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Coons v. Family Counseling Center of Fulton County, Inc.

United States District Court, N.D. New York

July 27, 2018

MEAGAN COONS, Plaintiff,
v.
FAMILY COUNSELING CENTER OF FULTON COUNTY, INC., Defendant.

          Tully 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 defendant.

          REPORT-RECOMMENDATION & ORDER

          CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE.

         Presently 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.

         I. Background

         Plaintiff 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).” Id.

         Plaintiff 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.

         Plaintiff 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.

         Additionally, 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 . . . .” Id.

         II. Legal Standard

         Under 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 that:

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 brought.

29 U.S.C. § 216(b).

         Certification 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 ...


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