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Castillo v. Perfume Worldwide Inc.

United States District Court, E.D. New York

March 30, 2018

NELSON CASTILLO, MARTA VALLADARES, ARACELY VALLADARES, CARLOS REYES, and YOSELY ESPINAL HENRIQUEZ, individually and on behalf of all others similarly situated, Plaintiffs,
v.
PERFUME WORLDWIDE INC. and PIYUSH GOLIA, Defendants.

          MEMORANDUM AND ORDER

          A. KATHLEEN TOMLINSON, U.S. MAGISTRATE JUDGE

         I. Preliminary Statement

         Nelson 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.

         II. Background

         A. Factual Background

         The 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.

         Plaintiffs 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.

         B. Procedural Background

         Plaintiffs 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.[1] DE 29.

         III. Legal Standard

         A. Legal Standard on a Motion for Conditional Certification

         The 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).

         Courts 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 marks omitted).

         The 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”).

         At the 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).

         “Although 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).

         The 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”).

         B. Notice of Pendency

         “Neither 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.

         IV. Discussion

         A. Conditional Certification

         Plaintiffs 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 “Covered Employees”).[2]

         Plaintiff's 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).

         In 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, Esq.[3] (“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.

         Plaintiffs 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. ¶ 16.

         Plaintiffs 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. ¶ 15.

         The 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.[4] 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.

         Although 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.

         The 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 affidavit).

         Moreover, 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).

         The 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.[5] 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 situated.

         B. Proposed Notice to Opt-ins

         Although 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.[6]

         i. Improper Use of Trade Name

         In 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.

         According 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 Order.

         ii. Placement of “Questions? Contact Nadia Estrada”

         Defendants further object to the placement of the following message at the bottom of each ...


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