denying certification where the plaintiffs offered only conclusory allegations that other individuals were similarly misclassified as independent contractorsSummary of this case from Viriri v. White Plains Hospital Medical Center
No. 02 Civ. 2222 (CBM)
November 6, 2003
MEMORANDUM OPINION AND ORDER
This is an action brought pursuant to the Fair Labor Standards Act ("FLSA") and New York state law, by former and present employees of defendant corporations. Plaintiffs allege, inter alia, that they and other persons who worked for defendants as "guides" on About.com web pages were uniformly paid less than the minimum wage and denied overtime pay for work which they performed in excess of 40 hours per week, in violation of 29 U.S.C. § 206 and 29 U.S.C. § 207. By the instant motion, they seek permission to circulate to other former and present employees of defendant corporations a Notice of Pendency and Consent to Join similarly situated persons pursuant to Section 216(b) of the FLSA. Defendants oppose the motion. The motion is denied.
Section 216(b) of the FLSA provides in pertinent part:
An action to recover . . . liability . . . maybe maintained against any employer . . . by anyone or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any 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. 29 U.S.C. § 216(b).
The Second Circuit has held that a district court has the power to order that notice be given to other potential members of a plaintiff class under this "opt in" provision. See Braunstein v. Eastern Photographic Labs, Inc., 600 F.2d 335 (2d Cir. 1978). The strict requirements of Rule 23 of the Federal Rules of Civil Procedure do not apply to FLSA "collective actions," and thus no showing of numerosity, typicality, commonality and representativeness need be made. Rather, plaintiffs must meet only one threshold requirement: they must demonstrate that potential class members are "similarly situated."See Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997). Neither the FLSA nor its implementing regulations define the term "similarly situated." Id. However, plaintiffs can meet the burden of demonstrating that they are similarly situated by "making 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.
Plaintiffs have failed to meet their burden. While the factual showing that they must make at this stage is "modest," Id., it must be "sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law."Id. Central to plaintiffs' claim are the allegations that defendants were "employers" under the terms of the FLSA (rather than "independent contractors," as stated on the face of the contracts submitted to the court), and that in violation of the FLSA they denied plaintiffs a minimum wage and overtime pay. While plaintiffs have provided factual assertions in support of the claim that they were in an employee-employer relationship with defendants, and that they were deprived of a minimum wage and overtime rates, they have failed to make a sufficient showing that the same was true for other potential plaintiffs.
With regard to the assertion that defendants acted as employers to plaintiffs and potential plaintiffs, plaintiffs allege that defendants have the "company-wide" policy of "[m]isclassifying guides as independent contractors exempt from the overtime requirements of the FLSA," but they fail to support this legal conclusion with a factual showing that extends beyond their own circumstances. With regard to the alleged failure to provide a minimum wage or overtime pay, plaintiffs' documentation is similarly limited to their own compensation. While the contracts submitted to the court, and their attached compensation schedules, do appear to be substantially similar, a demonstration of the similarity of circumstances of the existing plaintiffs is, of course, insufficient. Even if the assertion, found in each of plaintiffs' affidavits submitted to the court, that "All guides worked under the same contracts," were true, this would not constitute a showing that defendants' compensation structure violated the law. The compensation schedules may lack a provision for overtime rates or a guaranteed minimum wage, but it is only when this evidence is combined with evidence such as that provided in connection with the existing plaintiffs, of hourly rates below minimum wage, or overtime hours without overtime pay, that the necessary showing becomes possible. Plaintiffs' attempts to broaden their allegations beyond the existing plaintiffs are insufficiently specific to make such a showing. See, e.g., Lahey Aff. § 20 ("For many guides, and perhaps most guides, myself included, the monthly compensation that was received was often less than the minimum wage of $5.15 an hour."); Pls.' Mem. Supp. Mot. at 10 (alleging that guides were required "to complete certain work quotas and to undertake numerous tasks, that often required working in excess of 40 hours per week, without accounting for this time as overtime pay.").
Based on the record presently before the court, plaintiffs have failed to demonstrate that the putative members of the collective action are similarly situated. Accordingly, plaintiffs' motion is denied without prejudice. Should further discovery disclose additional facts to support plaintiffs' application, they may renew it upon a proper showing.