Opinion
CV 05-4878 (SJ) (JO).
April 13, 2006
ORDER
Plaintiffs Jozefa Glowacka ("Glowacka") and Teresa Milewska ("Milewska") seek leave, pursuant to 29 U.S.C. § 216(b), to circulate a Notice of Pendency and Consent to Joinder form to other persons similarly situated to themselves. For the reasons set forth below, the application is granted with respect to all persons employed by the defendants within the last six years except for the eight employees individually identified in the complaint filed on January 13, 2006 by the Secretary of Labor (the "Secretary") in a separate lawsuit in this district bearing the caption Chao v. Zablocki Indus., CV 06-0349 (CBA) ("Chao").
I. Background
The plaintiffs filed this action on October 18, 2005 against corporate defendant Zablocki Industries, Inc. ("Zablocki"), a bakery in Brooklyn, and two individuals who own and operate it, defendants Richard and Zofia Zablocki. Citing the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. §§ 201, et seq., as well as relevant provisions of the New York State Labor Law, they seek to recover unpaid minimum wages and overtime compensation on the ground that they both worked as "laborers" for Zablocki for a number of years without receiving all of the regular and overtime wage compensation to which they were legally entitled. See docket entry ("DE") 1 (Complaint) ¶¶ 14-24. The plaintiffs further allege that the defendants similarly failed to provide full compensation to their colleagues at the bakery. Id. ¶¶ 29-30. The defendants deny all of these allegations. DE 8 (Answer).
On March 22, 2006, when the parties' counsel appeared before me for an initial conference, we discussed a number of issues including the plaintiffs' request to circulate a notice of pendency to Zablocki's current and former employees pursuant to 29 U.S.C. § 216(b). Zablocki's counsel objected that such a notice would be improper because the right of other employees to join in this action had been extinguished when the Secretary of Labor filed a separate lawsuit against Zablocki based on similar allegations that the bakery withheld its employees' wages. See Chao, DE 1. Having heard and considered the objection, I rejected it on the merits. In particular, I concluded that any employee not named in the Chao lawsuit would still have the right to join in this action and should be promptly notified of that fact. Accordingly, at the conclusion of that conference I entered the following order:
The parties will promptly send out a notice of pendency pursuant to Section 216(b) of Title 29, United States Code. To the extent the defendants object to providing information about putative class members to the plaintiff for purposes of circulating a notice, they may submit their objections by March 31, 2006. The parties shall also submit by that date any dispute regarding the form of the notice that they have been unable to resolve on their own.
DE 18.
On March 30, 2006, the defendants submitted a letter-brief objecting to the issuance of a Notice of Pendency on the ground that a lawsuit filed by the Secretary against the same defendants in this action on January 12, 2006 terminated the right of all individual employees except those who were already named in the present suit at that time to bring a private suit under the FLSA. DE 20. The letter made no reference either to the fact that I had already heard and rejected counsel's position on the matter at the initial conference or to the standard for reconsideration under Local Civil Rule 6.3. On March 31, 2006, the plaintiffs responded with a letter arguing that the Secretary's complaint had no effect on the right of any employee to join their suit. The plaintiffs also submitted their proposed Notice of Pendency form in English and Polish. DE 22. The defendants have voiced no timely objection to the form or content of the plaintiffs' proposed notice in either language, nor have they raised any timely objection to "providing information about putative class members to the plaintiff for purposes of circulating a notice" as they were given an opportunity to do in my order of March 22, 2006. DE 18. Accordingly, the only issue now before me is whether I should reconsider my previous order permitting circulation of a notice of pendency.
II. Discussion
A. The Applicable Legal Standard
As numerous decisions have explained, the standard of review applicable to a motion for reconsideration is a "strict" one. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Reconsideration is discretionary, the relevant factor for today's purposes being the need to correct a clear error or prevent manifest injustice. See Virgin Atlantic Airways Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). Reconsideration should be granted only where the moving party demonstrates that the Court has overlooked or misapprehended factual matters or controlling decisions that were presented to it on the underlying motion. See Local Rule 6.3; Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). This standard is narrowly construed so as to "dissuade repetitive arguments on issues that have already been considered fully by the court." Caleb Co. v. E.I. DuPont DeNemours Co., 624 F. Supp. 747, 748 (S.D.N.Y. 1985). The [movant] may not "advance new facts, issues or arguments not previously presented to the Court." [footnote omitted] Morse/Diesel, Inc. v. Fidelity Deposit Co. of Maryland, 768 F.Supp. 115, 116 (S.D.N.Y. 1991).Rocchigiani v. World Boxing Council, Inc., 139 F. Supp.2d 440, 441-42 (S.D.N.Y. 2001) (quoted in Almonte v. City of Long Beach, 2005 WL 1971014, *1-*2 (E.D.N.Y.)); see also Carione v. United States, 368 F. Supp.2d 196, 198 (E.D.N.Y. 2005); In re Application of the United States, 396 F. Supp.2d 294, 301 (E.D.N.Y. 2005) (same).
Zablocki neither acknowledges nor attempts to satisfy this standard. Indeed, the defendants do not even acknowledge that I have already considered the instant issue and decided it. Nevertheless, given the informal setting in which the parties previously raised the issue and the fact that counsel had not previously cited the specific cases on which it now seeks to rely, I will entertain Zablocki's arguments as if they were properly before me and not procedurally barred. Even viewed in that light, Zablocki's arguments are unavailing for the reasons explained below.
B. A Notice Of Pendency Is Appropriate On The Merits
The FLSA mandates that covered employees be compensated for all work performed. Reich v. N.Y. City Transit Auth., 45 F.3d 646, 648-649 (2d Cir. 1995) (citing Tennessee Coal, Iron R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602 (1944)). In particular, it requires that employees be paid at or above the minimum statutory hourly wage and at a rate of one and one-half times their normal wages for work performed in excess of forty hours per week. 29 U.S.C. §§ 206(a), 207(a)(1). That requirement can be satisfied in a variety of ways, including by paying a worker a premium for extra hours on certain days (or for weekend work) and then crediting that sum against the employee's overtime compensation, see id., § 207(h)(2); Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 914 n. 19 (9th Cir. 2004); or by paying a set salary to employees whose hours fluctuate, thereby providing the employees with financial stability, provided the arrangement meets certain standards. See Walling v. A.H. Belo Corp., 316 U.S. 624, 635 (1942); Donovan v. Tierra Vista, Inc., 796 F.2d 1259, 1260 (10th Cir. 1986) (citing 29 U.S.C. § 207(f) and describing requirements for a valid Belo plan).
The FLSA explicitly creates two distinct mechanisms for vindicating the rights it confers on wage earners: a private lawsuit and a public lawsuit. An individual employee who asserts that his employer has violated the FLSA's minimum wage or overtime provisions may bring a lawsuit "for and in behalf of himself. . . ." 29 U.S.C. § 216(b). Such a private action may also be pursued on a collective basis: the statute goes on to provide that the individual plaintiff may also seek relief "in behalf of . . . other employees similarly situated." Id. The resolution of such a collective private action is binding on the named plaintiff and on any other individual employee who opts in to it by affirmatively consenting to join it as a plaintiff. See id. ("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."). Such a collective action, however, is not the same as a class action under Federal Rule of Civil Procedure 23, in that the rights of passive class members who take no action are not affected by the outcome. See Patton v. Thomson Corp., 364 F. Supp.2d 263, 267 (E.D.N.Y. 2005).
Alternatively, the Secretary of Labor can sue the employer to recover "the amount of unpaid minimum wages or overtime compensation and an equal amount as liquidated damages" or to restrain further delay in the payment of unpaid minimum wages or overtime compensation. 29 U.S.C. §§ 216(c), 217. Individual employees do not have to consent to such a suit. See Donovan v. University of Texas at El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981) (discussing 1961 amendments to the FLSA that eliminated the requirement that government suits could only be brought upon the written request of an aggrieved employee). To the contrary, in order to avoid inconsistent judgments and streamline litigation, an individual employee's right to bring an action pursuant to § 216(b) terminates once that employee is named in a complaint filed by the Secretary pursuant to § 216(c) or § 217. See 29 U.S.C. §§ 216(b)-(c); Donovan, 643 F.2d at 1207-1208 (citing S. Rep. No. 87-145 (1961)).
The defendants do not take the position that the Secretary's lawsuit has any preclusive effect on the private suit that the plaintiffs in this case filed first. Such an argument would in any event be precluded by the pertinent case law. See Donovan, 643 F.2d at 1207-1208. Instead, the pendency of both a public and a private lawsuit raises the question whether the individual employees not yet named in either action still enjoy the right under § 216(b) to join the private lawsuit, or whether instead the advent of the public lawsuit extinguishes their right to seek private relief. The defendants predicate their opposition to a notice of pendency on the latter position. The plaintiffs assert that the former position is correct because their private action was filed before the Secretary's complaint. Neither side is entirely correct. As explained below, the Secretary's suit did terminate the right of those employees named in the complaint therein to join the instant action, but had no such effect on the rights of other employees, for reasons having nothing to do with the respective timing of the two lawsuits.
As explained above, an individual employee must affirmatively choose to join a colleague's private action under the FLSA in order to reap the benefits of that litigation. Other than Glowacka and Milewska, however, no other employees of Zablocki have yet taken any such affirmative step to join this suit, and none had done so as of January 13, 2006 when the Secretary initiated the Chao action. Accordingly, to the extent that the plaintiffs base their argument on the assumption that their own actions in advance of the Secretary's filing served to inoculate them against the possibility that a public lawsuit would extinguish their rights to seek private relief, they are mistaken.
The defendants are likewise mistaken in arguing that the Secretary's action extinguished the rights of all Zablocki employees other than Glowacka and Milewska. The Chao complaint makes explicit reference only to eight employees for whom the Secretary seeks relief pursuant to § 216(c) and § 217. See Chao, DE 1 Attachment. While the complaint acknowledges that there may be other aggrieved employees "presently unknown to plaintiff for the period covered by this Complaint," the Chao action can have no effect on those unnamed employees' right to independently bring suit under § 216(b) or to join the instant lawsuit until they are actually named. The FLSA explicitly provides that an employee's right to sue under § 216(b) "terminate[s] upon the filing of a complaint by the Secretary in an action . . . [seeking] recovery . . . of unpaid minimum wages or unpaid overtime compensation . . . owing to such employee." 29 U.S.C. § 216(c) (emphasis added). As a result, the Secretary's action terminated the private right of action only as to those eight employees her complaint actually named, and had no effect on any other employee's rights. If there are additional aggrieved current or former employees of the defendants similarly situated to the plaintiffs in this action, they may properly opt in to the present litigation provided they act in a timely fashion.
Having determined that any employee not named thus far in either of the pending actions against Zablocki has the right to join this suit, I further conclude that it is appropriate to circulate a notice of pendency. Under the FLSA, courts have the discretion, but not the obligation, to authorize notifications to potential plaintiffs of the pendency of a § 216(b) action, and to direct employer defendants to disclose the names and addresses of similarly situated potential plaintiffs. Braunstein v. Eastern Photographic Lab. Inc., 600 F.2d 335, 336 (2d Cir. 1978); Patton, 364 F. Supp.2d at 266. The threshold issue in deciding whether to authorize such "opt-in" notice is to determine whether other employees to whom such notice might be sent are "similarly situated." Id. at 266-67 (citing Hoffman v. Sbarro, 982 F. Supp. 249, 261 (S.D.N.Y. 1997)).
Although neither the FLSA nor its implementing regulations define the term "similarly situated," plaintiffs need only make "a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Id. (citations omitted). This burden "is not a stringent one, and the Court need only reach a preliminary determination that potential plaintiffs are `similarly situated.'" Id. This burden is significantly less exacting than the matters that must be demonstrated to sustain Rule 23 class certification, see id. (citations omitted), and in any event the defendants here do not appear to contest that if the other employees' private right of action survives the advent of the Chao lawsuit, they should be denied a timely notice of pendency.
The timeliness issue is of particular concern. The plaintiffs' claims under the FLSA are subject to a two-year statute of limitations, or three years if a violation is willful. 29 U.S.C. § 255(a). The limitations period is tolled with respect to potential plaintiffs' claims only if they opt in to the case. See 29 U.S.C. § 256; Patton, 364 F. Supp.2d at 268 n. 2 (citing Hoffman, 982 F. Supp. at 260 (citing Soler v. G U, Inc., 86 F.R.D. 524, 528-529 (S.D.N.Y. 1980))). A six-year statute of limitations applies to the plaintiffs' claims under New York Labor Law. N.Y. Lab. Law § 198(3). Accordingly, I will authorize notification of potential plaintiffs whose claims might have arisen within the last six years. See Realite v. Ark Restaurants Corp., 7 F. Supp.2d 303, 308 n. 4 (S.D.N.Y. 1998).
The plaintiffs have submitted a proposed Notice of Pendency and Consent to Joinder form. DE 22. The Plaintiffs submitted this form in both English and Polish, and have requested that it be circulated in both languages. Id. The Defendants have not objected to the form or content of the plaintiffs' proposed Notice. I find the Notice to be reasonable.
III. Conclusion
For the reasons stated above, the plaintiffs' application for authorization to circulate a Notice of Pendency and Consent to Joinder form to other persons similarly situated to themselves pursuant to 29 U.S.C. § 216(b) is granted with respect to all of the defendants' current employees as well as former employees who worked for the defendants on or after April 13, 2000 except for the eight individuals named in the Chao complaint. The defendants are directed to disclose the names and last known contact information for all such current and former employees, and notice may be circulated to all such individuals. The plaintiffs' proposed Notice of Pendency and Consent to Joinder form is approved, and it is ordered that this form shall be circulated in English and Polish.