OPINION & ORDER
KATHERINE B. FORREST, District Judge.
Roberto Robreno ("Robreno") and Earon Brathwaite ("Brathwaite"), on behalf of themselves and others similarly situated, originally commenced this action against defendants Eataly America, Inc. and associated parties (collectively, "Eataly" or "defendants") on November 29, 2017. (
Currently pending before the Court is plaintiffs' motion for conditional certification of a collective action pursuant to 29 U.S.C. § 216(b). (ECF No. 54.) Specifically, plaintiffs seek conditional certification of a class comprising all nonexempt employees employed by defendants within six years of the initial Complaint being filed. (
Defendants oppose certification, arguing that plaintiffs have failed to sufficiently demonstrate that putative class members were subject to a companywide policy or practice that violated the law, and therefore plaintiffs are not "similarly situated" to the potential opt-in plaintiffs under § 216(b). (
I. LEGAL PRINCIPLES
Section 216(b) of the FLSA authorizes employees to maintain collective actions where they are "similarly situated" with respect to the alleged violations of the FLSA. See 29 U.S.C. § 216(b);
In the Second Circuit, certification of a "collective action" is a two-step process.
At the second step, defendants have the opportunity to move for decertification if, after additional discovery, the record shows that the opt-in plaintiffs are not, in fact, similarly situated to the named plaintiffs.
At this stage of the litigation, plaintiffs have made a sufficient showing to warrant conditional certification of a collective action under § 216(b), but not of the breadth requested. Accordingly, and for the reasons stated below, the Court hereby conditionally certifies a § 216(b) collective comprised of non-exempt employees supervised by certain managers/supervisors (as specified below) during the duration of the corresponding plaintiffs' employment.
As an initial matter, defendants have stipulated that between August 2016 and the present, they operated as a "single integrated enterprise" for purposes of the FLSA and NYLL. (ECF No. 78.) Accordingly, the fact that the corporate defendants in this action are technically different entities with different retail locations does not impact the pending § 216(b) motion (though such facts, if proven, could be relevant for purposes of decertification or on summary judgment).
Plaintiffs seek certification of a collective action comprising every non-exempt Eataly employee, working at every location, for the past six years. As previously noted, however, the FLSA has a maximum statute of limitations of three years. Thus, the request for certification of class extending six years is too long. In addition, plaintiffs have not made even a "modest factual showing" that all nonexempt Eataly employees were victims of a company-wide policy or plan that violated the FLSA and NYLL.
Such allegations are sufficient to justify a narrow § 216(b) collective action comprising non-exempt employees supervised and/or managed by the named individuals during the duration of the corresponding plaintiffs' employment. But there is no basis in the record—besides plaintiffs' vague and conclusory assertions— that other non-managerial employees at Eataly were subject to the same treatment, or that the specific managers/supervisors acted pursuant to a company-wide custom or policy. Thus, there is no basis for this Court to certify a broader class. As courts in this Circuit have repeatedly held, vague allegations based on uncorroborated anecdotal hearsay are too tenuous to support the existence of a common policy across an entire organization or employer.
As defendants correctly note, the only thread that ties plaintiffs' allegations together is that their respective managers and/or supervisors engaged in certain conduct that violated the FLSA and NYLL. Therefore, the only employees who would be "similarly situated" to the current plaintiffs are those who were managed and/or supervised by the named individuals—
Plaintiffs' Proposed Notice and Consent Form
In conjunction with their motion for conditional certification, plaintiffs have also submitted a proposed notice and consent form to be sent to potential opt-in plaintiffs. (
Defendants take issue with various portions of plaintiffs' proposed notice, arguing that it is not "neutral" and must be modified. (
Other Requested Relief
In addition to conditional certification and approval of the proposed notice, plaintiffs also seek production of a list of all covered employees who were employed by defendants in the past six years including names, social security numbers, titles, compensation rates, last known mailing addresses, email addresses, telephone numbers, and dates of employment. (See Pls.' Mem at 14-15.) Defendants argue that plaintiffs' request is overbroad, and that in any event plaintiffs' request for social security numbers, compensation rates, email addresses, and telephone numbers should be denied. (See Defs.' Opp'n at 25.) The Court agrees that the requested discovery is overbroad and overly intrusive. Accordingly, the Court hereby ORDERS that defendants need only produce a list of employees who were employed by the specific supervisors identified in this Opinion & Order during the relevant time periods. That list need only contain each employee's: (1) name; (2) job position; (3) dates of employment; and (4) last known contact (e-mail and/or mailing address).
Finally, plaintiffs have requested equitable tolling of the FLSA statute of limitations until they are able to send notice to potential opt-in plaintiffs. (See Pls.' Mem. at 16.) That request is DENIED. Equitable tolling is only warranted in circumstances where "a [party] has been prevented in some extraordinary way from exercising his rights."
For the reasons stated above, plaintiffs' motion for conditional certification and court-authorized notice pursuant to § 216(b) is GRANTED in part and DENIED in part. The Court hereby conditionally certifies a collective action of all present and former Eataly employees who: (a) worked for the same supervisor(s) as Robreno (Ogy (a/k/a Agustin) and/or Marcos) during the period from June 2010 until June 12, 2017; (b) worked for the same supervisor(s) as Brathwaite (Noel and/or Fernando) during the period from May 2016 until September 2016; or (c) worked for the same supervisor(s) as Barcenas (Conor and/or Eleonora) during the period from April 15, 2017 until June 27, 2017.
The parties are directed to meet and confer regarding changes to plaintiffs' proposed notice and to submit a revised version to the Court for approval not later than
The Clerk of Court is directed to close the open motion at ECF No. 54.