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Alvarado v. Villas Market Place Inc.

United States District Court, S.D. New York

January 8, 2020

FRANCISCO ALVARADO, on behalf of himself, FLSA collective plaintiffs and the class, Plaintiff,


          Valerie Caproni, United States District Judge.

         Plaintiff Francisco Alvarado has sued his former employer and its owner for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”), N.Y. Lab. Law § 190 et seq. See Compl. (Dkt. 1) ¶¶ 1-2. Plaintiff moves for conditional certification of a collective pursuant to section 216(b) of the FLSA. See Notice of Mot. (Dkt. 30). For the following reasons, Plaintiff's motion is granted in part.


         Plaintiff worked as a porter for Defendant Villas Market Place, Inc. (“Villas Market”) between January 2016 and March 2019. See Compl. ¶ 20; Alvarado Decl. (Dkt. 32) ¶ 1. During that time, Villas Market was owned by Defendant Andreas Zoitas. See Compl. ¶ 7; Zoitas Decl. (Dkt. 36) ¶ 2.

         Plaintiff alleges that, each week, Defendants rounded down the hours Plaintiff worked to the nearest hour and paid wages only on those reduced hours instead of actual hours worked. See Alvarado Decl. ¶ 8. Plaintiff alleges that Defendants' payroll practices resulted in him being undercompensated. See id.; see generally Time Card and Payroll Register (Dkt. 31-2, Ex. B). Additionally, Plaintiff alleges that, on a daily basis, Defendants required Plaintiff to arrive at work 15 minutes before clocking in, and, on Fridays only, required Plaintiff to stay 30 minutes after clocking out, resulting in unpaid work. See Alvarado Decl. ¶ 5. Plaintiff also asserts that, from October 20, 2017, to January 7, 2018, Defendants required Plaintiff to clock out for 30 minutes per workday for a meal break, but Defendants did not give him an actual meal break; instead, he was required to work through the “break.” Id. ¶ 6. On January 8, 2018, that policy, according to Plaintiff, increased to one hour per day. Id. ¶ 7.

         Plaintiff finally asserts that he observed his co-workers being subjected to similar policies, identifying four co-workers in particular with whom he had discussions about those policies. Id. ¶¶ 2-9. Plaintiff moves for conditional certification of a collective action on behalf of “all current and former non-exempt employees” who were employed by Defendants during the six years preceding the date that Plaintiff filed the Complaint. Compl. ¶ 13; see Proposed Order (Dkt. 30, Ex. 1).


         I. Legal Principles

         The FLSA permits employees to maintain an action “for and in behalf of . . . themselves and other employees similarly situated.” 29 U.S.C. § 216(b). In determining whether to certify a collective action, courts in the Second Circuit use a two-step process. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). At the notice stage, plaintiffs must establish that other employees “may be ‘similarly situated'” to them. Id. at 555. To meet this burden, a plaintiff 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.'” Id. (citations omitted).

         While a plaintiff's burden at this stage is modest, “it is not non-existent, ” Fraticelli v. MSG Holdings, L.P., No. 13-CV-6518, 2014 WL 1807105, at *1 (S.D.N.Y. May 7, 2014) (quoting Khan v. Airport Mgmt. Servs., LLC, No. 10-CV-7735, 2011 WL 5597371, at *5 (S.D.N.Y. Nov. 16, 2011)), and generally cannot be satisfied by “unsupported assertions, ” Myers, 624 F.3d at 555. Nonetheless, courts employ a “low standard of proof because the purpose of this first stage is merely to determine whether ‘similarly situated' plaintiffs do in fact exist.” Id. (citation omitted). At this first stage, therefore, courts do not examine “whether there has been an actual violation of law.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (citing Krueger v. N.Y. Tel. Co., No. 93-CV-178, 1993 WL 276058, at *2 (S.D.N.Y. July 21, 1993)).

         At the second stage, when the court has a more developed record, the named plaintiffs must prove that “the plaintiffs who have opted in are in fact ‘similarly situated' to the named plaintiffs” and that they were all subject to an illegal wage practice. She Jian Guo v. Tommy's Sushi Inc., No. 14-CV-3964, 2014 WL 5314822, at *2 (S.D.N.Y. Oct. 16, 2014) (quoting Myers, 624 F.3d at 555). The action may be “‘de-certified' if the record reveals that [the opt-in plaintiffs] are not [similarly situated], and the opt-in plaintiffs' claims may be dismissed without prejudice.” Myers, 624 F.3d at 555.[1]

         II. Application

         A. The Motion to Certify a Collective Is Granted in Part

         Plaintiff offers sufficient evidence to conditionally certify a collective of porters, cooks, and stock clerks who worked at Villas Market. Plaintiff has not presented evidence that other types of employees (such cashiers, cleaners, and baggers) ...

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