# Rosa v. Dhillon

> District Court, E.D. New York · December 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10305373

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305373

## How later opinions describe it (automated extraction)

- reasoning that “common ownership” supports the same inference

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------- X
OTHIEL ROSA, JONAH SILVA, and JESUS :
SANDOZ,on behalf of themselves and others :
similarly situated, : MEMORANDUM
: DECISION AND ORDER
Plaintiffs, :
: 20-cv-3672(BMC)
-against- :
:
VEERU DHILLON; JAMAICA FUEL, INC.; :
JOHN DOE No. 1; and JOHN DOE No. 2, :
:
Defendants. :
------------------------------------------------------------- X
COGAN, District Judge.
Plaintiffs Othiel Rosa, Jonah Silva, and Jesus Sandoz have brought this action under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201et seq., and the New York Labor Law
(“NYLL”),§650et seq.,against Veeru Dhillon and Jamaica Fuel, Inc., their former employers.
Plaintiffs worked as attendants at the gas station located at 292 Ashburton Avenue in Yonkers,
New York (“the Ashburton Avenue station”). Theyallege that defendants failed to pay
minimum wage and overtime. Before the Court are two motions.
First, defendants have moved to dismiss the FLSA minimum wage claims under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. In defendants’ view, plaintiffs cannot
seek relief under the FLSA if they made more than the federal minimum wage but less than the
state minimum wage. I agree. Based on the text and structure of the FLSA and its implementing
regulations, I conclude that a violation of state minimum wage laws does not itself create a
minimum wage claim under the FLSA. Therefore, the motion to dismiss is granted.
Second, plaintiffs have moved for conditional certification of a collective action and
court-facilitated notice under the FLSA. They have proposed a collective consisting of all gas
station attendants who worked at all of defendants’ stations in the State of New York. Although
plaintiffs have not yet established that they are similarly situated to that broad group of
employees, plaintiffs have met their minimal burden when it comes to the other attendants at

their station. Therefore, the motion is granted in part.1
BACKGROUND
As attendants at the gas station, plaintiffs would pump gas, collect money, accept
deliveries, and perform other related tasks. Sandoz began working there in 2017. Rosa and
Silva joined two years later. All three allege that they received no overtime, despite working
more than 40 hours per week. The specificity varies. Silva alleges that he worked more than 40
hours per week only “on occasion.” Rosa alleges that he “routinely worked in excess of 40 hours
per week,” providingspecific examples from specific weeks. And Sandoz alleges that he
worked 51 hours every week. All three plaintiffs claim to have received a flat rate of pay. It

fluctuated throughout their employment, ranging between $8 and $12 per hour.
According to the amended complaint, Veeru Dhillon uses Jamaica Fuel and other
corporate entities to “operate his gas station business,” employing “at least 50 gas station
employees” throughout the State of New York. The business constitutes a “single integrated
enterprise” operating out of a central office in Long Island. There, Dhillon’s “sons or nephews”
–known only as “Gary” and “Karan” –serve as the “executive-level employees,” alongside an

1Two other pending motions are disposed of as follows. First, plaintiffs’motion for leave to file an amended
complaint [21] is denied as unnecessary since plaintiffshaveamended as of right under Federal Rule of Civil
Procedure 15(a)(2). Second, defendants’motion to dismiss the original complaint [17] is denied as moot in light of
the amended complaint.
2
“administrative-level employee” named “BK Sangha.” Together, these individuals control hiring
and firing, process the payroll, and set the terms of employment.2
Plaintiffs also allege that defendants transfer employees between the gas stations. For
instance, when Dhillon notified Rosa that he would “no longer operate” the Ashburton Avenue
station, he offered to transfer Rosa toa station “in Hunts Point, Bronx” or one “in Long Island.”

Similarly, plaintiffs allege that they met an employee named “Jassy” who defendants transferred
to the Ashburton Avenue station from a stationat 1081 Leggett Avenue in the Bronx (“the
Leggett Avenue station”). Jassyallegedly reported that other employees were paid below the
minimum wage and did not receive overtime.
After plaintiffs left their jobs at the gas station, they brought this suit under the FLSA and
the NYLL, alleging minimum wage and overtime violations of both statutes. Plaintiffs added
several NYLL-specific claims, and Sandoz brought his own FLSA retaliation claim, but those
claims are not at issue here.
DISCUSSION

I. Motion to Dismissthe Amended Complaint
Defendants’ argument is straightforward. Plaintiffs allege that they made between $8 and
$12 per hour, but at all relevant times, the federal minimum wage was $7.25 per hour. And if
plaintiffs were paid above the federal minimum wage, the argument goes, plaintiffs have no
claim under the FLSA, even if they made below the New York minimum wage.
As a practical matter, an employer must “pay employees at least the federal minimum
wage for every hour worked, or the state minimum wage, if it is greater than the federal
minimum wage.” Lopez v. Emerald Staffing, Inc., No. 18-cv-2788, 2020 WL 915821, at *8

2Plaintiffs have named two John Doe defendants who they allege are Gary and Karan.
3
(S.D.N.Y. Feb. 26, 2020) (citing 29 U.S.C. §§206, 218(a)). Accordingly, many courts have
stated that the FLSArequires an employer to pay the state minimum wage. See, e.g.,Payamps v.
M & M Convenience Deli & Grocery Corp., No.16-cv-4895, 2019 WL 8381264, at *7
(E.D.N.Y. Dec. 9, 2019). But despite the ubiquity of these statements, a holding to that effect is
harder to find.3

Moreover, the text of the statute strongly suggests that plaintiffs cannot recover for state-
law violations. Start with 29 U.S.C. §206(a), which addresses the minimum wage. Subject to
certain exceptions not relevant here, it requires every employer to “pay to each of his employees
... wages at . .. $7.25 an hour.” §206(a)(1)(C). Nothing in this section provides that paying a
wage above $7.25 an hour would violate the FLSA, even if state law required otherwise.
The FLSA does address state law in 29 U.S.C. § 218(a), known as the “savings clause.”
See, e.g.,Chen v. St. Beat Sportswear, Inc., 364 F. Supp. 2d 269, 293 n.40 (E.D.N.Y. 2005).
That section states:
No provision of this chapter or of any order thereunder shall excuse
noncompliance with any Federal or State law or municipal ordinance establishing
a minimum wage higher than the minimum wage established under this chapter or
a maximum work week lower than the maximum workweek established under
this chapter, and no provision of this chapter relating to the employment of child
labor shall justify noncompliance with any Federal or State law or municipal
ordinance establishing a higher standard than the standard established under this
chapter. No provision of this chapter shall justify any employer in reducing a
wage paid by him which is in excess of the applicable minimum wage under this
chapter, or justify any employer in increasing hours of employment maintained by
him which are shorter than the maximum hours applicable under this chapter
29 U.S.C. § 218(a). This passage “simply makes clear that the FLSA does not preempt any
existing state law that establishes a higher minimum wage or a shorter workweek than the federal
3Lopezassumed that the plaintiffs could recover under the FLSA even though they made more thanthe federal
minimum wage, but the case involved a default judgment and the court did not specifically address the issue.
See2020WL 915821, at *2, 8–11.
4
statute.” Cosme Nieves v. Deshler, 786 F.2d 445, 452 (1st Cir. 1986); accordWilliamson v.
Gen. Dynamics Corp., 208 F.3d 1144, 1151 (9th Cir. 2000). But it’s one thing to say that the
FLSA does not preempt state law; it’s quite another to say that the FLSA incorporates state law.
See Cosme Nieves, 786 F.2d at 452. Plaintiffs must look elsewhere.
To that end, plaintiffs point to a regulation from the Department of Labor which

provides:
Various Federal, State, andlocal laws require the payment of minimum hourly,
daily or weekly wages different from the minimum set forth in the Fair Labor
Standards Act, and the payment of overtime compensation computed on bases
different from those set forth in the Fair Labor Standards Act. Where such
legislation is applicable and does not contravene the requirements of the Fair
Labor Standards Act, nothing in the act, the regulations or the interpretations
announced by the Administrator should be taken to override or nullify the
provisions of these laws. Compliance with other applicable legislation does not
excuse noncompliance with the Fair Labor Standards Act. Where a higher
minimum wage than that set in the Fair Labor Standards Act is applicable to an
employee by virtue of such other legislation, the regular rate of the employee, as
the term is used in the Fair Labor Standards Act, cannot be lower than such
applicable minimum, for the words “regular rate at which he is employed” as used
in section 7 must be construed to mean the regular rate at which he is lawfully
employed.
29 C.F.R. § 778.5. Like the statute’s savings clause, this regulation addresses preemption. To
the extent it incorporates state law, it does so for a limited purpose –calculating the “regular
rate” of the employee for purposes of an overtime claim. See29 U.S.C. § 207(a)(1). This
regulation appears in a part of the federal register addressing overtime compensation, see
§778.0–778.603, and there is no corresponding regulation for minimum wage compensation.
For these reasons, courts around the country have concluded that, “for non-overtime
wages, the FLSA requires only that employers pay the minimum wage rates set by federal law.”
Gurung v. Malhotra, 851 F. Supp. 2d 583, 592 (S.D.N.Y. 2012) (quoting Pineda-Herrera v. Da-
Ar-Da, Inc., No. 09–cv–5140, 2011 WL 2133825, at *5 (E.D.N.Y. May 26, 2011)); see also
5
Bruns v. Mun. of Anchorage, 182 F.3d 924, 1999 WL 288910, at *2 (9th Cir. May 10, 1999);
Fast v. Applebee’s Int’l, Inc., No. 06-cv-4146, 2009 WL 2391775, at *7 (W.D. Mo. Aug. 3,
2009); McElmurry v. US Bank Nat. Ass’n, No. 04-cv-642, 2005 WL 2078334, at *4 (D. Or.
Aug. 24, 2005), report and recommendation adopted, 2005 WL 2492932 (D. Or. Oct. 7, 2005);
cf.Lanzetta v. Florio’s Enterprises, Inc., No. 08-cv-6181, 2011 WL 3209521, at *1–4(S.D.N.Y.

July 27, 2011) (Chin, J.) (reaching this conclusion when addressing liquidated damages). As one
court summarized:
While the FLSA clearly provides that states and municipalities may enact laws
providing for more generous minimum wages, and while the FLSA clearly
provides that compliance with the FLSA minimum wage does not excuse
noncompliance with a state or municipal minimum wage, there is no support for
plaintiffs’ argument that the failure to pay that more generous minimum wage
states a FLSAminimum wage violation. Such failure may trigger a violation of
the relevant state or municipal law, but it does not, by itself, support a federal
minimum wage FLSA claim.
McElmurry, 2005 WL 2078334, at *4 (D. Or. Aug. 24, 2005). I agree. Because plaintiffs allege
that their wages surpassed the federal minimum wage, plaintiffs cannot state a minimum wage
claim under the FLSA. I therefore grant the motion to dismiss.4
II. Collective Action Motion
A. Approval to Proceed with a Collective Action
The FLSA authorizes employees to bring a collective action to recover unpaid minimum
wage and overtime compensation on behalf of themselves and similarly situated employees.
See 29 U.S.C. §216(b). Because similarly situated employees can become plaintiffs only by
4This decision haslittle practical effect on plaintiffs’ability to seek redress for the alleged minimum wage
violations, as defendants do not challenge plaintiffs’ NYLL claims. However, the dismissal of plaintiffs’ FLSA
minimum wage claims means that any FLSA collective can only cover FLSA overtime claims.
I am reserving decision on whether the continuing exercise of supplemental jurisdiction is appropriate in light of the
dismissal of the FLSAminimum wage claims. See28 U.S.C. § 1367(c)(2).
6
filing written consent with the court,see id.,courts have discretion to facilitate notice to those
employees, see Hoffmann-La Roche,Inc. v. Sperling, 493 U.S. 165, 169 (1989). This process is
often referred to as certification, see, e.g.,Weng v. Kung Fu Little Steamed Buns Ramen,Inc.,
No. 17-cv-273, 2018 WL 1737726, at *2 (S.D.N.Y.March 26, 2018), though I prefer to refer to
it as approval to proceed with a collective action to distinguish it from certification of class

actions under Federal Rule of Civil Procedure 23.
When determining whether to approve a collective action, courts in the Second Circuit
conduct a two-step process. See Myers v. Hertz Corp., 624 F.3d 537, 554–55 (2d Cir. 2010).
First, in a step referred to as conditional certification, the court “mak[es] an initial determination
to send notice to potential opt-in plaintiffs who may be similarly situated to the named plaintiffs
with respect to whether a FLSA violation has occurred.” Id.at 555 (quotation omitted). Second,
“the district court will, on a fuller record, determine whether a so-called collective action may go
forward by determining whether the plaintiffs who have opted in are in fact similarly situated to
the named plaintiffs.” Id.(quotation omitted).

This case is at thefirst stage. Plaintiffs must “make a modest factual showing that they
and potential opt-in plaintiffs together were victims of a common policy or plan that violated the
law.” Id.(quotation omitted). “[T]he focus of the inquiry is not on whether there has been an
actual violation of law but rather on whether the proposed plaintiffs are similarly situated . ..
with respect to their allegations that the law has been violated.” Romero v. La Revise Assocs.,
LLC., 968 F. Supp. 2d 639, 645 (S.D.N.Y. 2013) (quotation omitted). Specifically, plaintiffs
“must show a factual nexus . .. between the plaintiff[s’] situation and the situation of other
potential plaintiffs,” which plaintiffs can achieve through “pleadings, affidavits, and
declarations.” Fernandez v. On Time Ready Mix, Inc.,No. 14-cv-4306, 2014 WL 5252170,
7
at *1 (E.D.N.Y. Oct. 4, 2014) (quotation omitted). Applying this standard, courts have
repeatedly emphasizedthe “minimal” nature of the burden, as “the determination that the parties
are similarly situated is merely a preliminary one that may be modified or reversed at the second
certification stage.” Anjum v. J.C. Penney Co., No. 13-cv-460, 2015 WL 3603973, at *5
(E.D.N.Y. June 5, 2015) (quoting Kalloo v. Unlimited Mech. Co. of NY, Inc., 908 F. Supp. 2d

344, 346 (E.D.N.Y. 2012)).
In this case, plaintiffs have proposed a collective consisting of “all current and former gas
station attendants at any of the [d]efendants’ gas stations located in the State of New York and
for whom payroll was processed by the central office staffed by, inter alia, Ms. BK Sangha.”
Plaintiffs rely exclusively on the allegations in the complaint and their own affidavits. Together,
these documents describe the structure of defendants’ business as well as plaintiffs’ work at the
Ashburton Avenue station.
The evidence is far from perfect, but it is enough for plaintiffs to meet their minimal
burden of showing that they are similarly situated to the other attendants at the Ashburton

Avenue station. All three plaintiffs have alleged that they never receivedovertime and instead
received a flat rate of pay. Specifically, Sandoz avers that he worked 6:00 AM to 11:00 PM
every Monday, Wednesday, and Thursday, without receiving any overtime pay. He then started
working the same schedule on Saturdays and Sundays, but still with no overtime. Rosa offers
even more detail. He avers that, when he was hired, BK Sangha asked “whether she could give
[him] a falsified pay stub that stated [he] was only working 40 hours per week.” Rosa then avers
that he “routinely worked in excess of 40 hours per week” without overtime compensation. He
offers a specific example, stating that, between May 19 and May25, 2019, he worked eight

8
hours on Sunday, sixteen hours on Tuesday, eight hours each on Wednesday and Thursday, and
then nine hours on Friday, totaling fifty-seven hours.5
Although the complaint and affidavits do not detail the experiences of other attendantsat
the Ashburton Avenue station, that omission is not fatal. Several courts have accepted affidavits
from two plaintiffs as sufficient to establish a “common policy or practice of failing to pay

overtime.” Elamrani v. Henry Limousine, Ltd., No. 15-cv-2050, 2016 WL 5477590, at *3
(E.D.N.Y. Sept. 28, 2016) (collecting cases). The question is not one of quantity, but quality,
and that very much depends on the facts of the case. See, e.g.,Zhang v. Bally Produce, Inc., No.
12-cv-1045, 2013 WL 1729274, at *4 (E.D.N.Y. Apr. 22, 2013). In this case, the key fact is the
nature of plaintiffs’ employment.
First, it helps explain why plaintiffs have failed to name other attendants at the Ashburton
Avenue station who never received overtime compensation. Working as a gas station attendant
is a relatively solitary job. That fact stands in contrast to many FLSA cases, which involve team-
based jobs that require frequentinteraction. For plaintiffs in those positions, a court could expect

the names of other employees who were subject to a common policyor plan. See, e.g.,Reyes v.
Nidaja, LLC, No. 14-cv-9812, 2015 WL 4622587, at *2 (S.D.N.Y. Aug. 3, 2015) (restaurant
workers). For gas station attendants, that logic carries far less force.
Second, plaintiffs’ position is a “commoditized” one, such that an employer would have
no reason to treat certain employees in a given location any differently than it treatedthe others.

5The remaining plaintiff is Silva. The amended complaint alleges that he worked more than 40 hours per week “on
occasion.” In his affidavit, Silvaavers that he typically worked 24 hours per week “with an occasional double
shift.” Still, he brings an FLSA overtime claim, based on his allegationthat he“was never compensated for any
overtime hours.” Although these allegations mayultimately provedeficient, “a court should not weigh the merits of
the underlying claims in determining whether potential opt-in plaintiffs may be similarly situated.” Kassman v.
KPMG LLP, No. 11-cv-03743, 2014 WL 3298884, at *6 (S.D.N.Y. July 8, 2014)(quotation omitted). At this stage,
therefore, the Court will not consider whether Silva has a viable FLSA claim. See id.
9
See Siewmungal v. Nelson Mgmt. Grp.Ltd., No. 11-cv-5018, 2012 WL 715973, at *3 (E.D.N.Y.
March3, 2012) (applying this logic to security guards). Defendants have offered no reason –
and I can think of none –why they would have paidthe other attendants at the station any
differently than they paidplaintiffs. See id. This inference finds further support in Rosa’s
allegation that Sangha asked if she could provide a falsified pay stub.

Defendants fail to appreciate these unique circumstances. They fault plaintiffs for failing
to “go beyond their own circumstances,” yet thecases defendants cite all involved team-based
jobs. See Zheng v. Good Fortune Supermarket Grp. (USA), Inc., No. 13-cv-60, 2013 WL
5132023, at *5 (E.D.N.Y. Sept. 12, 2013) (supermarket clerks); Barrus v. Dick’s Sporting
Goods, Inc., 465 F. Supp. 2d 224, 230 (W.D.N.Y. 2006) (retail). Defendants also dismiss several
allegations as “conclusory,” “unsubstantiated,” and “low octane speculation,” but theallegations
that defendants cite all concern the other stations, beyond the one at Ashburton Avenue.
Indeed, defendants’ main argument is that plaintiffs have “failed to allege sufficient facts
that can possibly give an inference as to a common policy of alleged unlawful pay practice

spanning multiple locations.” I address that below. But even it was accurate,it does not follow
that plaintiffs have also failed to allege an unlawful policy at the specific location where they
worked. I thus conclude that plaintiffs have made the “modest factual showing” that they and
the other gas station attendants at the Ashburton Avenue station “were victims of a common
policy or plan that violated the law.” Myers, 624 F.3d at 555 (quotation omitted).
Still, I cannot take the next step, extending the collective to reach the other stations. In
their bid to include this broad class of employees, plaintiffs rely on two categories of allegations:
their interactions with “Jassy” andthe centralized nature of defendants’ business. None of these
allegations are sufficient.
10
The “Jassy” story appears in identical language in Rosa and Silva’s affidavits. They both
aver:
Jassy confirmed for me that other employees [who] worked at the Dhillon
family’s gas stations were paid below the applicable minimum wage and never
compensated overtime or spread of hours. He also stated that other employees
were not provided meal and rest breaks, paystubs and any wage notices like
myself and [the other named plaintiffs].
Based on the foregoing, I learned that the [d]efendants also did not pay other
nonexempt employees minimum wage or overtime pay for hours worked over 40
per workweek.
These allegations are nothing more than the kinds of “vague, conclusory, and unsupported
assertions” that courts have rejected as “an insufficient basis for conditional class certification.”
Weng, 2018 WL 1737726, at *4(quotation omitted) (“[I]t is Defendant’s policy to not pay any
employees overtime because I have talked with other employees of all types at both of the
locations that I worked.”); see alsoZheng, 2013 WL 5132023, at *5 ([B]ased on [my] personal
observation, other supermarket clerks were subject to the same time shaving policy.”).
When other courts have faced similar allegations, they have declined to extend the
collective beyond the plaintiff’s workplace. Consider Beaton v. Verizon New York, Inc.,
No.20-cv-672, 2020 WL 5819902 (E.D.N.Y. Sept. 30, 2020). There, a Bushwick-based plaintiff
sought to include employees at the defendant’s Coney Island locationin the collective, based on
his allegation that, after a coworker transferred to that location, she reported that the employees
“were also required to work off the clock.” Id.at*1. I found that allegation insufficient. In
doing so, I relied on Lujan v. Cabana Management, Inc.,No. 10-cv-755, 2011 WL 317984, at *7
(E.D.N.Y. Feb. 1, 2011), in which a New York plaintiff sought to include employees at the
defendants’ Florida locations in the collective. The plaintiff alleged that the Florida employees
“told [him] that they and their co-workers were also not being paid their legal wages and that the
11
same things that were occurring at [defendant’s]New York locations were also occurring at
[defendant’s] Florida locations.” Id. The court rejected this “scant evidence” as “insufficient.”
Id. Jassy’s allegations are no different.6
Plaintiffs thus fall back on the centralized nature of defendants’ business. As they note,
“[c]ourts in this Circuit regularly find named plaintiffs to be similarly situated to employees at

locations where they did not work.” Rosario v. Valentine Ave. Disc. Store, Co., 828 F. Supp. 2d
508, 516 (E.D.N.Y. 2011). “‘[E]vidence of centralization’ can allow a ‘viable inference’ that an
employer paid its employees at one location in the same manner that it paid employees at
others.” Beaton, 2020 WL 5819902, at *3 (quoting Siewmungal, 2012 WL 715973, at *3); see
alsoKaric v. Major Auto. Cos., Inc., 799 F. Supp. 2d 219, 227 (E.D.N.Y. 2011) (reasoning that
“common ownership” supports the same inference).
Several of plaintiffs’ allegations might seem to fall within this framework. For instance,
they allege that defendants transferred Jassy between stations and that defendants offered to
transfer Rosa to another station. In that regard, this case resembles the ones in which different

locations “shared” employees –a fact that supported the inference that those locations also
“shared common policies and procedures.” Rotari v. Mitoushi Sushi, Inc., 448 F. Supp. 3d 246,
252 (E.D.N.Y. 2020); see alsoGarcia v. Pancho Villa’s of Huntington Vill., Inc., 678 F. Supp.
2d 89, 93–94 (E.D.N.Y. 2010). But here, the allegations have two important flaws.

6Defendants have produced an affidavit from Jassy himself. He identifies himself as Jaswinder Singh, and he avers
that he worked at the Ashburton Avenue station for two weekends before quitting. He acknowledges meetingSilva,
but not Rosa or Sandoz. Hedenies telling plaintiffs that employees were paid below the minimum wage. However,
“courts in this Circuit regularly conclude that competing declarations do not undermine the plaintiffs’ showing in the
first stage of the conditional certification process,”for the court “does not resolve factual disputes, decide
substantive issues going to the ultimate merits, or make credibility determinations.” Anjum, 2015 WL 3603973,
at*7 (quotations omitted).
12
First, “a court has to be skeptical” when a plaintiff’s declaration or affidavit “throws
around terms that were plainly chosen by the plaintiff’s lawyer.” Alberto v. Rico Pollo #2 Rest.
Corp., No. 18-cv-4762, 2018 WL 6813057, at *3 (E.D.N.Y. Dec. 26, 2018). Although a court
does not make credibility determinations at this stage,Anjum, 2015 WL 3603973, at *7, it need
not accept conclusory allegations, and “lawyer-composed” assertions are often conclusory

because the plaintiffs do not –and cannot –explain how they came about that information, see
Alberto, 2018 WL 6813057, at *3. Plaintiffs’ allegations regarding “executive-level” and
“administrative-level” employees, as well as the allegations regarding the centralized payroll
system, fall within this category. See id.
The second flaw is that plaintiffs seek statewide certification “without clarifying how
many locations exist.” See Mendoza v. Ashiya Sushi 5, Inc., No. 12-cv-8629, 2013 WL
5211839, at *5 (S.D.N.Y. Sept. 16, 2013). Plaintiffs have not even offered a ballpark figure, and
they provide the addresses for only the Ashburton Avenue station and the Leggett Avenue
station. More obliquely, plaintiffs reference stations “in Hunts Point” and “in Long Island.” But

I cannot infer that a uniform policy or plan exists across every station without knowing how
many stations there are. In other words, if plaintiffs themselves don’t know enough about
defendants’business to even identify other locations, I would be hard-pressed to find that they
are all run the same.
The problem is that thebreadth of a defendants’ business affects what quality and
quantity of evidence will establish a common policy or plan. For only a few locations, the
actions of a single manager, or the comments of a few fellow employees, may be enough. See,
e.g.,Rotari, 448 F. Supp. 3d at 251–53 (four sushi restaurants). But “[f]or larger employers, the
inference becomes more strained absent broader evidentiary support.” Beaton, 2020 WL
13
5819902, at *3; see alsoAnjum, 2015 WL 3603973, at *1,8–9(forty-seven department stores).
“In the context of statewide certification under the FLSA, some courts have described this as a
requirement to demonstrate that a ‘statewide’ policy or practice exists.” Hamadou v. Hess Corp.,
915 F. Supp. 2d 651, 662 (S.D.N.Y. 2013) (quoting Vasquez v. Vitamin Shoppe Indus.,Inc.,
No.10-cv-8820, 2011 WL 2693712 at *3–4 (S.D.N.Y. July 11, 2011)).

In Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 655 (S.D.N.Y. 2013), for example, a
group of gas station cashiers sought conditional certification of a state-wide collective. The
court declined to venture beyond two New York City boroughs,however,becausethe plaintiffs
“offer[ed] no evidence –not even hearsay –about stations elsewhere in the New York City
metropolitan area or further upstate.” Id.at 666. The case involved even stronger evidence of a
company-wide practice, because the plaintiffs’ manager allegedly referred to his illegal activities
as “company policy.” Id. But, as the court observed, other courts in this Circuit “have
repeatedly denied conditional certification of a statewide class (or a nationwide class) where
plaintiffs have alleged that a de factounlawful policy exists, but have only presented facts

pertinent to several locations in a particular region.” Id.(collecting cases). Here, plaintiffs have
not even done that.
Therefore, I cannot extend the collective beyond the Ashburton Avenue station. I will
only conditionally authorize this case to proceed as a collective action to include all attendants
who worked at the Ashburton Avenue stationduring the relevant period.
B. Disclosure of Contact Information
Plaintiffs have also moved for a court order that defendants provide the “complete
contact information” for potential opt-in plaintiffs. Specifically, plaintiffs seek the “full names,
last known addresses, all known mobile and home telephone numbers, last known e-mail
14
addresses, work locations, dates of employment, and all known languages spoken” for all “non-
exempt employees”thatdefendants employed in the last six years. When faced with other
“overly broad” motions, I have ordered notice only “to the extent necessary to facilitate
providing notice by first-class mail and e-mail to viable members of the collective.” Rotari, 448
F. Supp. 3d at 255. In this case, defendants shall disclose the names, addresses, email addresses,

and native languages of all employees who worked as attendants at the Ashburton Avenue
station within the relevant period. Defendants shall disclose this information in a computer-
readable format within 21 days of this order.
C. The Notice Period
Plaintiffs also request that the information cover all employees who worked as attendants
within six years of the filing of the complaint. When plaintiffs bring NYLL claims alongside
FLSA claims, courts in this Circuit are split as to whether the notice period should be six years,
based on the NYLL’s limitations period, or three years, based on the FLSA’s limitations period
for willful violations. See Lopes v. Heso, Inc., No. 16-cv-6796, 2017 WL 4863084, at *2

(E.D.N.Y. Oct. 27, 2017)(discussing the issue in greater depth). I have already made clear that,
in my view, “the better-reasoned approach is for the notice to span only three years,”Hanchard-
James v. Brookdale Family Care Centers, No.12-cv-1922, 2012 WL 3288810, at *4 (E.D.N.Y.
Aug. 9, 2012), and plaintiffs have not offered any argument that persuades me to reconsider that
view.
Defendants propose a two-year period, citing the shorter limitations period that applies
when a plaintiff cannot establish a willful violation. See 29 U.S.C. §255(a). But plaintiffs have
alleged willfulness, and the court does not resolve factual disputes at this stage. See Velasquez
v. Digital Page, Inc., No. 11-cv-3892, 2014 WL 2048425, at *10 (E.D.N.Y. May 19, 2014)
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(rejecting a two-year period). Therefore, the disclosed information shallcover attendants
employed within three years of this order.
D. Reminder Notice
Plaintiffs also seek to send a reminder notice to potential opt-in plaintiffs. “[T]he weight
of caselaw in the Second Circuit has in recent years moved towards approval of reminder notices

in light of the remedial purpose of the FLSA.” Meo v. Lane Bryant, Inc., No. 18-cv-6360, 2019
WL 5157024, at *13 (E.D.N.Y. Sept. 30, 2019) (collecting cases). Plaintiffs may mail and email
the reminder notice to potential opt-in plaintiffs 14 days before the opt-in deadline.
E. Posting of the Notice
Plaintiffs also move for a court order that defendants “post the notices and Consent to
Join Forms in English, Punjabi and Hindi, in a conspicuous place at all of [d]efendants’ gas
stations.” In this circuit, courts “routinely approve requests to post notice on employee bulletin
boards and in other common areas, even where potentialmembers will also be notified by mail,
because it maximizes potential plaintiffs’ opportunities to be informed of the pendency of the

litigation and consider whether to opt in.” Beaton, 2020 WL 5819902, at *6 (quotation omitted).
I therefore order defendants to post English, Punjabi,and Hindi versions of the notice and
consent forms in a conspicuous location at the Ashburton Avenue station within seven days of
this order.
F. Translations of the Notice
Plaintiffs’ final request is for permission to send a certified translation of the original and
reminder notice to potential opt-in plaintiffs in the native languages that defendants identify.
Defendants do not oppose this request, and courts generally “permit notice to be translated into

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the mother tongue of non-English speaking groups of potential plaintiffs.” Valerio v. RNC
Indus., LLC, 314 F.R.D. 61, 76 (E.D.N.Y. 2016).
G. Content of the Notice
Finally, defendants take issue with the notice itself, arguing that plaintiffs “shouldbe
required to disclose attorney’s fees information.” A few courts have required plaintiffs to

disclose fee arrangements. See, e.g.,Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317,
324 (S.D.N.Y. 2007). But a court “has broad discretion over the details of the notice,” and I
remain skeptical that the notice must discuss thefee arrangement. See Beaton,2020 WL
5819902, at*6(quotation omitted). “The notice serves to alert potential plaintiffs that they may
join the collective action; to the extent they have additional questions about costs, they are
perfectly capable of asking counsel or researching the question themselves.” Id. Therefore,
defendants’request is denied. Because defendants have not objected to any further content, I
adopt the remainder of the proposed notice.
CONCLUSION

Plaintiffs’ motion for leave to file an amended complaint [21] is denied as unnecessary.
Defendants’ motion to dismiss the original complaint [17] is denied as moot, but their motion to
dismiss the amended complaint [24] is granted. Plaintiffs’motion toproceedas anFLSA
collective action and for court-authorized notice[16] is granted in part, in accordance with the
directionsset forth above. Within 7 days of this order, defendants shall post the noticeand
consent forms in a conspicuous location at the Ashburton Avenue station. Within 21 days of this
order, defendants shall disclose the contact information of the attendants at the Ashburton
Avenue station, as set forth above. Those who wish to participate in this FLSA collective action

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must opt in within 90 days of this order. Plaintiffs may mail and email the reminder notice to
potential opt-in plaintiffs 14 days before that deadline.

Digitally signed by
SO ORDERED.
Brian M. Cogan
____________________________________
U.S.D.J.
Dated: Brooklyn, New York
December 13, 2020

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305373. Public record. Not legal advice.