Opinion
02 Civ. 0787 (HB)
June 18, 2002
OPINION ORDER
Plaintiff, Michael Harrington ("Harrington"), on behalf of himself and others similarly situated, brought this collective action against his employers alleging, among other things, that he was denied overtime compensation in violation of the Fair Labor Standards Act ("FLSA"), 28 U.S.C. § 201 et seq. On May 17, 2002, I granted plaintiff leave to send opt-in notice to potential plaintiffs under 29 U.S.C. § 216(b). The parties dispute the form and scope of notice and submitted competing forms to the court. For the following reasons, the plaintiff's proposed form is adopted in accordance with any modifications noted below.
I. DISCUSSION
The plaintiff is an assistant director of admissions ("ADA") for the defendants, Education Management Corp., the New York Restaurant School and the Art Institutes, (collectively referred to as the "defendants"), a nationwide group of schools that provide degrees in design, fashion, culinary arts and media arts. The plaintiff claims that he and other ADAs were regularly required to work over forty hours per week and denied overtime compensation as guaranteed under the ELSA. Simply put, the plaintiff alleges that the defendants maintained a policy of not paying overtime to ADAs by way of improperly designating them as "exempt" under the FLSA's overtime requirements.
The defendants assert several objections to the plaintiffs proposed opt-in notice. I address each of the defendants objections below, bearing in mind, however, the general proposition that opt-in notice at this early stage of the litigation — at the outset of discovery — is to be construed broadly in furtherance of the remedial purposes of the ELSA. See Jackson v. New York Telephone Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995) (Koeltl, J.) (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 1709 (1989); see also Rodolico v. Unisys Corp. 199 F.R.D. 468, 480 (E.D.N.Y. 2001) (Spatt, J.) ("Generally, at the notice stage, courts require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan."); Heagney v. European American Bank, 122 F.R.D 125, 130-21 (E.D.N.Y. 1988) (Dear, J.) (finding no justification for restraining plaintiffs' counsel from writing letters to potential plaintiffs); Frank v. Capital Cities Communications, Inc., 88 F.R.D. 674, 676 (S.D.N.Y. 1981) (Haight, J.) ("[E]xperiences of other employees may well be probative of the existence vet non of a discriminatory policy . . ."). The defendants will have ample opportunity to challenge the scope of the collective action when this litigation matures. See Rodolico, 199 F.R.D. at 480 (noting that "after discovery has been completed, and the case is ready for trial, the court will engage in the second stage of determining whether the plaintiffs are similarly situated for the purposes of maintaining the collective action"); Jackson, 163 F.R.D. at 431 ("The inquiry at the inception of the lawsuit is less stringent than the ultimate determination that the class is properly constituted.").
While the plaintiff here seeks to send opt-in notice to all persons employed as ADAs or (hose with "similar titles," the defendants argue that the notice should be limited to only those employees who have held the specific title of ADA. On this point, I adopt the plaintiff's view in favor of the more expansive scope of notice. See e.g., Krueger v. New York Telephone Company, 1993 WL 276058, *2 (S.D.N.Y. July 21, 1993) (McKenna, J.) ("Even if plaintiffs' claims turn out to be meritless or, in fact, all the plaintiffs turn out not similarly situated, notification at this stage, rather than after further discovery, may enable more efficient resolution of the underlying issues.").
For similar reasons, I also agree with the plaintiff with regard to defendants' second objection — that similarly situated employees for defendant Education Management Corp. should be excluded from receiving notice — and find that notice will extend to individuals "in any school or program operated by Education Management Corp.," in addition to those employed by New York Restaurant School and the Art Institutes.
The defendants seek to limit the notice period to include only potential plaintiffs who were employed within the two-year statute of limitations under the FLSA. The FLSA provides a two-year statute of limitations for claims brought under the statute, but allows an additional year for willful violations. 29 U.S.C. § 255(a). The plaintiff seeks to extend notice to include potential plaintiffs under the three-year limitations period. Additionally, plaintiff seeks to extend the notice to six years for employees in the defendants' New York facilities in accordance with New York Labor Law § 198(3) (providing a six-year statute of limitations for wage claims). Again, I agree with the plaintiff. It would be premature at this juncture to reach a determination as to whether the defendants violations, if any, have been willful and I see no reason to limit discovery on this issue. Therefore, the Court authorizes notice to go back six years with respect to those similarly situated employees who worked in the defendants' New York facilities, while notice for all other employees outside the state to extend three years. See Kumar Realite v. Ark Restaurants Corp., 7 F. Supp.2d 303, 308 (S.D.N.Y. 1998) (Sotomayor, J.) (authorizing the plaintiffs in collective action to provide notice to employees who worked at defendants' New York restaurants within the last six years of the pendency of the lawsuit as "[i]t will then be up to those individuals to decide whether they wish to opt-in to this action").
With respect to the defendants' request for language that describes a potential cause of action as arising for plaintiffs who "were not paid overtime pay as required by law," I find that the plaintiff's proposed language in ¶ 2 is nearly identical and suffices.
Finally, I find that the notice, as the defendants' request, will include the defendants' proposed "Consent to Join" form in lieu of ¶ 7 of the plaintiff's proposed notice.
II. CONCLUSION
For the foregoing reasons, the plaintiff's proposed opt-in notice is adopted in accordance with the above modifications. As agreed to by the parties at the May 2, 2002 pretrial conference, the defendants will produce no later than thirty days from this court's decision the last known addresses of the prospective members, and upon receipt the plaintiff will have thirty days to send notice and opt-in forms, and the opt-in period will run for a f eight weeks therefrom.