012) (quoting Myers, 624 F.3d at 555). If
the court decides in the affirmative, then the proposed class
members must consent in writing to be bound by the result of
the suit, or “opt-in.” McGlone, 867
F.Supp.2d at 442 (citing Cunningham v. Elec. Data Sys.
Corp, 754 F.Supp.2d 638, 644 (S.D.N.Y. 2010)); see 29
U.S.C. § 216(b). The second step, which typically occurs
after the completion of discovery, requires the court to make
factual findings whether the class members are actually
similarly situated. Rosario v. Valentine Ave. Discount
Store, Co., 828 F.Supp.2d 508, 514 (E.D.N.Y. 2011)
(quoting Lynch v. United Servs. Auto. Ass'n, 491
F.Supp.2d 357, 368 (S.D.N.Y. 2007)). “At that juncture,
the court examines the evidentiary record to determine
whether the ‘opt-in' plaintiffs are, in fact,
similarly situated to the named plaintiff.”
Bifulco, 262 F.R.D. at 212 (quoting Hens v.
ClientLogic Operating Corp., No. 05-381S, 2006 WL
2795620, at *4 (W.D.N.Y. Sept. 26, 2006)) (internal quotation
instant motion concerns only the first step - whether the
proposed opt-in members are “similarly situated”
such that conditional certification should be granted. At
this stage, “the evidentiary standard is lenient,
” Bifulco, 262 F.R.D. at 212 (quoting Rubery v.
Buth-Na-Bodhaige, Inc., 569 F.Supp.2d 334, 336 (W.D.N.Y.
Aug. 8, 2008)), and plaintiffs need only “make a
‘modest factual showing' that they and potential
opt-in plaintiffs ‘together were victims of a common
policy or plan that violated the law.'” Myers, 624
F.3d at 555 (quoting Hoffmann, 982 F.Supp. at 261);
see, e.g., Perez v. Allstate Ins. Co., No.
11-CV-1812, 2014 WL 4635745, at *5 (E.D.N.Y. Sept. 16, 2014);
Trinidad v. Pret A Manger (USA) Ltd., 962 F.Supp.2d
545, 552 (S.D.N.Y. 2013); Cano v. Four M Food Corp.,
No. 08-CV-3005, 2009 WL 5710143, at *3 (E.D.N.Y. Feb 3,
2009); Doucoure v. Matlyn Food, Inc., 554 F.Supp.2d
369, 372 (E.D.N.Y. 2008). “In making this showing,
‘nothing more than substantial allegations that the
putative class members were together the victims of a single
decision, policy or plan' is required.” Sexton
v. Franklin First Fin., Ltd., No. 08-CV-4950, 2009 WL
1706535, at *3 (E.D.N.Y. June 16, 2009) (quoting
Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387
(W.D.N.Y. 2005)). Moreover, courts have repeatedly stated
that Section 216(b)'s “similarly situated”
requirement is “considerably less stringent” than
the requirements for class certification under Federal Rule
of Civil Procedure 23, and “that a party seeking to
maintain a collective action need not meet the requirements
of Rule 23 for class certification.” Rodolico v.
Unisys Corp., 199 F.R.D. 468, 481 (E.D.N.Y. 2001)
(collecting cases); see Dilonez v. Fox Linen Serv.,
Inc., 35 F.Supp.3d 247, 252 (E.D.N.Y. 2014) (citing
Puglisi, 998 F.Supp.2d at 98-99, at *2; Fed.R.Civ.P.
23) (stating that a collective action under the FLSA
“is different than a typical class action under the
Federal Rules of Civil Procedure, the strict requirements of
which - numerosity, commonality, typicality, and adequate
representation - do not apply to a collective action”).
initial certification stage, courts do not require proof of
an actual FLSA violation but rather require the existence of
a “‘factual nexus'  between the
plaintiff's situation and the situation of other
potential plaintiffs.” Sobczak v. AWL Indus.,
Inc., 540 F.Supp.2d 354, 362 (E.D.N.Y. 2007) (quoting
Wraga v. Marble Lite, Inc., No. 05-CV-5038, 2006 WL
2443554, at *1 (E.D.N.Y. Aug. 22, 2006)); see Fa Ting
Wang v. Empire State Auto Corp., No. 14-CV-1491, 2015 WL
4603117, at *6 (E.D.N.Y. 2015); see also Calderon v. King
Umberto, Inc., 892 F.Supp.2d 456, 459 (E.D.N.Y. 2012)
(quoting Sobczak, 540 F.Supp.2d at 362) (citing Jackson
v. N.Y. Telephone Co., 163 F.R.D. 429, 431 (S.D.N.Y.
1995)). This determination is typically based on the
pleadings, affidavits and declarations submitted by the
plaintiff or plaintiffs. See generally Fa Ting Wang, 2015 WL
4603117, at *5-6 (citing Kalloo v. Unlimited Mech. Co. of
N.Y., Inc., 908 F.Supp.2d 344, 346 (E.D.N.Y. 2012);
Brabham v. Mega Tempering & Glass Corp., No. 13
Civ. 54, 2013 WL 3357722, at *3 (E.D.N.Y. July 3, 2013)); see
also Robles v. Liberty Rest. Supply Corp., No.
12-CV-5021, 2013 WL 6684954, at *5 (E.D.N.Y. Dec. 18, 2013)
(citing the same).
plaintiff's ‘burden of proof is low, it is not
non-existent -- certification is not automatic.'”
Elamrani v. Henry Limousine, Ltd., No. CV20152050,
2016 WL 5477590, at *4 (E.D.N.Y. Sept. 28, 2016) (quoting
Sanchez v. JMP Ventures, L.L.C., 2014 WL 465542, at
*1 (S.D.N.Y. 2014)). As the Second Circuit has explained,
“[t]he ‘modest factual showing' cannot be
satisfied simply by ‘unsupported
assertions.'” Myers, 624 F.3d at 555 (quoting
Dybach v. State of Fla. Dep't of Corrections,
942 F.2d 1562, 1567 (11th Cir. 1991)); see Morales v.
Plantworks, Inc., No. 05-CV-2349, 2006 WL 278154, at *3
(S.D.N.Y. Feb. 2, 2006) (quoting Charles Alan Wright, Arthur
R. Miller, and Mary Kay Kane, 7B Federal Practice and
Procedure: Civil 3d § 1807, at 487-53 (2005)) (stating
that “conclusory allegations are not enough” to
meet the “modest factual showing” at the first
stage of collective action certification).
standard of proof, however, should still remain “low .
. . because the purpose of this first stage is merely to
determine whether ‘similarly situated' plaintiffs
do in fact exist.” Myers, 624 F.3d at 555 (citing
Hoffman, 982 F.Supp. at 261) (emphasis in original); see
Trinidad, 962 F.Supp.2d at 553 (quoting the same). With this
in mind, courts have found that the allegations in the
pleadings and the “personal observations of one
plaintiff's affidavit” are “sufficient to
make the modest factual showing necessary to conditionally
certify [a] class.” Hernandez v. NGM Mgmt. Grp.
LLC, No. 12-CV-7795, 2013 WL 5303766, at *3 (S.D.N.Y.
Sept. 20, 2013) (collecting cases); see Ella Shillingford
v. Astra Home Care, Inc. d/b/a True Care Home
Healthcare, No. 16 CIV. 6785, 2018 WL 1033243, at *3
(S.D.N.Y. Feb. 23, 2018) (citing Escobar v. Motorino E.
Vill. Inc., No. 14 Civ. 6760, 2015 WL 4726871, at *2
(S.D.N.Y. Aug. 10, 2015)) (“Accordingly, an FLSA
collective action may be conditionally certified upon even a
single plaintiff's affidavit.”); see also
Cabrera v. Stephens, No. 16CV3234, 2017 WL 4326511,
at *5 (E.D.N.Y. Sept. 28, 2017) (citing Juarez, v. 449
Restaurant, Inc., 29 F.Supp.3d 363, 369 (S.D.N.Y. 2014);
Doucoure, 554 F.Supp.2d at 374) (“Conditional
certification is regularly granted based upon a complaint and
one or two affidavits that collectively demonstrate the
requisite nexus.”); see also Bhumithanarn v. 22
Noodle Mkt. Corp., No. 14-CV-2625, 2015 WL 4240985, at
*3 (S.D.N.Y. July 13, 2015) (finding that the allegations in
the complaint and the affidavit of one named plaintiff
“met the minimal burden at this preliminary stage of
demonstrating that [the plaintiffs] were subject to a common
policy or practice and were ‘similarly situated' to
one another and to potential opt-in plaintiffs”).
Notice of Pendency
the [FLSA], nor other courts, have specifically outlined what
form court-authorized notice should take nor what provisions
the notice should contain.” Moore v. Eagle
Sanitation, Inc., 276 F.R.D. 54, 59 (E.D.N.Y. 2011)
(quoting Fasanelli v. Heartland Brewery, Inc., 516
F.Supp.2d 317, 323 (S.D.N.Y. 2007)) (internal quotation marks
omitted). “The Supreme Court has abstained from
reviewing the contents of a proposed notice under §
216(b) noting ‘we decline to examine the terms of the
notice ... We confirm the existence of the trial court's
discretion, not the details of its exercise.'”
Id. (quoting Hoffmann-La Roche, Inc. v.
Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 486, 107
L.Ed.2d 480 (1989)); Contrera v. Langer, 278
F.Supp.3d 702, 721 (S.D.N.Y. 2017) (quoting Martin v.
Sprint/United Mgmt. Co., No. 15-5237, 2016 WL 30334, at
*15 (S.D.N.Y. Jan. 4, 2016) (internal quotation marks
omitted)) (“Upon authorizing the distribution of notice
to potential opt-in plaintiffs, the district court maintains
‘broad discretion' over the form and content of the
notice.”) (internal quotation marks omitted).
“When exercising its broad discretion to craft
appropriate notices in individual cases, District Courts
consider the overarching policies of the collective suit
provisions” and whether the notice provides
“accurate and timely notice concerning the pendency of
the collective action, so that [an individual receiving the
notice] can make an informed decision about whether to
participate.” Fasanelli, 516 F.Supp.2d at 323
(quoting Hoffmann-La Roche, Inc., 493 U.S. at 170,
110 S.Ct. 482) (internal quotation marks omitted);
Arciello v. Cty. of Nassau, No. 16CV3974, 2017 WL
4998074, at *8 (E.D.N.Y. Oct. 30, 2017) (quoting
Hernandez v. Immortal Rise, Inc., No. 11 CV 4360,
2012 WL 4369746, at *2 (E.D.N.Y. Sept. 24, 2012)). With these
principles in mind, the Court turns to Plaintiffs' motion
and Defendants' opposition.
seek, among other relief,
Conditional certification of this action as a representative
collective action pursuant to the FLSA, 29 U.S.C. § 216,
on behalf of all current and former hourly employees of
Perfume Worldwide, Inc. who have been employed at any time
during the three (3) year period immediately preceding the
filing of the complaint through to the present time (the
Memorandum of Law in Support of Motion for Conditional
Collective Certification and for Court Facilitation of Notice
Pursuant to 29 U.S.C. § 216 (“Pls.'
Mem.”) [DE 12] at 1; see Proposed Notice, annexed as
Exhibit 1 to Notice of Plaintiffs' Motion for Conditional
Collective Certification and for Court Facilitation of Notice
Pursuant to 29 U.S.C. § 216(b) (“Proposed
Notice”) [DE 11-1]. In moving for conditional
certification, Plaintiffs rely on facts alleged in the
Complaint as well as their own Declarations. Having reviewed
these materials, the Court finds that the named Plaintiffs
have made the “modest factual showing” necessary
to demonstrate that they and the potential opt-ins together
“were victims of a common policy or plan that violated
the law.” See Zhenkai Sun v. Sushi Fussion Express,
Inc., No. 16CV4840, 2018 WL 1168578, at *3 (E.D.N.Y.
Mar. 6, 2018) (quoting Doucoure, 554 F.Supp.2d at
372) (citing Myers, 624 F.3d at 555).
their Declarations, Plaintiffs describe the alleged
“common policy or plan” which they assert
violates the FLSA and NYLL. Their allegations are consistent
with the allegations set forth in the Complaint with respect
to each named plaintiff. Aracely Valladares (“A.
Valladares”) states that she was employed as a
warehouse worker by Perfume Worldwide, Inc. from June 2015 to
January 2016. See Declaration of Aracely Valladares
(“A. Valladares Decl.”), annexed as Exhibit 1 [DE
13-1] to the Declaration of Steven J. Moser,
(“Moser Decl.”) [DE 13], ¶ 3; see Compl.
¶ 74. Aracely Valladares initially worked at the
Defendants' facility in Syosset until all employees at
that location were relocated to the Defendants'
Ronkonkoma facility, which had approximately 200 employees.
A. Valladares Decl. ¶¶ 4-5. In her Declaration,
Aracely Valladares states that Defendant Golia “told me
that I would start work at 9 a.m., that I would have a 20
minute morning break, a 40 minute meal period, and that I
would work until 7 p.m. A. Valladares Decl. ¶ 8; see
Compl. ¶ 76. Aracely Valladares further represents that
the morning break was from 10:40 a.m. to 11 a.m. A.
Valladares Decl. ¶ 10; Compl. ¶ 76. She explains
that when she received her first paycheck, she noticed that
her hours “were short” and discussed the
discrepancy with her colleagues, who informed her that
Defendants were deducting the 20 minute morning break and 40
minute lunch break from their pay. Id. ¶ 11;
see Compl. ¶ 78. Aracely was also informed that
“[i]t has always been like this.” A. Valladares
Decl. ¶ 12. At some point, Aracely confronted Osman
Chavez, the manager of all warehouse employees, about the
unlawful reduction to her pay. A. Valladares. ¶ 13.
According to the Aracely's Declaration, Chavez too
responded that “[i]t's always been that way.”
Id. ¶ 14. The regular shift for warehouse and
office workers is 9 a.m. to 7 p.m. according to Aracely.
Id. ¶ 8; see Compl. ¶ 82. Defendants'
failure to compensate employees for the 20-minute break
resulted in reduced overtime wages. A. Valladares Decl.
¶ 15; see Compl. ¶ 79. Lastly, Aracely explains
that “she has spoken with other employees of Perfume
Worldwide who confirmed that Perfume Worldwide does not
compensate employees for the 20 minute morning break.”
Id. ¶ 16. Those employees with whom she spoke
are identified by name as: Tony Lemus (a manager), Osman
Chávez (the warehouse manager), Fernando Alejandro
Cruz, Griselda Reyes, Cristino Gáleas, Maria de la Paz
Rivas, José Maldonado, Oscar Palma, Alex Reyes and
Mauricio Hernández. Id.
also submit the supporting Declaration of Yosely Espinal
Henriquez. Henriquez was employed by Perfume Worldwide from
July 2015 to December 2015 at the company's Syosset
location. See Declaration of Yosely Espinal
Henriquez (“Henriquez Decl.”) [DE 13-2], annexed
as Exhibit 2 to the Moser Decl. [DE 13] ¶¶ 3-4;
see Compl. ¶¶ 95-96. The Syosset facility
had at least 80 employees. Henriquez Decl. ¶ 4. From
July 2015 to August 2015, Henriquez worked as a warehouse
worker, and from August 2015 until December 2015, she worked
as an office employee. Henriquez Decl. ¶ 6-7;
see Compl. ¶ 97. Henriquez states that
“[e]ach day all warehouse and office employees had a
morning break of 20 minutes and a 40 minute meal
period.” Henriquez Decl. ¶ 8;
see Compl. ¶ 98. She explains that the morning
break was announced over the Public Announcement system at
10:40 a.m. Henriquez Decl. ¶ 11; see Compl.
¶ 98. Like Aracely Valladares, Henriquez noticed from
her first paycheck that she was not compensated for the
20-minute morning break. Henriquez Decl. ¶ 10;
see Compl. ¶ 28. Henriquez represents that she
as well as most other works worked from 7 a.m. to 5 p.m.,
Monday through Friday, and therefore worked more than 40
hours per week. Henriquez Decl. ¶¶ 13-15.
Consequently, the Defendants' failure to pay for the
break resulted in a loss of overtime wages. Id.
¶ 15; see Compl. ¶ 99. Henriquez explains
that she was present when Aracely Valladares confronted the
warehouse manager, Osman Chavez, regarding the company's
failure to compensate employees for the morning break and
overheard him say in response to Aracely Valladares that
“it's always been like that.” Henriquez Decl.
also submit the supporting declaration of another employee,
Carlos Reyes. Declaration of Carlos Reyes (“Reyes
Decl.”) [DE 13-3], annexed to the Moser Decl. as
Exhibit 3. Reyes states that he was employed by Perfume
Worldwide from approximately August 2012 to March 2016. Reyes
Decl. ¶ 3; see Compl. ¶ 84. After
initially working at a facility operated by Perfume Worldwide
in Plainview, New York, Reyes was later transferred to the
company's Syosset facility, along with all the other
workers from the Plainview facility. Reyes Decl. ¶¶
4, 6; see Compl. ¶ 86. Ultimately, all
employees were relocated to a facility in Ronkonkoma, which
had approximately 150 to 200 employees. Reyes Decl.
¶¶ 8-9; see Compl. ¶ 85. Reyes
initially worked as a warehouse worker but later became an
office worker, which included customer service duties. Reyes
Decl. ¶ 12; see Compl. ¶ 86. Reyes
maintains that “[a]ll hourly employees, including
warehouse and office workers, took a 20 minute morning break
and a 40 minute lunch, during my entire employment with
Perfume Worldwide.” Reyes Decl. ¶ 13; see
Compl. ¶ 87. As with Aracely Valladares and Yosely
Henriquez, when Reyes received his first paycheck, he noticed
that Perfume Worldwide was deducting an hour each day from
his pay. Reyes Decl. ¶ 14; see Compl. ¶
87. At that time, Reyes was unaware that Perfume Worldwide
was required to pay him for the 20-minute break. Reyes Decl.
final declaration submitted by Plaintiffs in support of their
motion is that of Marta Valladares (“M.
Valladares”). See Declaration of Marta
Valladares (“M. Valladares Decl.”) [DE 13-4],
annexed as Exhibit 4 to the Moser Decl. Perfume Worldwide
employed Marta Valladares as a warehouse worker from August
2014 to February 2016. M. Valladares Decl. ¶ 3;
see Compl. ¶ 65. Marta Valladares began working
for Perfume Worldwide at its Plainview location. M.
Valladares Decl. ¶ 5; Compl. ¶ 66. Like the other
named Plaintiffs, she states that the company later moved to
a location in Syosset and then to a facility in Ronkonkoma.
M. Valladares Decl. ¶ 5; see Compl. ¶ 67.
According to Marta, “[t]here were at least 70 employees
at the Plainview facility, 100 employees at the Syosset
facility, and 150 employees at the Ronkonkoma
facility.” M. Valladares Decl. ¶ 6. She further
states that during her entire employment with Perfume
Worldwide, there was a break from 10:40 a.m. to 11 a.m. and a
40-minute lunch break. M.Valladares Decl. ¶ 7;
see Compl. ¶ 67. At the Defendants'
Plainview location, Marta recalls that, the breaks were
signaled by a bell and at the Syosset and Ronkonkoma
facilities, they were signaled by an announcement. M.
Valladares Decl. ¶ 8. After her first week, she noticed
that Perfume Worldwide was deducting a full hour each day
from her pay. Id. ¶ 10. This resulted in
Marta's not being paid overtime wages. Compl. ¶ 68.
When Marta inquired with the warehouse manager, Osman, about
the deduction, she was told that “the workers had said
that 15 minutes was not enough for the morning break so
Piyush Golia (the owner) decided to give all employees a 20
minute break and a 40 minute meal period, but the entire hour
would be deducted.” M. Valladares Decl. ¶ 11.
According to Marta, when she told Osman that she thought the
defendant's conduct was illegal, he responded “it
is what it is.” Id. ¶ 12.
Plaintiffs have not provided the Court with a Declaration
completed by Nelson Castillo, the fifth and final named
plaintiff in this case, Plaintiffs do set forth allegations
with regard to Nelson Castillo in the Complaint. Defendants
employed Nelson Castillo as a warehouse worker from November
2013 until April 2017. Compl. ¶ 55. He initially worked
at Defendants' Plainview location but was later relocated
to its facility in Ronkonkoma. Id. ¶ 56. Like
the other named plaintiffs, Castillo took a 20 minute
uncompensated break each morning from 10:40 a.m. to 11 a.m.
See id. ¶¶ 57-58. Castillo worked from 7
a.m. to 7 p.m. Monday through Friday, and often worked on
Saturday as well. Id. ¶ 59. As such, his
workweek typically exceeded 40 hours each week. Id.
According to the Complaint, in most instances,
Defendants' deduction of the 20-minute morning break
resulted in the failure to pay Castillo overtime wages.
Id. ¶ 60.
Court finds that these allegations as set forth in
Plaintiffs' Declarations as well as in the Complaint
support an inference that Plaintiffs have been subjected to a
common policy of failing to compensate hourly employees for
the 20-minute morning break. See generally, Keawsri,
2018 WL 279756, at *5 (quoting Myers, 624 F.3d at
554-55) (At the conditional certification stage,
“plaintiffs need only ‘make a modest factual
showing that they and potential opt-in plaintiffs together
were victims of a common policy or plan that violated the
law.'”); Bhumithanarn, 2015 WL 4240985, at
*3; Kemper, 2012 WL 4976122, at *2;
Khamsiri, 2012 WL 1981507, at *1; Klimchak v.
Cardrona, Inc., No. CV-09-4311, 2011 WL 1120463, at *4-6
(E.D.N.Y. Mar. 24, 2011) (granting conditional certification
at the initial stage of discovery where the two named
plaintiffs and two opt-in plaintiffs submitted affidavits);
Cano v. Four M Food Corp., No. 08-CV-3005, 2009 WL
5710143, at *6 (E.D.N.Y. Feb. 3, 2009) (granting conditional
certification, finding that sworn statements from the
plaintiffs “set[ ] forth defendants' common denial
of overtime pay, the named plaintiffs' personal knowledge
of and the names of other coworkers who were allegedly
subject to the same denial of overtime pay.”);
Iriarte v. Redwood Deli & Catering, Inc., No.
07-cv-5062, 2008 WL 2622929, at *3 (E.D.N.Y. June 30, 2008)
(granting certification on the basis of plaintiff's one
an employer's failure to count a 20-minute break towards
an employee's working hours violates the FLSA.
“Under both the FLSA and NYLL, ‘all of the time
worked during a continuous workday is compensable, save for
bona fide meal breaks.'” Hernandez v. Jrpac
Inc., No. 14 CIV. 4176, 2016 WL 3248493, at *27
(S.D.N.Y. June 9, 2016) (citing Hart v. Rick's
Cabaret Intern., Inc., 60 F.Supp.3d 447, 475 n.15
(S.D.N.Y. 2014); 29 C.F.R. § 785.19(a), recognized
as invalid on other grounds by Havrilla v. United
States, 125 Fed.Cl. 454, 464 (2016) (Circuit Courts of
Appeals have rejected the “complete relief”
portion of the regulation's definition of
“meal” and instead “examine the totality
of the circumstances to determine whether the employee spends
his meal period engaged in activities that are predominantly
for his own benefit or activities that instead inure
predominantly to the benefit of his employer.”
(collecting cases)). Short rest periods running from “5
minutes to about 20 minutes” must be counted toward an
employee's “working hours.” 29 C.F.R. §
785.18; see Melgadejo v. S & D Fruits &
Vegetables Inc., No. 12CIV6852, 2015 WL 10353140, at *9
n.7 (S.D.N.Y. Oct. 23, 2015), report and recommendation
adopted sub nom. Melgadejo v. S&D Fruits & Vegetables
Inc., No. 12-CV-6852, 2016 WL 554843 (S.D.N.Y. Feb. 9,
2016); see also Solis v. Cindy's Total Care,
Inc., No. 10 CIV. 7242, 2012 WL 28141, at *9 (S.D.N.Y.
Jan. 5, 2012); Espinoza v. 953 Assocs. LLC, 280
F.R.D. 113, 121 n.34 (S.D.N.Y. 2011); Daniels v. 1710
Realty LLC, No. 10-CV-0022, 2011 WL 3648245, at *6 n.6
(E.D.N.Y. Aug. 17, 2011) (“Rest periods ... of 5
minutes to about 20 minutes [ ] are common in industry ...
[t]hey must be counted as hours worked.”) (internal
quotation marks omitted), aff'd, 497
Fed.App'x. 137 (2d Cir. 2012); Wong v. Hunda Glass
Corp., 09 Civ. 4402, 2010 WL 2541698, at *3 (S.D.N.Y.
June 23, 2010).
allegations in the Complaint and Plaintiffs' Declarations
support an inference that Plaintiffs and other potential
opt-ins are similarly situated. So does Defendants'
representation that they do not challenge the conditional
certification sought by Plaintiffs. See Defendants'
Memorandum of Law in Limited Opposition to Motion for
Conditional Certification (“Defs.'
Opp'n.”) [DE 24] at 1; see also Johnson v.
Carlo Lizza & Sons Paving, Inc., 160 F.Supp.3d 605,
611 (S.D.N.Y. 2016) (“[D]efendants' decision not to
oppose the motion for conditional certification, even in
part, is persuasive reason to authorize notice as
requested.”). The Court notes that Defendants will have
an opportunity later in the litigation to move for
de-certification of the collective should they believe that
members of the collective are not actually similarly
Proposed Notice to Opt-ins
Defendants do not object to certification of Plaintiffs'
proposed collective, they do vigorously contest certain
aspects of Plaintiffs' proposed notice to potential
opt-ins. Defendants' argue that Plaintiffs' notice
“unfairly amounts to an advertisement of the services
of plaintiff's counsel.” Defs.' Opp'n. at
2; Declaration of Jacques Catafago in Limited Opposition
(“Catafago Decl.”) [DE 23] ¶ 4. In
particular, Defendants' object to what they believe to be
the improper use of “Moser Employment Law” as
opposing counsel's firm name and the use of that name
throughout the proposed notice. Defs.' Opp'n. at 2-3;
Catafago Decl. ¶ 4. Defendants further object to the
placement of “Questions? Contact Nadia Estrada”
and Ms. Estrada's contact information at the bottom of
each page of the notice, and to Plaintiffs' directive
that opt-ins mail their forms to Plaintiffs' counsel
rather than directly to the Court. Defs.' Opp'n. at
2; Catafago Decl. ¶ 4. These objections are set forth in
the body of Defendants' Memorandum opposing portions of
the Notice of Pendency as well as in Attorney Catafago's
Declaration. Moreover, Attorney Catafago's Declaration
includes Defendants' own version of the proposed notice
and opt-in form. See Defendants' Proposed
Notice, annexed as Exhibit A [DE 23-1] to Catafago Decl. The
objections set forth in Defendants' proposed notice go
well beyond the three areas noted here.
Improper Use of Trade Name
support of their argument that “Moser Employment
Law” constitutes an improper trade name, Defendants
cite, in part, 22 NYCRR § 1200.7[B], which prohibits a
lawyer in private practice from practicing “under a
trade name…or a firm name containing names other than
those of one or more of the lawyers in the firm.”
Defendants' counsel Catafago explains that he
“raised with plaintiffs' counsel the issue of the
repeated and improper use of the trade name
‘Moser Employment Law' but could not reach any
resolution.” Catafago Decl. ¶¶ 4, 6.
to the representations made in Plaintiffs' Reply
Memorandum, it appears that Defendants' objection was
subsequently resolved. Steven Moser, counsel for Plaintiffs,
represents to the Court that he changed the name of his firm
to “Moser Law Firm, P.C., ” effective September
20, 2017, after defense counsel brought the issue regarding
the use of the term “employment” to his
attention. Plaintiffs' Reply Memorandum of Law in Support
of Motion for Conditional Certification of FLSA Claims
(“Pls.' Reply”) [DE 27] at 2. Based on this
information, the Court directs Attorney Moser to submit a
revised proposed notice to the Court reflecting his
firm's name change, as well as other revisions discussed
below, within 15 days of the entry of this Memorandum and
Placement of “Questions? Contact Nadia
further object to the placement of the following message at
the bottom of each ...