Wilson v. Jamaica Service Program for Older Adults, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------- X

DANE WILSON, on behalf of himself and all :

others similarly situated, : MEMORANDUM DECISION AND

: ORDER

Plaintiff, :

: 21-cv-1263-BMC

- against - :

:

:

JAMAICA SERVICE PROGRAM FOR :

OLDER ADULTS, INC., et ano., :

:

Defendants. :

:

---------------------------------------------------------- X

COGAN, District Judge.

Plaintiff Dane Wilson brings this action against his former employer, Jamaica Service

Program for Older Adults, Inc. (“JSPOA”) and JSPOA Board President William Collins, Jr.

under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and New York Labor

Law § 650 et seq. He alleges that he and others did not receive required overtime pay, were not

paid for meal breaks that they had to work through, and were not timely paid.

Before me is plaintiff’s motion to 1) use what he calls “representative testimony” at trial,

and 2) introduce deposition testimony of absent opt-in plaintiffs regardless of whether those opt-

ins are available to provide live testimony at trial. The motion is granted as to plaintiff’s first

request and denied as to his second.

BACKGROUND

Plaintiff brought his FLSA action individually and on behalf of a putative collective of

similarly situated employees. The Court granted preliminary approval to proceed collectively, at

which point notice of the action was disseminated to other individuals who defendants had

employed. Eighteen people have opted into the collective.1

In the parties’ joint proposed pretrial order in this action, plaintiff included all opt-ins on

his witness list and indicated that he may “rely upon the testimony of some of the Opt-in

Plaintiffs as representative testimony on behalf of all Opt-in Plaintiffs.” Plaintiff also included

deposition designations for some of the opt-ins. At the final pretrial conference, defendants

objected to plaintiff’s intended use of representative testimony, arguing that collective actions,

unlike class actions, require each opt-in to establish the merits of that plaintiff’s own action.

Defendants further objected to plaintiff’s attempted introduction of the opt-ins’ testimony via

deposition designation, arguing that Rule 32 only permits the introduction of non-adverse

deposition testimony if a witness is unavailable.

After the instant motion was briefed, the Court held an evidentiary hearing pursuant to

Federal Rule of Evidence 104(a) to determine the admissibility of the representative testimony,

in which the Court heard testimony from three of the proposed representatives. Plaintiff then

filed a declaration from a fourth proposed representative, and the parties subsequently submitted

deposition transcripts from several non-testifying opt-in plaintiffs, including designations and

counter-designations of relevant testimony.

DISCUSSION

“Section 207(a)(1) of [the] FLSA requires that, ‘for a workweek longer than forty hours,’

an employee who works ‘in excess of’ forty hours shall be compensated for that excess work ‘at

a rate not less than one and one-half times the regular rate at which he is employed’ (i.e., time

and a half).” Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 113-14 (2d Cir.

1 Although the docket indicates that there are nineteen opt-ins, the parties have suggested in their papers and at

hearings that there are eighteen. This discrepancy does not impact the Court’s analysis.

2013). “To establish liability under the FLSA on a claim for unpaid overtime, a plaintiff must

prove that he performed work for which he was not properly compensated, and that the employer

had actual or constructive knowledge of that work.” Kuebel v. Black & Decker Inc., 643 F.3d

352, 361 (2d Cir. 2011). If an employee is required to work during meal breaks and that work

“predominantly” benefits the employer, that time must be counted in the employees working

hours and the employee must be appropriately compensated for it. See Lundy, 711 F.3d at 112.

“[A]lthough the FLSA ‘does not explicitly require that wages be paid on time, the courts have

long interpreted the statute to include a prompt pay requirement.’” Sarit v. Westside Tomato,

Inc., No. 18-cv-11524, 2020 WL 1891983, at *4 (S.D.N.Y. April 16, 2020) (quoting Rogers v.

City of Troy, 148 F.3d 52, 55 (2d Cir. 1998)).

Pursuant to Section 216(b) of the FLSA, an employer who violates Sections 206 or 207 is

liable to its employees “for their unpaid overtime compensation . . . and in an additional equal

amount as liquidated damages,” and any employee who is “similarly situated” to the named

plaintiff can become a party plaintiff to the action. See Scott v. Chipotle Mexican Grill, Inc., 954

F.3d 502, 516 (2d Cir. 2020) (“party plaintiffs are similarly situated, and may proceed in a

collective, to the extent they share a similar issue of law or fact material to the disposition of

their FLSA claims”). Permitting similarly situated plaintiffs to proceed collectively in pursuing

alleged violations of their rights under the FLSA allows “for efficient adjudication of similar

claims, so ‘similarly situated’ employees, whose claims are often small and not likely to be

brought on an individual basis, may join together and pool their resources to prosecute their

claims.” Lynch v. United Servs. Auto. Ass’n, 491 F.Supp.2d 357, 367 (S.D.N.Y. 2007).

Consistent with this aim, “the collective-action framework presumes that similarly situated

employees are representative of each other and have the ability to proceed to trial collectively.”

Monroe v. FTS USA, LLC, 860 F.3d 389, 409 (6th Cir. 2017).

I. Representative Testimony

A brief note on nomenclature is in order at the outset. The Court uses the term

“representative testimony” in this decision for ease of reference and to be consistent with the

parties’ briefing and case law. However, the Court does not view the testimony of one member

of the collective as “representative” of the collective on the whole. Rather, when opt-ins testify

as to their alleged injuries, the factfinder may use that information to make reasonable inferences

about the alleged injuries of similarly situated non-testifying opt-ins.

This distinction is not merely semantic – when plaintiffs opt into a collective, they join

the action as party plaintiffs, with the same status as a plaintiff that joins a multi-plaintiff action.

As the Sixth Circuit recently noted in Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th

1003, 1009 (6th Cir. 2023):

[U]nlike a Rule 23 class action, an FLSA collective action is not representative –

meaning that all plaintiffs in an FLSA action must affirmatively choose to become

parties by opting into the collective action. Thus – in contrast to members of a

Rule 23 class – similarly situated employees who join an FLSA action become

parties with the same status in relation to the claims of the lawsuit as do the

named plaintiffs. In sum, under Rule 23, the district court certifies the action itself

as a class action; whereas in an FLSA action, under § 216(b), the district court

simply adds parties to the suit.

(Cleaned up). Therefore, all members of the collective must prove their individual claims

against their employer. That proof may take many forms, including documentary evidence,

direct testimony, and inferential proof through the testimony of other collective members.

Plaintiff’s motion focuses on that final form of proof.

The Second Circuit permits representative testimony in FLSA actions to prove liability as

to absent opt-ins. In Reich v. Southern New England Telecommunications Corp., 121 F.3d 58

(2d. Cir. 1997), the Court upheld a verdict against an employer for violating the FLSA where

plaintiffs presented testimony from a “representative sample” constituting approximately 2.5%

of the entire collective, noting that “it is well-established that the Secretary may present the

testimony of a representative sample of employees as part of his proof of the prima facie case

under the FLSA.” Reich, 121 F.3d at 67. Similarly, in Harold Levinson Assocs., Inc. v. Chao,

37 F. App’x 19 (2d Cir. 2002), the Second Circuit approved representative testimony from a

sample of employees to “provide a foundation for assumptions about the overall employee pool”

with respect to FLSA liability. Harold Levinson, 37 F. App’x at 21. And in Grochowski v.

Phoenix Construction, 318 F.3d 80 (2d Cir. 2003), the Court held that “not all employees need

testify in order to prove FLSA violations or recoup back-wages[.]” Grochowski, 318 F.3d at 88.

It is therefore well-established in this Circuit that “[t]estimony from a group of employee

witnesses about the hours worked and pay received is sufficient representation to calculate the

amount of wages owed to the enterprise’s entire workforce.” Chao v. Vidtape, Inc., 196 F. Supp.

2d 281, 293 (E.D.N.Y. 2002), aff’d as modified, 66 F. App’x 261 (2d Cir. 2003).

Relatedly, the Supreme Court has held that plaintiffs may use a “representative sample to

establish classwide liability” in FLSA actions, allowing courts to “infer[] the hours an employee

has worked from a study . . . so long as the study is otherwise admissible.” Tyson Foods, Inc. v.

Bouaphakeo, 577 U.S. 442, 460 (2016). Although documentary evidence generated by

representative sampling (e.g., aggregated data from sampling a subset of a group) is not identical

to representative testimony, both types of evidence share the feature of proving liability or

damages as to absent members of a group indirectly and inferentially through evidence regarding

the experience of some subset of the group.

Decisions from outside the Second Circuit, while not binding on the Court, also provide

support for the use of this kind of testimony in FLSA actions. As explained in Ivanovs v.

Bayada Home Health Care, Inc., No. 17-cv-1742, 2023 WL 3644637 (D.N.J. May 25, 2023),

because “courts commonly allow representative employees to prove violations with respect to all

employees . . . not all employees need to testify in order to prove the violations or to recoup back

wages.” Ivanovs, 2023 WL 3644637 at *3 (citing Reich v. Gateway Press, Inc., 13 F.3d 685,

701 (3d Cir. 1994); see also Monroe, 860 F.3d at 400 (trial court “properly instructed the jury

that FLSA procedure allows representative employees to file a lawsuit on behalf of a collective

group and that the testimony of some may be considered representative proof on behalf of the

whole class”).

The court’s treatment of representative testimony in Stillman v. Staples, Inc., No. 07-cv-

849, 2009 WL 1437817 (D.N.J. May 15, 2009), is particularly instructive. At trial, thirteen

employees testified on behalf of a 342-member collective regarding the defendant’s alleged

FLSA violations, leading the jury to find the defendant liable as to all opt-ins. Defendant

subsequently filed a motion for judgment as a matter of law, arguing that the plaintiff had failed

to establish that defendant was liable to any of the non-testifying opt-ins, since the testimony at

trial focused exclusively on the testifying members’ injuries. The court rejected that argument,

reasoning that plaintiffs may use “representative employees to prove violations with respect to

all employees” to testify about “the job title, job description, job duties, work performed, the

number of hours worked, and the compensation received or not received for hours worked in a

week beyond forty hours.” Stillman, 2009 WL 1437817 at *18. The court further explained that

the jury could extrapolate from such testimony to “draw reasonable inferences with regard to

non-testifying employees,” including the “manner and amount of payment to employees, the

number of hours employees worked, and the employees’ costs for uniforms and maintenance.”

Id.

Stillman is also notable for its discussion of establishing damages inferentially through

testimony and evidence from a subset of the collective. Because the defendant employer had

failed to provide salary information for absent opt-ins before the close of discovery, the court

determined that it would use the lowest salary among the representative plaintiffs for the purpose

of calculating back wages to the absent opt-ins. As the Stillman court put it, “plaintiffs need not

present testimony of every member of the collective action to prove their case and recover

damages.” Id. Although calculating damages by extrapolation from representative testimony is

necessarily imprecise, damages are not an exact science, especially in collective actions. Reich

makes clear that the plaintiff’s burden is to produce “sufficient evidence to establish that the

employees have in fact performed work for which they were improperly compensated and

produce sufficient evidence to show the amount and extent of that work as a matter of just and

reasonable inference.” Reich, 121 F.3d at 67. At that point, the burden shifts to the defendant to

“produce evidence of the precise amount of work performed or evidence to [negate] the

reasonableness of the inference to be drawn from the employee’s evidence,” failing which “the

court may award damages, even though the result is only approximate.” Id. at 67, 70 (emphasis

added).2

Romero v. Fla. Power & Light Co., No. 09-cv-1401, 2012 WL 1970125 (M.D. Fla. June

1, 2012), provides additional support for plaintiff’s approach. The court examined several

2 This burden-shifting framework, which traces its origins back to Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680 (1946), applies when an employer “fails to keep records in conformity with his statutory duty,” such as by

destroying timesheets or not keeping records at all. See, e.g., Chao, 196 F.Supp.2d at 293. Here, plaintiff alleges

that defendants coerced their employees to fill in their timesheets with the hours they were scheduled to work, rather

than the hours they actually worked. If plaintiff establishes that theory at trial, then it follows that the burden-

shifting framework applies, as it would mean defendants failed to keep accurate records of their employees’ hours.

decisions that allowed “some employees to testify about a defendant’s FLSA liability so that

non-testifying plaintiffs can show the same by inference,” Romero, 2012 WL 1970125 at *3, and

referred to the “general rule that not all employees have to testify to prove overtime violations”

in claims alleging violations of the FLSA. Id. at *4 (citing Morgan v. Fam. Dollar Stores, Inc.,

551 F.3d 1233, 1279 (11th Cir. 2008)).

The court also considered and rejected the argument that representative testimony is

permissible only in enforcement actions “brought by the Secretary of Labor under section §

216(c) of the FLSA,” not collective actions brought by employees pursuant to § 216(b), an

argument that defendants raise in the instant action. See id. at *3. I agree with the Romero court

that this argument amounts to a distinction without a difference. Regardless of whether an

employee or the Secretary of Labor brings the action, the plaintiff’s prima facie burden to

establish the employer’s liability for violating the FLSA is the same.

The number of testifying opt-ins in this case as compared to the size of the total collective

is relevant to the issue of representativeness. As plaintiff notes, there are several cases in which

representative groups reflecting relatively small proportions of the collective were sufficient to

establish liability as to the entire collective. See, e.g., Reich, 121 F.3d at 66-68 (permitting

representative testimony from a subset constituting 2.5% of the collective). Here, plaintiff

intends to have three to six opt-ins testify out of of eighteen total opt-ins, amounting to

approximately 17% to 33% of the collective. The fact that the proposed testifying opt-ins

constitute somewhere between one-fifth and one-third of the collective provides some indication

that their testimony will be adequately similar to what the non-testifying opt-ins would testify to,

allowing the jury to make reasonable inferences about those non-testifying opt-ins’ injuries.

Although the Court places some weight on the size of the testifying group, “[i]t is

axiomatic that the weight to be accorded evidence is a function not of quantity but of quality”.

Id. at 67. For that reason, the extent to which the testimony of the testifying opt-ins reflects the

experiences of the non-testifying opt-ins has greater significance in determining whether to allow

representative testimony. In Reich, the Second Circuit emphasized that the testifying witnesses

included representatives from four of the five job categories in the complaint and additional

employees with firsthand knowledge of the fifth category. The Court further explained that

although many representative testimony cases involve “a fairly small employee population, a

limited number of employee positions, and uniform work tasks,” such as collectives with 26 or

98 opt-ins, there is no “bright line formulation” for how large the sample or collective must be.

Id. So long as there is “sufficient evidence to show the amount and extent of work as a matter of

just and reasonable inference,” a verdict in an FLSA action may be based upon testimony from a

relatively small portion of the collective. Id. at 69.

There is nothing novel about allowing representative testimony to be used in the context

of multi-plaintiff litigation. For example, if there are two plaintiffs in a lawsuit with similar

claims, there is generally no requirement that plaintiff B must testify on his own behalf instead of

relying on plaintiff A’s testimony. If plaintiff A’s testimony is sufficiently probative of plaintiff

B’s claim that the court allows plaintiff B’s claim to go to the jury, the jury may decide whether

that testimony is sufficient to find in favor of Plaintiff B. Of course, depending on the facts of

the case, plaintiff B may be taking a risk in wholly relying on plaintiff A’s testimony. But that

risk, with the Court’s threshold approval as to the probative value of plaintiff A’s testimony, is

plaintiff B’s to take.

Here, plaintiff has established that the testimony at trial has the potential to be reasonably

applicable to the absent opt-ins. Each plaintiff who testified at the evidentiary hearing fell into a

different job category, collectively representing all the job categories at issue in this action. The

witnesses also testified that they had some knowledge of the alleged injuries of fellow employees

from within their respective job category. The deposition transcripts of non-testifying opt-ins

demonstrate that those opt-ins’ allegations generally align with those of the opt-ins who testified

at the evidentiary hearing, especially with respect to the collective’s core allegations: delayed

payments, lack of overtime compensation, lack of lunch breaks, and pressure from defendants’

representatives to fill in timesheets with assigned hours rather than hours worked. These

similarities are sufficient to establish the admissibility of the testifying witnesses’ testimony on

behalf of the absent opt-ins.

To be clear, the Court’s decision to permit the testifying opt-ins’ testimony is not an

endorsement that the testimony will, in fact, be sufficient to establish either liability or damages

as to the absent opt-ins. If the testimony offered at trial is not enough to convince the jury to find

defendants liable with respect to the absent opt-ins, those opt-ins will not recover for their

alleged injuries. Defendants will therefore not be unduly prejudiced by the testifying opt-ins’

testimony, because they “retain the ability to challenge representative proof introduced by

[collective] members regarding defendants’ violation of the FLSA and the extent of damages.”

Johnson v. Wave Comm GR LLC, 4 F. Supp. 3d 453, 462 (N.D.N.Y. 2014). Relatedly,

defendants may introduce “evidence to [negate] the reasonableness of the inference to be drawn

from the employee’s evidence,” which could lead the jury not to apply the testimony from the

testifying opt-ins to the absent opt-ins. See Reich, 121 F.3d at 68.

Defendants argue that representative testimony is inappropriate here because “the

specifics of the individual wage claims of the opt-in plaintiffs in this case vary greatly.” As

already stated, any potential disparities between the testifying and non-testifying opt-ins are not

so great as to render the testimony inadmissible, keeping in mind that “plaintiffs need show only

that their positions are similar, not identical,” to the collective’s members. Wei Yu v. Kotobuki

Rest., Inc., No. 17-cv-4202, 2018 WL 11458640, at *3 (E.D.N.Y. Sept. 20, 2018). Nevertheless,

the Court agrees that there are some differences between the opt-ins’ claims that could

complicate the inferential extrapolation of the testimony presented at trial, including some

disparate allegations regarding lunch breaks, days worked, and amounts of overtime. To that

end, the jury will be instructed to consider any potential shortcomings in the opt-ins’ testimony

in determining “whether or not the plaintiffs have shown the testifying and non-testifying

employees held the same job, performed similar duties, were compensated in the same way, and

[were] impacted by the same company practice or policy.” See Stillman, 2009 WL 1437817 at

*18; see also Grochowski, 318 F.3d at 88 (“the plaintiffs must present sufficient evidence for the

jury to make a reasonable inference as to the number of hours worked by non-testifying

employees”). By offering proof via indirect rather than direct testimony, plaintiff proceeds at the

risk of failing to establish liability or damages as to the absent opt-ins.3

II. Deposition Testimony

Plaintiff’s argument in support of introducing the absent opt-ins’ deposition testimony4 at

trial is unconvincing. Parties are permitted to introduce deposition testimony of an adverse party

3 Particularly with regard to damages, the jury will be given the standard instruction that damages cannot be awarded

to any plaintiff, original or opt-in, if those damages are speculative. Given the relatively small size of the collective,

this risk may encourage plaintiff to present direct evidence from the opt-ins, rather than relying solely on the

testimony of the proposed subset of testifying opt-ins.

4 Introduction of designated excerpts of deposition testimony includes reading the deposition transcript into the trial

record and playing recordings from a witness’s deposition at trial.

(or its agents or representatives) at trial, regardless of whether the adverse party is available to

provide live testimony. Fed R. Civ. P. 32. However, plaintiff seeks to introduce the depositions

of his fellow members of the collective, who are necessarily not adverse parties to him in this

action. Therefore, the only way he can introduce their testimony via deposition (as opposed to

by calling those witnesses to testify live at trial) is if he can show that those witnesses are

unavailable pursuant to Rule 32(a)(4), such as by demonstrating that they live more than 100

miles away from the trial, are physically unable to testify in-person, or are outside of the Court’s

subpoena power.

Plaintiff cites cases in which courts appear to have allowed parties to introduce non-

adverse deposition testimony without establishing witness unavailability (under materially

different circumstances than those before the Court), but he points to nothing that would require

the Court to permit the introduction of such testimony. To the contrary, the Federal Rules of

Evidence tell me that I cannot. Rule 804(b)(1) states that deposition testimony is not excluded

under the rule against hearsay when the declarant is unavailable. But where a party fails to

demonstrate a non-adverse witness’s unavailability and attempts to offer that witness’s out-of-

court statements for the truth of the matters asserted, as plaintiff attempts to do here, those

statements must be excluded as inadmissible hearsay. See United States v. Salerno, 505 U.S.

317, 321 (1992) (“Nothing in the language of Rule 804(b)(1) suggests that a court may admit

former testimony absent satisfaction of each of the Rule’s elements.”). Plaintiff has not provided

any “exceptional circumstances” for allowing deposition testimony to be used in lieu of live

testimony, see Fed. R. Civ. P. 32(a)(4)(E), and Congress has not chosen to place an “FLSA

exception” either within that statute or under the Federal Rules of Civil Procedure or the Federal

Rules of Evidence. Consistent with these Rules, plaintiff may only introduce the deposition

testimony of the absent opt-ins if he can establish that those opt-ins are unavailable to provide

live testimony at trial.

CONCLUSION

For the foregoing reasons, plaintiffs [94] motion is granted in part and denied in part.

The testifying opt-ins may offer testimony on behalf of the absent opt-ins at trial, which the jury

may consider as evidence of defendants’ liability and damages as to the absent opt-ins to the

extent the jury finds such testimony sufficiently reliable, convincing, and applicable. But

plaintiff may not introduce the deposition testimony of absent opt-ins, or any other non-adverse

party, unless he first establishes their unavailability pursuant to Rule 32(a)(4).

By separate Order, the Court will set this matter down for a final pretrial conference and

trial.

SO ORDERED.

Busan Wt. Cogan

U.S.D.J.

Dated: Brooklyn, New York

December 20, 2023

13