Opinion
10-CV-5323 (ENV).
May 5, 2011
ORDER
Plaintiffs, on behalf of themselves and others similarly situated, bring this action, inter alia, to recover unpaid wages pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. The court has reviewed plaintiffs' motion for certification of a collection action pursuant to 29 U.S.C. § 216(b) and for approval of the notice to be sent to potential opt-in plaintiffs. Docket Entries 10-14. Defendants do not oppose the motion. The court, however, has several concerns with the proposed notice, as discussed below. Accordingly, the parties shall be prepared to address these issues at the conference previously scheduled for 4:00 p.m. on May 18, 2011.
First, plaintiffs define the class as composed of those "who worked as plumbers or in other similar non-managerial, non-administrative positions." It is not clear to me, and may not be clear to those who receive the notice, which other employees are being referred to and might properly be included in the collective action under this definition. For example, individuals might properly be included if they performed similar work as the plumbers but simply had a different title, such as "water meter installer." If, however, defendants employ other laborers with significantly different job tasks, it would seem that they should not be included in the class.
Second, plaintiffs seek to include in the collective action individuals employed by defendants since November 18, 2004. Although the statute of limitations for a FLSA action is generally two years, or three years for willful violations, see 29 U.S.C. § 255(a), plaintiffs seek to extend the period to six years, from the date the complaint was filed, based on defendants' alleged failure to post a FLSA notice, as regulations require. See 29 C.F.R. § 516.4; Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 387 (E.D.N.Y. 2010) (recognizing that a court may equitably toll the limitations period until an employee actually receives notice of his FLSA rights where an employer fails to post such notice). But see Ramirez v. Rifkin, 568 F. Supp. 2d 262, 269-70 (E.D.N.Y. 2008) (noting a split among courts about whether the failure to post a notice is sufficient to warrant equitable tolling, an issue that has not yet been addressed by the Second Circuit). Although defendants have presented no opposition, I am not prepared, absent a motion — particularly at this early stage of the litigation — to equitably toll the limitations period and certify a collective action with the extended period. See Lujan v. Cabana Mgmt., Inc., 2011 WL 317984, at *9 (E.D.N.Y. Feb. 1, 2011) (noting that courts within the Eastern District of New York "are split" as to whether potential plaintiffs whose claims may be barred unless equitably tolled by the court should receive notice at the certification stage of litigation); Summa, 715 F. Supp. 2d at 388 (rejecting plaintiffs' proposed six-year period and imposing a three-year period for notice, but noting that the time period may be subject to future modification "should further discovery prove that FLSA notices were not posted"). If plaintiffs wish to pursue their tolling argument, they may bring an appropriate motion, either now or after discovery, demonstrating that equitable tolling is warranted. Accordingly, unless plaintiffs seek to defer sending out notices until after the tolling question has been litigated, the notice should be directed to employees who worked for defendants from March 14, 2008 (three years from the date plaintiffs filed their certification motion) to present.
Next, plaintiffs' proposed 216(b) notice says nothing about the putative class action for New York Labor Law violations, which are also part of plaintiffs' claims in this lawsuit. Although no class is being certified at this point, it seems reasonable to at least alert potential opt-in plaintiffs to the fact that this lawsuit has additional claims.
The notice also does not identify any claim for unpaid non-overtime wages. Plaintiffs' complaint, however, includes such a claim. Am. Compl. ¶¶ 1, 63, 71. Thus, plaintiffs shall be prepared to state whether they are abandoning any claims for unpaid non-overtime wages for the putative opt-in plaintiffs and, if not, why the notice should not be revised to reflect the existence of those claims.
Finally, the notice and consent form indicate that by joining the lawsuit, an opt-in member consents to have the named plaintiffs act as his agent and representative. Once an individual consents to opt-in, however, the named plaintiffs no longer act on his behalf; rather, the individual himself becomes a named plaintiff to the action, and is subject to party discovery. See 29 U.S.C. § 216(b) ("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.") (emphasis added); Whalen v. U.S., 85 Fed. Cl. 380, 384 n. 2 (Fed. Cl. 2009) (suggesting that "the better practice is to amend a complaint to name all similarly situated employees who file consents to join an action brought under the FLSA"); Sexton v. Franklin First Fin., Ltd., 2009 WL 1706535, at *12 (E.D.N.Y. June 16, 2009) (requiring a 216(b) notice to include "language stating that opt-in plaintiffs may be called upon to testify, appear for depositions, and respond to discovery requests").
Attached to this Order is a 216(b) notice I recently approved that addresses some of the issues described above. Plaintiffs may submit a proposed notice that addresses the concerns set forth above no later than May 16, 2011. Plaintiffs' motion to cancel the conference on May 18th is denied. The conference will proceed for the purpose of addressing the questions raised above with respect to the notice.
SO ORDERED.
NOTICE OF LAWSUIT
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Mejia et al. v. East Manor USA Inc. et al. Docket No.: 10-cv-4313. To: All individuals who performed restaurant related jobs at East Manor Buffet in Flushing, New York and/or East Manor Buffet in Elmhurst, New York from 2004 through the present. This does not include supervisors, officers, executive, managerial, or administrative personnel.
• This is a court-authorized notice that a collective action lawsuit may affect your legal rights. This is not a solicitation from a lawyer.
• Plaintiffs Juan Mejia and Emanuel Peralta ("Plaintiffs") are former employees of East Manor who have brought this lawsuit on behalf of themselves and all other current and former employees to seek payment of allegedly unpaid minimum wages and overtime wages. You may be owed minimum wages and/or overtime wages if you worked for East Manor Buffet in Flushing, New York and/or East Manor Buffet in Elmhurst, New York at any time from 2004 through the present.
• Defendants vigorously deny any wrongdoing and/or liability and deny that any employee was underpaid for his or her work at any time.
• No determination has been made that you are owed any minimum wages or overtime wages, and the Court is not endorsing the merits of this lawsuit or advising you to participate in this lawsuit. You are under no obligation to respond to this notice.
• You have a right to participate in this action even if you are an undocumented alien or if you were paid in cash
1. Why did I get this notice?
You are getting this notice because East Manor's records show that you worked at East Manor during the relevant time period.
2. What is this lawsuit about?
This lawsuit is about:
(1) Whether restaurant employees were paid the minimum wage for every hour that they worked; and
(2) Whether restaurant employees were paid overtime wages at time and one-half their regular hourly wage for every hour they worked over 40 hours in any week.
These claims were brought under the Federal Fair Labor Standards Act ("FLSA"), as well as under New York State law.
FEDERAL LAW CLAIMS: If you worked for East Manor between April ___, 2008 to the present, you may be entitled to certain protection under the FLSA if you were not paid the minimum wage for every hour that you worked. You may also be entitled to certain protection for all work in excess of 40 hours each week if you received less than one and one-half times (1.5x) your regular hourly wage rate.
NEW YORK LAW CLAIMS: A class has not yet been certified for claims arising under New York law. Under New York law, you may have claims for improperly withheld minimum wages and overtime compensation (work performed over 40 hours) that date back to 2005. You will be advised of any additional rights that you may have to recover under New York law in the event that a class is certified.
To join this lawsuit at this time, you must have worked at East Manor between April ___, 2008 to the present.
3. How do I join this lawsuit?
If you would like to join this lawsuit, you must sign and promptly return the enclosed "Consent to Join Lawsuit" Form by [90 days from mailing date].
LLOYD AMBINDER, ESQ.
VIRGINIA AMBINDER, LLP
111 BROADWAY, SUITE 1403
NEW YORK, N.Y. 10006
RE: EAST MANOR
You can also fax the Consent to Join Lawsuit form to 212-943-9082, or email it to eastmanor@vandallp.com
If you do not sign and return the Consent to Join Form by [90 days from mailing date] you may not be able to participate in this lawsuit.
4. What happens if I join the lawsuit?
5. What happens if I do nothing?
If you choose not to join this lawsuit, you will not be entitled to share in any amounts recovered by the Plaintiffs if they are successful in obtaining an award from a trial or settlement of this lawsuit. You will also not be affected by any ruling, judgment or settlement rendered in this lawsuit. You have the right to retain your own counsel to represent you and to file an independent lawsuit. However, if you hire your own attorney, you may be responsible for paying that attorney. You should also be aware that your federal wage and hour claims are limited by either a two or three year statute of limitations. Delay in joining this action or proceeding separately may result in some or all of your potential claims expiring as a matter of law.
6. What are the Plaintiffs seeking?
Plaintiffs are seeking to recover unpaid minimum wages and overtime wages. Plaintiffs are also seeking liquidated damages, attorneys fees and costs.
7. Will I have a lawyer in this case?
If you choose to join this lawsuit, and you do not appoint your own attorney, you will be represented by Lloyd Ambinder and other lawyers at Virginia Ambinder, LLP located at 111 Broadway, Suite 1403, New York, New York, 10006; telephone (212) 943-9080, facsimile number (212) 943-9082; www.vandallp.com.
If you are represented by Virginia Ambinder, LLP, any attorney fees will either be paid out of any recovery that is obtained. If there is a recovery, the fees may be part of a settlement obtained or money judgment entered in favor of Plaintiffs, or may be ordered by the court to be paid by the Defendants, or may be a combination of both. If you are represented by Virginia Ambinder, LLP and Plaintiffs do not recover anything in this lawsuit, you will not have to pay any attorneys' fees.
You may also hire your own attorney to represent you in this lawsuit, however, you may be responsible for paying that attorney.
8. What if East Manor retaliates against me for joining this lawsuit?
It is a violation of state and federal law for East Manor or any of its related entities to fire, discipline, or in any manner discriminate or retaliate against you for taking part in this lawsuit. If you believe that you have been penalized, discriminated against, or disciplined in any way as a result of your receiving this notification, considering whether to join this lawsuit, or actually joining this lawsuit, you may contact Plaintiffs' lawyers or any other lawyers of your choosing.
9. What if I got paid in cash?
You have a right to participate in this action even if you are an undocumented alien or if you were paid in cash.
10. What if I still have questions?
If you have any questions about this lawsuit, or would like further information, you can contact the Plaintiffs' attorney Lloyd Ambinder of Virginia Ambinder, LLP at (212) 943-9080. If you require Spanish translation, please ask for Yeskenia Polanco. If you require Chinese translation, please ask for Judy Wong.
PLEASE DO NOT CONTACT THE CLERK OF THE COURT WITH QUESTIONS INVOLVING THIS LAWSUIT
Dated: March ___, 2008