Monday, September 11, 2017

SDNY Approves FLSA Collective Action For Unpaid Overtime

Garcia v. 34th Street Coffee, ____F. Supp. 2d ____(S.D.N.Y. Aug. 30, 2017), NYLJ Sept. 11, 2017 (registration required), is brought to your attention because the Court does an excellent job of summarizing the standards for a collective action under the FLSA for unpaid Overtime. As the Court stated:

The Second Circuit has endorsed a two-step process for determining whether an action may proceed collectively under Section 216(b). See, e.g., Myers, 624 F.3d at 554. In the first stage of the analysis, a district court must make an initial determination as to whether the named plaintiffs are "similarly situated" to the putative collective members. Id.; see also Gauman v. DL Rest. Dev. LLC, No. 14 Civ. 2587 (RWS), 2015 WL 6526440, at *1 (S.D.N.Y. Oct. 28, 2015) ("The Court is not concerned with weighing the merits of the underlying claims, but rather with determining whether there are others similarly suited who could opt into the lawsuit and become plaintiffs."); Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 644 (S.D.N.Y. 2010) (quoting Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)). If a plaintiff makes a "modest factual showing" that she and the potential opt-in plaintiffs "together were victims of a common policy or plan that violated the law," conditional certification and court-facilitated notice is appropriate. Myers, 624 F.3d at 555 (citation omitted); see also Cunningham, 754 F. Supp. 2d at 644; Lynch, 491 F. Supp. 2d at 368. This initial phase is often termed the "notice stage." Lynch, 491 F. Supp. 2d at 368.
The second stage, after discovery is completed, is where "if it appears that some or all members of a conditionally certified class are not similarly situated," a "defendant may move to challenge certification, at which point a court will conduct a more searching factual inquiry as to whether the class members are truly similarly situated." Viriri v. White Plains Hosp. Med. Ctr., No. 16 Civ. 2348 (KMK), 2017 WL 2473252, at *2 (S.D.N.Y. June 8, 2017) (internal quotation marks omitted) (quoting Jenkins v. TJX Cos., 853 F. Supp. 2d 317, 320-21 (E.D.N.Y. 2012)). At that time, "[i]f the claimants are indeed similarly situated, the collective action proceeds to trial, and if they are not, the class is decertified, the claims of the opt-in plaintiffs are dismissed without prejudice, and the class representative may proceed on his or her own claims." Malloy v. Richard Fleischman & Assocs. Inc., No. 09 Civ. 322 (CM), 2009 WL 1585979, at *2 (S.D.N.Y. June 3, 2009) (citing Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006).

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