United States District Court, N.D. New York
Rinckey KELLY A. MAGNUSON, ESQ. NICHOLAS A. DEVYATKIN, ESQ.
Attorneys for plaintiff.
Johnson & Laws, LLC GREGG T. JOHNSON, ESQ. COREY A.
RUGGERIO, ESQ. LORAINE CLARE JELINEK, ESQ. Attorneys for
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE.
pending before the Court is plaintiff Meagan Coons'
motion for conditional certification of this matter as a
collective action pursuant to Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 23(b)(3). Dkt. No. 28.
Plaintiff also seeks an order compelling defendant to provide
plaintiff with the names and addresses of potential opt-in
plaintiffs. Id. Defendant Family Counseling Center
of Fulton County (“FCC”) opposed the motion for
conditional collective certification. Dkt. No. 29. Plaintiff
filed a reply. Dkt. No. 32. For the reasons that follow, it
is recommended that plaintiff's motion be granted.
Coons worked for FCC as a Domestic Violence Coordinator
(“DVC”) from March 2015 until August 2015, and as
Domestic Violence Residential Advocate from August 2015
through September 2016. Dkt. No. 1 (“Compl.”) at
2. Plaintiff contends that she was required to work in excess
of forty hours per week “on an almost weekly
basis.” Id. Plaintiff contends that FCC failed
to pay Coons and others similarly-situated “at any rate
of pay, let alone at the statutorily-required overtime rate
of one and one-half times their standard rate of pay, their
agreed upon straight time rate of pay, or even the minimum
wage rate, for virtually all hours that Coons and FLSA
Plaintiffs worked per week in excess of forty (40).”
declares that she was required to work full-time, at forty
hours per week, and “in addition, from at least March
2, 2015 onward, ” she also “often worked as an
‘on call' worker” on weekends wherein she
“often” worked one or two twenty-four hour shifts
“performing her regular work duties.” Compl. at
9. Plaintiff was compensated “for only forty (40) hours
per week for this work schedule, plus a thirty ($30.00)
dollar stipend for the weekend, resulting in her being unpaid
at any rate for approximately twenty-four (24) to forty-eight
(48) hours of work, when she should have been paid
overtime.” Id. While “on call, ”
plaintiff, and others similarly situated, were
“required to be available to answer calls from
individuals who call Family Counseling's hotline;
required to stay within twenty (20) minutes driving distance
of the shelter and would be reprimanded for straying too far;
and, consistently take calls from clients and potential
clients and log them in a computer tablet system.”
Id. at 10-11. Because of the on-call requirements,
plaintiff and others similarly situated were “unable to
engage in any significant personal or social activities
during the times they were on call . . . .”
Id. at 11. Plaintiff contends that defendant's
failure to pay time and one-half for overtime work also
violates New York Labor Law § 160 and 12 NYCRR §
142-2.2. Id. at 12.
argues that she, and others similarly situated, should have
been paid at an overtime rate of time and one-half for all
hours worked over forty hours per week, and that such failure
violates the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 207(a). Compl. at 11. Further, plaintiff
contends that by failing to pay her and others similarly
situated at the minimum hourly rate for each hour worked,
defendant violated FLSA § 206(a). Plaintiff contends
that defendant's failure to pay time and one-half for
overtime work also violates New York Labor Law § 652(1)
and 12 NYCRR § 142-2.1. Id. at 13. Next,
plaintiff alleges that defendant's failure to compensate
employees who worked on call shifts at their regular rate of
pay also violates New York Labor Law §§ 190, 191,
and 633(1). Id.
plaintiff contends that defendants “willingly failed to
furnish Coons and FLSA Plaintiffs on each payday with
accurate wage statements containing the criteria required,
” which violates New York Labor Law § 195(3).
Compl. at 15. Further, plaintiff contends that under New York
Labor Law § 198(1-d), defendant is liable to Coons and
other potential plaintiffs for $100.00 per failure to provide
accurate wage statements. Plaintiff also contends defendant
failed to provide plaintiff and potential plaintiffs with
“a wage notice at the time of hire . . . containing the
accurate criteria enumerated under the NYLL.”
Id. Defendant is liable to plaintiff and potential
plaintiffs for $50.00 “for each work week that the
violations occurred or continued to occur, but not to exceed
a total [of] two thousand five hundred dollars . . . .”
the FLSA, “employers are required to compensate
employees for all of the work performed, including overtime,
in order to remedy ‘labor conditions detrimental to the
maintenance of the minimum standard of living necessary for
the health efficiency, and general well-being of
workers.'” Bowens v. Atlantic Maintenance
Corp., 546 F.Supp.2d 55, 81-82 (E.D.N.Y. 2008) (citing
29 U.S.C. §§ 202(a), 207(a)(1)) (additional
citation omitted). Specifically, the FLSA requires that
employers pay employees one and one-half times their normal
rate of pay for working in excess of forty hours per week. 29
U.S.C. § 207(a)(1). FLSA § 216(b) further provides
an action . . . may be maintained against any employer . . .
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
29 U.S.C. § 216(b).
of a collective action under section 216(b) “is only a
preliminary determination as to which potential plaintiffs
may in fact be similarly situated.” Bowens,
546 F.Supp.2d at 81-82 (citation omitted). In general, courts
within this Circuit apply a two-step test in determining
whether to certify a case as a ...