Cooke v. Frank Brunckhorst Co., LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DENIS COOKE, on behalf of himself and all others

similarly situated,

MEMORANDUM AND

Plaintiff, ORDER

-against-

23-CV-6333

FRANK BRUNCKHORST CO., LLC, (Marutollo, M.J.)

Defendant.

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JOSEPH A. MARUTOLLO, United States Magistrate Judge:

Plaintiff Denis Cooke, a former Systems Support Specialist for a Boar’s Head distribution

facility in Brooklyn, brings this action against his former employer, Defendant Frank Brunckhorst

Co., LLC, on behalf of himself and all other persons similarly situated. See generally, Complaint

(“Compl.”), Dkt. No. 1. Plaintiff alleges that Defendant unlawfully terminated him because of his

disability in violation of the Americans with Disabilities Act (“ADA”), 41 U.S.C. § 12112; New

York State Human Rights Law (“NYSHRL”), New York Executive Law § 296; and New York

City Human Rights Law (“NYCHRL”), New York City Admin. Code §8-107. Id. Plaintiff also

alleges that Defendant failed to remit to Plaintiff and all others similarly situated timely and

complete minimum wage and overtime payments for work performed in violation of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 206 et seq. and New York Labor Law (“NYLL”) §§ 652

et seq. and §§191 et seq. Id.

Currently pending before this Court is Plaintiff’s motion1 seeking, pursuant to 29 U.S.C. §

216(b), (1) conditional certification as an FLSA collective action; (2) court-authorized notice; (3)

expedited discovery; and (4) a grant of equitable tolling. See generally Dkt. Nos. 18-21.

For the reasons stated below, Plaintiff’s motion to conditionally certify a collective class

is GRANTED in part and DENIED in part.

I. Background

The Complaint, exhibits, and declarations filed by Plaintiff establish the following relevant

facts, which are taken as true only for the purposes of this motion. Dkt. Nos. 1, 18-24. See Jun

Hua Yang v. Rainbow Nails Salon IV Inc., No. 18-CV-4970 (DLI) (SJB), 2019 WL 2166686, at

*3 (E.D.N.Y. May 16, 2019).

Plaintiff, a Brooklyn resident, was employed full-time as a Service Support Specialist for

Defendant—a New York domestic liability company with a principal place of business in Florida

that is in the business of providing delicatessen products in the New York City metropolitan area.

See Compl., at ¶¶ 3, 14, 16, 18. Plaintiff began working for Defendant on or about August 2010.

Id. at ¶ 18; see Dkt. No. 20-2, at 2. Plaintiff worked “as an at-will employee who worked as a full-

time Systems Support Specialist for Boar’s Head at the 24 Rock Street, Brooklyn, New York

distribution facility.” Dkt. No. 20-2, at 2. As part of his responsibilities, Plaintiff handled

“customer service, general labor, building maintenance and repair, [] cleaning and material

moving, heavy and light cleaning, and material moving,” among other tasks. Compl., at ¶ 19.

Plaintiff states in his affidavit that his job as a Systems Support Specialist “required a great deal

of manual labor and physical exertion, including but not limited to walking, standing, cleaning,

1 The docketed motion is styled as “First Motion to Certify FLSA Collective Action.”

2

handling, and carrying files, papers, equipment, tools, materials, and supplies.” Dkt. No. 20.

Plaintiff claims that over half his work time was spent on these and other physical tasks. Id.

Unfortunately, while employed by Defendant, Plaintiff suffered a stroke requiring him to

take a leave of absence beginning on June 24, 2018. Compl., at ¶ 22. Plaintiff alleges that as a

result of the stroke and the treatment thereof, his ability to do certain physical tasks was hindered,

including his “inability to go up and down stairs, inability to drive, availability to work only during

daylight hours due to the need to (safely) use public transportation with these limitations, inability

to work in confined spaces, inability to lift or carry more than 10 pounds, inability to climb ladders,

impaired grip and dominant hand mobility, and impaired [his] leg coordination.” Id. at ¶ 23.

Plaintiff admits that Defendant provided “a series of accommodations” following consultation with

Plaintiff’s medical providers—which included, among other accommodations, the ability to work

remotely, a modified schedule (to ensure daytime hours), and a modified physical work space. Id.

at ¶ 24.

On or about August 2020 (or approximately two years following the stroke diagnosis),

Plaintiff returned to a full-time, 8-hour per day schedule—though a number of the

accommodations remained unchanged. Id. at ¶ 26. After Plaintiff requested an updated ADA

Accommodation Form from Defendant on or about February 11, 2021, he alleges that Defendant

“determined unilaterally, and without a change in circumstances, that it could no longer provide

any accommodation that would allow [Plaintiff] to perform the essential functions of his job.” Id.

at ¶¶ 27-28.

On or about March 3, 2021, Defendant notified Plaintiff that it “could no longer meet the

worksite accommodations requested by [his] doctor.” Id. at ¶ 29. Defendant then terminated

Plaintiff’s employment, effective July 2, 2021. Id. at ¶ 30; Dkt. No. 20-2 at 2. Plaintiff alleges

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that he was discriminated against based on his disability or physical condition and was not offered

the opportunity to obtain any other accommodations to remain in his position. Compl., at ¶¶ 31-

35.

In addition to his discrimination claims, Plaintiff also alleges that Defendant failed to remit

timely payments to Plaintiff and other similarly situated employees. Specifically, Plaintiff alleges

that Defendant—throughout the course of Plaintiff’s employment—paid Plaintiff “bi-weekly, and

approximately five (5) days after the end of the second workweek in each bi-weekly pay period.”

Id. at ¶ 40. This payment program allegedly contravenes the FLSA’s prompt payment provisions

as to minimum wage and overtime wages. Id. at ¶ 41; see id. at ¶ 49 (“Defendant is liable under

the FLSA for failing to properly and promptly pay the minimum wage and overtime wages for all

hours worked greater than forty (40) per week. As such, notice should be sent to the FLSA

Collective.”). As discussed further in Part III below, Plaintiff identifies other hourly employees

who, like Plaintiff, were allegedly denied prompt payment of both minimum wage and overtime

compensation during the same time periods, as well as purported documentary evidence in the

form of Plaintiff’s paystubs and Defendant’s admissions. See Dkt. No. 19.

Plaintiff seeks conditional certification of a collective class of “all former and current

hourly workers of Defendant at any point in time between September 1, 2020 and the present.”

Dkt. No. 21-5. As part of his motion, Plaintiff filed a Proposed Notice and a Proposed Consent to

Join Form. Dkt. Nos. 21-3, 21-4. Plaintiff also seeks expedited discovery and requests that the

Court order Defendant to produce “the names, last known addresses, telephone numbers, email

addresses, and dates of employment of all non-exempt employees employed by Defendant for a

period of three years prior to the filing of the Complaint, in a computer-readable format.”

Plaintiff’s Mem. of Law in Supp. of Mot. for Conditional Cert. (“Plaintiff’s Brief”), Dkt. No. 19,

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at 19. Finally, Plaintiff seeks a grant of equitable tolling to “protect the rights of the FLSA

collective.” Id. at 20.

In opposition, Defendant argues four points: (1) conditional certification is not appropriate

in this case; (2) Plaintiff is not similarly situated with the purported collective; (3) Plaintiff’s

Proposed Notice is improper; and (4) equitable tolling is not warranted. See Defendant’s Mem. of

Law in Opp. to the Mot. for Conditional Cert. (“Defendant’s Brief”), Dkt No. 22.

II. Legal Standard

The FLSA was enacted to eliminate “labor conditions detrimental to the maintenance of

the minimum standard of living necessary for health, efficiency, and general well-being of

workers.” Carabajo v. APCO Insulation Co. Inc., No. 22-CV-4175 (PKC) (SJB), 2023 WL

3931618, at *3 (E.D.N.Y. June 9, 2023) (quoting 29 U.S.C. § 202(a)). The statute requires

employers to pay employees an overtime rate for time worked more than 40 hours in a given work

week of “not less than one and one-half times the regular rate at which [they are] employed.” Id.

§ 207. Section 216(b) of the FLSA provides a private right of action to an employee to recover

overtime compensation from an employer who violates the Act’s provisions. Carabajo, 2023 WL

3931618, at *3.

Under the FLSA, plaintiffs may proceed “for and on behalf of himself or themselves and

other employees similarly situated.” 29 U.S.C. § 216(b). This is known as a “collective action.”

See Myers v. Hertz Corp., 624 F.3d 537, 543 (2d Cir. 2010). “A collective action under the FLSA

differs from the typical class action under Rule 23 because a party seeking conditional certification

of a collective action need not demonstrate the Rule 23 requirements of numerosity, commonality,

typicality, and adequacy of representation.” Aleman-Valdivia v. Top Dog Plumbing & Heating

Corp., No. 20-CV-421 (LDH) (MMH), 2021 WL 4502479, at *2 (E.D.N.Y. Sept. 30, 2021)

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(internal citations omitted). Additionally, unlike under a Fed. R. Civ. P. 23 class, members of a

FLSA collective action must affirmatively “opt in” to the action. See Genesis Healthcare Corp.

v. Symczyk, 569 U.S. 66, 74 (2013) (“Under the FLSA[,] ‘conditional certification’ does not

produce a class with an independent legal status, or join additional parties to the action. The sole

consequence of conditional certification is the sending of court-approved written notice to

employees . . .”) (internal citations omitted); Carabajo, 2023 WL 3931618, at *3 (explaining that

in a collective action, to join the suit, a person must “give[ ] [their] consent in writing to become

such a party” and file that consent “in the court in which such action is brought.” ).

Courts in the Second Circuit apply a two-step test to determine whether to approve a

“collective action” under the FLSA. See Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir.

2010). The first step involves “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.” Myers, 624 F.3d at 555.

The first step, generally termed as “conditional certification,”2 which is at issue here,

“generally takes place before any significant discovery”; certification imposes merely a “minimal

burden” on the plaintiff and is satisfied by a showing that the purported class members are

“similarly situated.” Puglisi v. TD Bank, N.A., 998 F. Supp. 2d 95, 99 (E.D.N.Y. 2014) (Brown,

2 As the Second Circuit noted in Myers, “while courts speak of ‘certifying’ a FLSA collective action, it is

important to stress that the ‘certification’ we refer to here is only the district court's exercise of the

discretionary power, upheld in [Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)], to facilitate

the sending of notice to potential class members. Section 216(b) does not by its terms require any such

device, and nothing in the text of the statute prevents plaintiffs from opting in to the action by filing consents

with the district court, even when the notice described in Hoffmann-La Roche has not been sent, so long as

such plaintiffs are ‘similarly situated’ to the named individual plaintiff who brought the action.” Myers,

624 F.3d at 555. “Thus ‘certification’ is neither necessary nor sufficient for the existence of a representative

action under FLSA, but may be a useful ‘case management’ tool for district courts to employ in ‘appropriate

cases.’” Id. (citing Hoffmann-La Roche, 493 U.S. at 169, 174).

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J.). The analysis requires a “modest factual showing that they and potential opt-in plaintiffs

together were victims of a common policy or plan that violated the law.” Myers, 624 F.3d at 555

(internal quotation marks omitted). If the Court grants conditional certification to proceed as a

collective action, putative collective action members may “opt in” to the action. Rafter v. Everlast

Sign & Serv. Inc., No. 21-CV-4588 (NRM) (LGD), 2023 WL 7687261, at *4 (E.D.N.Y. Apr. 13,

2023).

“The second step of the collective action inquiry typically follows the completion of

discovery and requires the court to examine the evidentiary record to determine whether the opt-

in plaintiffs are, in fact, similarly situated.” Aleman-Valdivia, 2021 WL 4502479, at *2 (citing

Bifulco v. Mortg. Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009)); see also Myers, 624 F.3d at

555 (explaining that the second step involves an evaluation “on a fuller record . . . 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.”). If the court determines that the opt-in

plaintiffs are not in fact similarly situated, the class is decertified, and the opt-in plaintiffs’ claims

are dismissed without prejudice. Aleman-Valdivia, 2021 WL 4502479, at *2 (citations omitted).

“In considering the first step, 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.’”

Hunter v. Next Level Burger Co., Inc., No. 23-CV-03483 (HG), 2024 WL 686929, at *2 (E.D.N.Y.

Feb. 20, 2024) (quoting Myers, 624 F.3d at 555). A plaintiff is “not required to show an actual

FLSA violation at this stage, but rather only that a factual nexus exists between the plaintiff's

situation and the situation of other potential plaintiffs.” Calderon v. King Umberto, Inc., 892 F.

Supp. 2d 456, 459 (E.D.N.Y. 2012) (internal quotation marks omitted). “In making this showing,

nothing more than substantial allegations that the putative class members were together the victims

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of a single decision, policy or plan is required.” Zaldivar v. JMJ Caterers, Inc., 166 F. Supp. 3d

310, 317 (E.D.N.Y. 2016) (internal citations omitted). Documents that may be considered to

establish such a showing include “plaintiffs’ own pleadings, affidavits, declarations, or the

affidavits and declarations of other potential class members.” Chicas v. Kelco Constr., Inc., No.

21-CV-09014 (PAE) (SDA), 2023 WL 2072026, at *2-3 (S.D.N.Y. Feb. 19, 2023).

“When applying this lenient evidentiary standard, a court evaluates pleadings and

affidavits, but does not resolve factual disputes, decide substantive issues going to the ultimate

merits, or make credibility determinations.” Singh v. Anmol Food Mart, Inc., No. 22-CV-5475

(RER) (JAM), 2024 WL 308241, at *2 (E.D.N.Y. Jan. 26, 2024); see also Lynch v. U.S. Auto.

Ass’n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007) (“At this procedural stage, the court does not

resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility

determinations. Indeed, a court should not weigh the merits of the underlying claims in

determining whether potential opt-in plaintiffs may be similarly situated.”). “[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). In

determining whether members of an action are similarly situated, “district courts typically review

several factors, including (1) the disparate factual and employment settings of the individual

plaintiffs; (2) the various defenses available to the defendant which appear to be individual to each

plaintiff; and (3) fairness and procedural considerations.” McGlone v. Contract Callers, Inc., 49

F. Supp. 3d 364, 367 (S.D.N.Y. 2014) (citation omitted).

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III. Discussion

A. Conditional FLSA Collective Certification is Warranted

Plaintiff has met his minimal burden of showing that the potential opt-in class members

are similarly situated for the purposes of conditional certification. Jenkins v. TJX Companies Inc.,

853 F. Supp. 2d 317, 320 (E.D.N.Y. 2012).

At the first step of the collective action process, “courts have held that plaintiffs can meet

this burden 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.” Hoffmann v.

Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.) (“[T]he purpose of this first

stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist.”). Key to this

showing is whether Plaintiff “provide[s] actual evidence of a factual nexus between their situation

and those that they claim are similarly situated rather than mere conclusory allegations.”

Carabajo, 2023 WL 3931618, at *3 (quoting Qing Gu v. T.C. Chikurin, Inc., No. 13-CV-2322,

2014 WL 1515877, at *3 (E.D.N.Y. Apr. 17, 2014)). At the conditional certification stage, “the

burden is so low that even one or two affidavits establishing the common plan may suffice.” Jeong

Woo Kim v. 511 E. 5th St., LLC, 985 F. Supp. 2d 439, 445-46 (S.D.N.Y. 2013).

Here, Plaintiff has made a sufficient showing here for conditional certification. Plaintiff

seeks conditional certification of a collective of “all former and current hourly workers of

Defendant at any point in time between September 1, 2020 and the present.” Dkt. No. 21-5.

Plaintiff seeks to certify a collective under the FLSA’s “prompt payment requirement,” alleging

non-prompt payment of minimum wages and overtime for at least the first week in each bi-weekly

pay period, thereby violating the FLSA. See Dkt. No. 24 (citing Rogers v. City of Troy, N.Y., 148

F.3d 52, 55 (2d Cir. 1998) (citing United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487,

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491 (2d Cir. 1960) (“While the FLSA does not expressly set forth a requirement of prompt

payment, such a requirement is clearly established by the authorities . . .”).

Plaintiff alleges that he was a “manual worker” for Defendant in New York City, and

therefore, under New York Labor Law § 191(1)(a), he was required to be paid on a weekly basis.

See Dkt. No. 19; Caul v. Petco Animal Supplies, Inc., No. 20-CV-3534 (RPK) (SJB), 2021 WL

4407856, at *2 (E.D.N.Y. Sept. 27, 2021) (“Section 191(1)(a) states that ‘[a] manual worker shall

be paid weekly and not later than seven calendar days after the end of the week in which the wages

are earned” unless the Commissioner of the New York Department of Labor has ‘authorized’ the

employer to pay the worker less frequently.’”) (citing New York Labor Law § 191(1)(a)). “Section

191 permits a manual worker to bring a civil action for delayed payment of wages—even if the

wages have subsequently been paid.” Caul, 2021 WL 4407856, at *2.3

3 As the Court in Caul explains,

When deciding a question of state law like this one, a federal court “look[s] to the

state’s decisional law, as well as to its constitution and statutes.” Chufen Chen v. Dunkin’

Brands, Inc., 954 F.3d 492, 497 (2d Cir. 2020) (citation omitted). Absent a clear directive

from a state’s highest court, a federal court must “predict how the state’s highest court

would resolve the uncertainty or ambiguity.” Id. at 499 (citation omitted). In doing so, the

federal court “is bound to apply the law as interpreted by a state’s intermediate appellate

courts unless there is persuasive evidence that the state’s highest court would reach a

different conclusion.” V.S. v. Muhammad, 595 F.3d 426, 432 (2d Cir. 2010).

Here, a state intermediate court—the Appellate Division’s First Department—has

held that New York Labor Law permits employees to seek liquidated damages for the

untimely payment of wages, even if wages are no longer past due. Vega v. CM & Assocs.

Constr. Mgmt., LLC, 175 A.D.3d 1144 (N.Y. App. Div. 2019). The First Department

reasoned that “[Section] 198(1-a) expressly provides a private right of action for a violation

of [Section] 191.” Id. at 1146. It further concluded that Section 198(1-a) allows an award

of damages based on untimely payments even if the employer had “pa[id] the wages that

[we]re due before the commencement of [the] action.” Id. at 1145. The court reasoned that

an “underpayment” for purposes of Section 198(1-a) occurs “[t]he moment that an

employer fail[s] to pay wages in compliance with [S]ection 191(1)(a).” Ibid. While an

employer who eventually pays the underpaid wages can “assert an affirmative defense”

based on the eventual payment, the First Department concluded that an employee could

still seek “statutory remedies,” including liquidated damages. Ibid. The appellate court

found instructive the Supreme Court's conclusion in Brooklyn Sav. Bank v. O’Neil, 324

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In support of his assertion that he was a manual worker, Plaintiff explains in his affidavit

that his job as a Systems Support Specialist “required a great deal of manual labor and physical

exertion, including but not limited to walking, standing, cleaning, handling, and carrying files,

papers, equipment, tools, materials, and supplies.” Dkt. No. 20. Plaintiff claims that over half his

work time was spent on these and other physical tasks. Id.

Plaintiff also identifies two other hourly employees of Defendant—Brian Cruz and Alex

Nagimov—whom Plaintiff claims also have been denied prompt payment of both minimum wage

and overtime compensation during the same time period at issue. See Affidavit of Denis Cooke,

Dkt. No. 20 (“Cooke Aff.”) at ¶¶ 3-9; see Compl. ¶¶ 3-5, 40-43. Plaintiff claims that Mr. Cruz

and Mr. Nagimov “had the same post of duty as [Plaintiff], same job title, performed the same job

tasks, and worked similar hours also at Defendant’s direction and control.” Cooke Aff. ¶ 8.

Plaintiff claims that Mr. Cruz and Mr. Nagimov were also paid by Defendant bi-weekly; Plaintiff

alleges to have confirmed this information via observing some of their timesheets and paystubs.

Id. ¶ 9.

Plaintiff also points to “documentary evidence in the form of Plaintiff’s paystubs and

Defendant’s admissions” to support his allegations that members of the putative collective are

U.S. 697, 707 (1945). That Supreme Court decision interpreted a similarly worded

provision in the [FLSA] to allow an employee to recover liquidated damages “regardless

of whether an employee has been paid wages owed before the commencement of the

action.” Vega, 175 A.D.3d. at 1145-46.

Since Vega, every court in this Circuit to consider that decision appears to have

followed its construction of the New York Labor Law, see, e.g., Mabe v. Wal-Mart Assocs.,

Inc., No. 1:20-cv-00591, 2021 WL 1062566, at *5 (N.D.N.Y. Mar. 18, 2021); Sorto v.

Diversified Maint. Sys., LLC, No. 20-CV-1302(JS)(SIL), 2020 WL 7693108, at *2-3

(E.D.N.Y. Dec. 28, 2020); Duverny v. Hercules Medical P.C., No. 18-CV-07652 (DLC),

2020 WL 1033048, at *5-6 (S.D.N.Y. Mar. 3, 2020); Scott v. Whole Foods Mkt. Grp., Inc.,

No. 18-CV-0086 (SJF) (AKT), 2020 WL 9814095, at *3 (E.D.N.Y. Feb. 5, 2020).

Caul, 2021 WL 4407856, at *2.

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similarly situated. Dkt. No. 19. Plaintiff points to a letter from Defendant to the Equal

Employment Opportunity Commission (“EEOC”), dated July 22, 2024, in which they note that

Plaintiff and other similar employees were, inter alia, “required to work varying hours, including

overnight shifts and weekends as needed”; and “travel as necessary for training and on-site

systems.” Dkt. No. 20-2 at 2-3; see Dkt. No. 20-3 (showing Plaintiff’s paystubs). In the same

letter, Plaintiff highlights the work requirements of Plaintiff’s position, which includes installing

various computer networks and systems. Dkt. No. 20-2.

At bottom, Plaintiff states in his affidavit that “[d]uring the entirety of [his] tenure in

Defendant’s employ, Defendant paid [Plaintiff] on an hourly basis, paid [his] wages bi-weekly and

five (5) days after the end of the second week in each pay period; and on information and belief,

paid many of its other similar workers with the same frequency.” Dkt. No. 20.

Plaintiff has therefore established—at least for purposes of this motion—that while

employed by Defendant, he and other similarly situated employees were subject to a policy that

ran afoul of the FLSA: the practice of failing to remit prompt and timely payment as required by

the FLSA’s prompt payment provision. Plaintiff’s affidavit establishes a “factual nexus” between

his claims and those of other employees under the lenient certification standard. Santiago v.

Cuisine By Claudette, LLC, No. 23-CV-2675 (OEM) (JAM), 2023 WL 8003323, at *3 (E.D.N.Y.

Nov. 17, 2023) (quoting Jibowu v. Target Corp., 492 F. Supp. 3d 87, 122 (E.D.N.Y. 2020)).

Defendant raises a number of objections to the proposed certification. As an initial matter,

Defendant argues that Plaintiff’s claims are not subject to collective treatment under the FLSA

because Plaintiff has not shown “Defendant violated the FLSA’s prompt payment requirement

solely by virtue of its implementation of a lawful biweekly payroll schedule.” See Defendant’s

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Opp., at 9.4 In response, Plaintiff argues that “[t]o be clear, if Plaintiff was a ‘manual worker,’

Defendant was required to pay weekly under Labor Law § 191 and its failure to do so promptly

after each week operates as both failure to pay promptly under the FLSA and NYLL, and as a

deduction to wages under Labor Law § 193, which is also pleaded in the case at bar.” Dkt. No.

24, at 4-5. But, as Plaintiff correctly points out, whether any prompt payment requirement was

violated is a merit-based determination not ripe for adjudication at this stage. Plaintiff’s Reply in

Supp. of Mot. for Conditional Cert., Dkt. No. 24, at 3-4. The only issue here is whether conditional

certification is warranted. Id. Indeed, Defendant cites to cases involving motions to dismiss or

motions for summary judgment, rather than motions for conditional certification. See, e.g.,

Defendant’s Opp., at 7-8 (citing Conzo v. City of New York, 667 F. Supp. 2d 279, 288-89 (S.D.N.Y.

2009) and Sarit v. Westside Tomato, Inc., No. 18-CV-11524 (RA), 2020 WL 1891983, at *5-6

(S.D.N.Y. Apr. 16, 2020)).

Additionally, Defendant asserts that “the roles occupied by employees at [Defendant’s]

Brooklyn Facility vary greatly among the different departments.” Defendant’s Opp., at 17.

Specifically, Defendant argues that “[t]here are at least a dozen broad categories of employee

working at the Brooklyn Facility . . .” Id. As the department were “comprised of both union and

non-union employees, hourly non-exempt employees, and salaried exempt employees,” Defendant

asserts that Plaintiff’s role as a “non-union, hourly IT person” is an “exceedingly narrow subset of

the positions available at the Brooklyn Facility.” Id. at 18.

But this argument is unavailing. “[P]otential members of a proposed collective need not

be identical in every respect so long as all are similarly subject to the same unlawful policy or

practice.” Zimnicki v. Krysiak Constr. Corp., No. 21-CV-04634 (RPK) (JRC), 2022 WL

4 Citations are to the ECF-numbered pages.

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17820139, at *8 (E.D.N.Y. Sept. 27, 2022) (citing Taveras v. D & J Real Est. Mgmt. II, LLC, 324

F.R.D. 39, 41 (S.D.N.Y. 2018)). Indeed, “different job titles may be included within a conditional

collective if there is evidence that plaintiffs may be similarly situated as to a common policy to

violate the FLSA.” Taveras, 324 F.R.D. at 41. “Courts in this district and elsewhere routinely

reject attempts to limit certification based on job function.” Mendoza v. Little Luke, Inc., No. 14-

CV-3416 (JS) (AYS), 2015 WL 5918580, at *3 (E.D.N.Y. Oct. 9, 2015) (collecting cases). As

noted above, the focus at the initial certification stage “is on the issue of whether the Plaintiffs

were the victims of a common policy or plan which violated the law—and less so on whether the

Plaintiffs performed identical job functions.” Cohan v. Columbia Sussex Mgmt., LLC, No. 12-

CV-3203 (JS) (AKT), 2013 WL 8367807, at *4 (E.D.N.Y. Sept. 19, 2013) (granting conditional

certification where the plaintiffs “submitted evidence which suggests that the allegedly improper

overtime policy was not limited to banquet servers, but rather was applied to all service

employees”); see also Rosario v. Valentine Ave. Disc. Store, Co., Inc., 828 F. Supp. 2d 508, 517

(E.D.N.Y. 2011) (“It is not necessary for the purposes of conditional certification that the

prospective class members all performed the same duties, or worked during the same time periods,

or worked at the same locations as the named plaintiffs.”). Accordingly, “[i]n the Second Circuit,

courts routinely find employees similarly situated ‘despite not occupying the same positions or

performing the same job functions and in the same locations, provided that they are subject to a

common unlawful policy or practice.’” Guaman v. 5 M Corp., No. 13-CV-3820 (LGS), 2013 WL

5745905, at *4 (S.D.N.Y. Oct. 23, 2013) (quoting Summa v. Hofstra Univ., 715 F. Supp. 2d 378,

390 (E.D.N.Y. 2010)).

Additionally, to the extent that Defendant seeks to point to union membership as a

distinguishing factor, other courts have agreed to certify both union and non-union employees

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upon a finding that the employees were nonetheless subject to the same unlawful policy. See e.g.,

Maldonado v. Arcadia Bus. Corp., No. 14-CV-4129 (DLI) (RML), 2015 WL 1914933, at *2

(E.D.N.Y. Apr. 27, 2015) (granting conditional certification “where both union and non-union

employees were ‘improperly paid in cash by [Academic] . . . [and] [a]s with the nonunion

employees, many of the union employees were not paid overtime.’”) (quotations in original).

Notwithstanding Defendant’s arguments about specific job functions, work sites, and employee

positions, the Court finds that Plaintiff has made a modest factual showing that he and the potential

collective action members are victims of a common compensation practice that violates the FLSA,

and thus are similarly situated.

Defendant also takes issue with Plaintiff’s failure to “provide any detail regarding the

conversations he had with [Mr. Cruz and Mr. Nagimov], such as the positions of these co-workers,

the dates of these conversations, or any details surrounding the conversations.” Defendant’s Opp.,

at 14. Plaintiff, however, is not required to specifically state that a detailed conversation took

place between specific employees in order to meet his burden. See Hunter, 2024 WL 686929, at

*2 (finding that a plaintiff’s supported and corroborated observations were sufficient at the first

state of conditional certification); see also Diaz v. Weinstein Landscaping, No. 19-CV-06050

(JMA) (ST), 2022 WL 801493, at *3 (E.D.N.Y. Feb. 28, 2022), report and recommendation

adopted, 2022 WL 801322 (E.D.N.Y. Mar. 16, 2022) (“[By] providing names of co-workers

through Defendant Weinstein’s testimony, Diaz has offered facts that push the allegations beyond

conclusory, which would allow the Court to test those assertions and would give Defendants the

ability to contest them.”); cf. Shibetti v. Z Restaurant, 18-CV-856 (ERK) (ST), 2019 WL 11623937

at 3-4 (E.D.N.Y. Sept. 3, 2019) (denying certification because plaintiff but did not “provide any

names, dates, or circumstances to give a factual basis for their statements). As noted above,

15

Plaintiff affirms that these former co-workers “had the same post of duty as [Plaintiff], same job

title, performed the same job tasks and worked similar hours also at Defendant’s direction and

control.” Cooke Aff. ¶ 8.

To conditionally certify a collective action, “the burden is so low that even one or two

affidavits establishing the common plan may suffice.” Kim v. 511 E. 5th St., LLC, 985 F. Supp.

2d 439, 445–46 (S.D.N.Y. 2013). This is true even when the declarations are “somewhat thin on

details.” Lubas v. JLS Grp., Inc., No. 18-CV-6611 (KAM) (SJB), 2020 WL 4210754, at *7

(E.D.N.Y. July 22, 2020) (“such proof is sufficient to meet the low factual threshold for FLSA

collective certification”); see also Placinta v. Grazina Pilka, Inc., No. 16-CV-4272 (KAM)(SJB),

2018 WL 5024170, at *9, *14 (E.D.N.Y. Oct. 5, 2018) (granting motion for conditional

certification where there were multiple affidavits corroborating plaintiffs’ statements even though

the factual record proffered was “ultimately quite thin on facts”). Courts in this Circuit have

conditionally certified FLSA collectives based only on a plaintiff’s detailed affidavit about his

working conditions and those of his colleagues. Miranda v. Gen. Auto Body Works, Inc., No. 17-

CV-4116 (AMD) (RER), 2017 WL 4712218, at *2 (E.D.N.Y. Oct. 18, 2017) (“[T]here are

numerous examples of courts in this Circuit granting conditional certification based on the

pleadings and a single affidavit by the plaintiff.”); Hernandez v. Bare Burger Dio Inc., No. 12-

CV-7794 (RWS), 2013 WL 3199292, at *3 (S.D.N.Y. June 25, 2013) (“[C]ourts in this circuit

have routinely granted conditional collective certification based solely on the personal

observations of one plaintiff’s affidavit.”) (collecting cases); see also Yi Mei Ke v. JR Sushi 2 Inc.,

No. 19-CV-7332 (PAE) (BCM), 2021 WL 148751, at *8 (S.D.N.Y. Jan. 15, 2021) (certifying

collective based on plaintiff’s two affidavits that “adequately described conversations with other

employees of JR Sushi concerning their wages”), aff’d, 2021 WL 465359, at *3 (Feb. 9, 2021).

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Finally, Defendant’s remaining argument invites the Court to determine whether an

individual employee is a manual worker within the meaning of the NYLL as “Plaintiff’s FLSA

claim arises out of his contention that he was a manual worker within the meaning of the NYLL.”

Defendant’s Opp., at 21-22. The Court declines to do so at this time, as, again, this determination

is an issue on the merits not ripe for adjudication at the conditional certification stage of this

litigation. See Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 322 (S.D.N.Y. 2007)

(collecting cases explaining that district courts must not resolve factual disputes or resolve issues

that go to the merits of plaintiffs’ claims at the conditional certification stage); Martinez v. Zero

Otto Nove Inc., No. 15-CV-899 (ER), 2016 WL 3554992, at *4 n.3 (S.D.N.Y. June 23, 2016)

(noting that defendants’ efforts to “challeng[e] the factual accuracy of Plaintiffs’ allegations” were

“futile” at conditional certification stage); Zhao v. Benihana, Inc., No. 01-CV-1297 (KMW), 2001

WL 845000, at *2 (S.D.N.Y. May 7, 2001) (noting that court “need not evaluate the merits of

plaintiff’s claims” in deciding whether to grant conditional certification).

Therefore, the Court finds that Plaintiff has met his burden to demonstrate that putative

collective action members are similarly situated and orders the conditional certification of the

collective FLSA action.

B. The Proposed Notice and Notice Period

Plaintiff requests that this Court authorize him to mail a Notice, Consent to Join Form, and

a postage pre-paid return envelope (together, the “Notice Package”) to “all former and current

hourly workers of Defendant at any point in time between September 1, 2020 and the present.”

Dkt. No. 21-5. Plaintiff also requests this Court compel Defendant to post the Notice at its New

York workplace(s). Id. Plaintiff finally requests the Court’s permission to send the Notice

Package to the potential opt-in class members via text message. Plaintiff’s request is granted.

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Although § 216(b) does not “expressly provide for court-authorized notice to potential opt-

in plaintiffs in a collective action, ‘it is well settled’ that district courts have the power to authorize

an FLSA plaintiff to send such notice.” Damassia v. Duane Reade, Inc., No. 04-CV-8819 (GEL),

2006 WL 2853971, at *2 (S.D.N.Y. Oct. 5, 2006) (quoting Hoffmann, 982 F. Supp. at 260). The

FLSA, however, does not contain a certification requirement; “[o]rders authorizing notice are often

referred to as order ‘certifying’ a collective class.” Id. at 2 (citing Lee v. ABC Carpet & Home,

236 F.R.D. 193, 197 (S.D.N.Y. 2006)). District “courts maintain discretion to craft appropriate

notices that effectuate the overarching policies of the collective suit provisions and provide

employees with accurate and timely notice concerning the pendency of the action, so that they can

make informed decisions about whether to participate.” Hernandez v. Immortal Rise, Inc., No. 11-

CV-4360 (RRM) (LB), 2012 WL 4369746, at *6 (E.D.N.Y. 2012) (internal quotation marks

omitted) (citing Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007)).

Plaintiff has provided a proposed Notice for the Court’s review and endorsement. Dkt. No.

40-2. “Courts have broad discretion to craft appropriate notices that effectuate the overarching

policies of the collective suit provisions and provide employees with accurate and timely notice

concerning the pendency of the collective action, so that they can make informed decisions about

whether to participate.” Hunter, 2024 WL 686929, at *3 (quoting Hernandez v. Immortal Rise,

Inc., No. 11-CV-4360, 2012 WL 4369746, at *6 (E.D.N.Y. Sept. 24, 2012)).

As a threshold matter, Defendant objects to the proposed Notice as improper. Specifically,

Defendant argues that: (1) the relevant time period in this lawsuit “should be two years”; (2) that

the language in the proposed notice “must be modified to reflect judicial neutrality,” and (3) the

Notice should include language advising putative class members that “they may be responsible

court costs if the claim is unsuccessful.” Defendant’s Opp., at 25-26. The Court will address each

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of Defendant’s contentions in turn.

First, the statute of limitations for a FLSA violation is two years, except when the violations

are willful, in which case the statute of limitations is extended to three years. 29 U.S.C. § 255(a).

Plaintiff alleges willful conduct against Defendant. See, e.g., Compl., at ¶¶ 44, 89, 95, 101. “At

the conditional certification stage, allegations of willful conduct are sufficient to apply the three-

year statute of limitations for purposes of certifying the class.” Jie Zhang v. Wen Mei, Inc., No.

14-CV-1647 (JS) (SIL), 2015 WL 6442545, at *5 (E.D.N.Y. Oct. 23, 2015); see also Patton v.

Thomson Corp., 364 F. Supp. 2d 263, 268 n. 2 (E.D.N.Y. 2005) (finding allegation of willful

violation justified notice based on a three-year statute of limitations period). “As the Complaint

contains allegations of willful conduct by Defendants, the Court finds it appropriate to apply the

three-year statute of limitations under the FLSA at this stage of the proceedings.” Valerio v. RNC

Indus., LLC, 314 F.R.D. 61, 74 (E.D.N.Y. 2016).

Indeed, the Court notes that the recent trend “is to ‘approve three-year notice periods to

avoid the confusion caused by notifying plaintiffs who potentially have two disparate claims with

different statutes of limitations, along with the inefficiency of providing notice to plaintiffs whose

claims may well be time-barred.’” Gurrieri v. County of Nassau, No. 16-CV-6983 (ADS) (SIL),

2019 WL 2233830, at *8 (E.D.N.Y. May 23, 2019) (quoting Mongiove v. Nate’s Corp., No. 15-

CV-1024 (NGG) (RML), 2016 WL 590460, at *6 (E.D.N.Y. Feb. 11, 2016)); McBeth v. Gabrielli

Truck Sales, Ltd., 768 F. Supp. 2d 396, 400 (E.D.N.Y. 2011) (“[W]hile ‘[n]otice to all former

employees, going back six years, has been authorized where plaintiffs seek relief under both the

FLSA and the New York Labor Law,’ the growing trend in this district appears to be limiting the

notice period to three years.” (citations omitted)). As some district courts have noted, “[i]t would

be confusing to employees who are ineligible for the FLSA opt-in [collective] to receive the opt-

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in notice, which does not relate to any state law claims. Further, while a class for the state law

claims may someday be certified, it is an opt-out, not an opt-in, class, so there is no danger of claim

lapse.” Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 668 (S.D.N.Y. 2013).As to whether a two-

year or three-year notice should apply under FLSA, “at the conditional certification stage, a

plaintiff need not provide evidence sufficient to establish willfulness in order for the three-year

period to be utilized for notification purposes.” Slamna v. API Rest. Corp., No. 12-CV-757, 2013

WL 3340290, at *4 (S.D.N.Y. July 2, 2013). “If appropriate, this Court can revisit any statute of

limitations questions at a later stage.” Raimundi v. Astellas U.S. LLC, No. 10-CV-5240, 2011 WL

5117030, at *2 (S.D.N.Y. Oct. 27, 2011). As a result, at this stage, it is appropriate to permit

conditional certification for a three-year period. Should Plaintiff fail to demonstrate that

Defendant acted willfully, employee claims can be limited. Therefore, the proposed Notice

correctly asserts a three-year time frame.

The three-year period, however, shall commence from the date of the filing of the

Complaint (August 23, 2023) looking backwards—not the date of this Court’s order through the

present. See, e.g., Raimundi, 2011 WL 5117030, at *2 (granting a notice period from three years

prior to the filing of the complaint through the entry of the Court's order granting conditional

certification); Lubas v. JLS Grp., Inc., No. 18-CV-6611, 2020 WL 4210754, at *12 (E.D.N.Y. July

22, 2020) (same). In light of the above, the Court finds that the proposed collective should be

composed of all former and current hourly workers of Defendant at any point in time between

August 23, 2020 and August 23, 2023. Plaintiff is directed to modify all relevant documents in

the Notice Package and resubmit a revised proposed Notice for the Court’s approval.

Second, Defendant asserts that “the language in the proposed notice is unnecessarily biased

and must be modified to reflect judicial neutrality.” Defendant’s Opp., at 25. Specifically,

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Defendant argues that, to ensure neutrality, the Notice should be modified to remove “a heading

bearing the name of this Court or the caption of this case.” Id. at 25-26. Defendant cites to a

Northern District of California case which noted that “including the full caption may give a false

impression of judicial endorsement of Plaintiffs’ position where none exists.” Id. (citing Prentice

v. Fund for Pub. Interest Research, Inc., C-06-776SC, 2007 WL 2729187 (N.D. Cal. Sept. 18,

2007). But this Court is not persuaded by the Prentice case. Indeed, another district within the

Second Circuit has previously declined to follow Prentice’s argument on judicial neutrality. See

Boice v. M+W U.S., Inc., No. 14-CV-505 (GTS) (CFH), 2016 WL 11476964, at *9 (N.D.N.Y.

Sept. 7, 2016) (finding that it is “unlikely that the potential plaintiffs will believe that the Court or

its judges endorse plaintiff’s position by including the Court’s caption on the notice, and, thus,

declin[ing] to remove the caption from the proposed notice.”). Additionally, the Court notes that

any confusion to the potential plaintiffs can be cured by the fact that the Notice plainly states that

“[t]his notice is not intended to express any opinion by the Court as to the merits of any claim or

defense raised by the parties to the lawsuit.” Dkt. No. 21-3, at 1. Therefore, the Court declines to

order that the Notice be modified to remove the caption.

Third, Defendant argues that the Notice should include language advising putative class

members that “they may be responsible court costs if the claim is unsuccessful.” Defendant’s

Opp., at 25-26. The Court disagrees. Case law supports the addition of language regarding

potential plaintiffs’ potential liability for costs only where defendants show an intention to bring

counterclaims. See Fengler v. Crouse Health Sys., Inc., 634 F. Supp. 2d 257, 262 (N.D.N.Y. 2009)

(finding that it was “clear error” to approve a Notice containing language pertaining to potential

liability for costs and damages where defendants had not asserted any counterclaims and had no

intention of filing counterclaims); Guzman v. VLM, Inc., 07-CV-1126 (JG) (RER), 2007 WL

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2994278, at *8 (E.D.N.Y. Oct. 11, 2007) (finding that it was “inappropriate” to include language

notifying potential plaintiffs of responsibility for costs where costs of absent class members would

be de minimis and defendants failed to show the likelihood of “meaningful” counterclaims). Here,

it does not appear that Defendant has raised counterclaims, nor does Defendant argue that they

intent do raise them. Thus, the Court finds inclusion of language regarding potential liability for

court costs unnecessary.

As to Plaintiff’s request to disseminate the Notice Package via text message, this request

is granted. See Santiago, 2023 WL 8003323, at *6 (citing Wang v. Kirin Transportation Inc., No.

20-CV-5410 (KAM) (TAM), 2022 WL 79155, at *15 (E.D.N.Y. Jan. 7, 2022) (finding that

dissemination of the notice by mail, email, and text message is appropriate).

As to Plaintiff’s request that the Notice be posted Defendant’s facilities, this request is

granted. “Courts routinely approve requests to post notice on employee bulletin boards and in

other common areas, even where potential members will also be notified by mail.” Whitehorn v.

Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 449 (S.D.N.Y. 2011) (citations omitted);

Ballast v. Workforce7 Inc., No. 20-CV-3812 (ER), 2021 WL 5999202, at *9 (S.D.N.Y. Dec. 20,

2021). Therefore, the Court agrees that posting the notice in a public place at Defendant’s facilities

is appropriate.

As to Plaintiff’s unopposed request for a sixty (60) day opt-in period, this request is also

granted. The Court agrees that this is a reasonable period of time, see Whitehorn, 767 F. Supp. 2d

at 451–52; however, because the dates collective members may receive the notice form by mail

are likely to vary, the Court directs the parties to meet and confer as to a schedule for dissemination

of notice, including a deadline by which consent forms must be filed.

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Accordingly, by March 29, 2024, the parties are to meet and confer in good faith, and by

April 1, 2024, the parties shall submit a revised Proposed Notice and consent form that complies

with the directives set forth herein;

C. Expedited Discovery Request

Plaintiff also requests that the Court require Defendant to produce, within ten (10) days, a

computer-readable data file containing the full names, current home address or last known address,

cell phone number, work and personal email addresses, social security number, and dates of

employment with job titles of the individuals composing the putative class. Dkt. No. 21-5, at 1.

Plaintiff’s request is granted in part and denied in part.

“Courts in this District commonly grant requests for the production of names, mailing

addresses, email addresses, telephone numbers, and dates of employment in connection with the

conditional certification of a FLSA collective action.” Lovelace v. Land Appliance Servs., Inc.,

18-CV-6892 (DLI) (ST), 2020 WL 8921382, at *7 (E.D.N.Y. Jan. 3, 2020) (quoting Benavides v.

Serenity Spa NY Inc., 166 F. Supp. 3d 474, 488 (S.D.N.Y. 2016)), report and recommendation

adopted, 2020 WL 8921381 (E.D.N.Y. Mar. 31, 2020); see also Tate v. WJL Equities Corp., No.

13-CV-8616, 2014 WL 2504507, at *2 (S.D.N.Y. June 3, 2014) (“Courts in this Circuit have held

that disclosure of employee contact information is relevant and appropriate in connection with

conditional collective action certification.”). Moreover, courts have required that the contact

information of potential FLSA collective members be produced in computer-readable formats

whenever possible. See Mei Rong Du v. Dingxiang Inc., 19-CV-11924 (JPO) (BCM), 2020 WL

7404984, at *13 (S.D.N.Y. Dec. 17, 2020) (ordering defendants to produce contact information

“in [E]xcel, if possible”); Jacob v. Duane Reade., Inc., No. 11-CV-0160 (JPO), 2012 WL 260230,

at *10 (S.D.N.Y. Jan. 27, 2012) (granting plaintiffs’ request that defendants produce contact

23

information in Microsoft Excel file); Jackson, F.R.D. 152, at 170 (ordering the defendant to

provide identification information in “electronically readable format.”). Therefore, Defendant

shall produce a computer-readable data file containing full names, current home addresses or last

known addresses, cell phone numbers, and work and personal email addresses.

Defendant shall also include job titles and dates of employment for the covered employees

produced in the data file. Defendant has not indicated that production of the requested information

would be either “unduly burdensome [or] disruptive” and the Court sees no reason why this would

be the case. Jacob, 2012 WL 260230, at *10 (ordering defendants to provide contact information

because such information “would be neither unduly burdensome nor disruptive”). Moreover, the

Court notes that such production would aid in “facilitat[ing] the speedy collection of data . . . [and]

the opt-in process.” Whitehorn v. Wolfgang’s Steakhouse, Inc., 2010 WL 2362981, at *3

(S.D.N.Y.2010). Therefore, Defendant is directed to produce job titles and dates of employment

for the covered employees produced in the computer-readable data file.

The Court, however, declines to compel Defendant to produce social security numbers.

Courts are reluctant to authorize disclosure of private information, such as social security numbers,

in the first instance and without a showing that the information is necessary for the plaintiff to

notify potential opt-ins of the collective action. See, e.g., Jie Zhang v. Wen Mei, Inc., No. 14-CV-

1647 (JS) (SIL), 2015 WL 6442545, at *7 (E.D.N.Y. Oct. 23, 2015) (granting the plaintiffs’ request

for a list of the names, addresses, phone numbers, last known email addresses, work locations, and

dates of employment for potential plaintiffs, but declining request for social security numbers

because the plaintiffs “have not established a particularized need” for this information); Velasquez

v. Digital Page, Inc., No. 11-CV-3892 (LDW) (AKT), 2014 WL 2048425, at *15 (E.D.N.Y. May

19, 2014) (directing the defendants to provide the plaintiffs with a list of the names, addresses,

24

telephone numbers, email addresses, and dates of employment for all potential class members, but

not their dates of birth and social security numbers); Brabham v. Mega Tempering & Glass Corp.,

No. 13-CV-54 (JG), 2013 WL 3357722, at *8 (E.D.N.Y. July 3, 2013) (“The purpose of the

production of potential opt-in plaintiffs is to enable Plaintiffs to notify them of the collective action

. . . The production of names, addresses, phone numbers and email addresses plainly serves that

purpose, while birth dates and Social Security numbers are not necessary for Plaintiffs to perform

their notification task.”) (internal citation omitted); Rosario v. Valentine Ave. Disc. Store, Co., 828

F. Supp. 2d 508, 522 (E.D.N.Y. 2011) (“In light of the privacy concerns regarding employees’

dates of birth and social security numbers, the production of such information is unnecessary at

this juncture. If plaintiff is unable to effectuate notice on some potential opt-in plaintiffs with the

information that is produced, plaintiff may renew his application for additional information

regarding those specific employees.”). Therefore, Defendant shall not produce the social security

numbers of the putative class members.

Accordingly, by April 15, 20245, Defendant shall produce to Plaintiff, in computer

readable format, the full names, current home address or last known address, cell phone number,

work and personal email addresses, and dates of employment with job titles of all former and

current hourly workers of Defendant at any point in time between August 23, 2020 and August 23,

2023.

D. Equitable Tolling

Plaintiff moves for equitable tolling of the statute of limitations for the putative FLSA

5 The Court notes Plaintiff’s request for expedited discovery within 10 days of order. Dkt. No. 21-5, at 1. While the

ten-day deadline proposed by Plaintiff is reasonable, (see e.g., Jackson v. Bloomberg, L.P., 298 F.R.D. 152, 170

(S.D.N.Y. 2014) (“Bloomberg is ordered to provide such information in electronically readable format within 10 days

of this Court’s order.”)), the Court grants Defendant additional time to complete the required productions.

25

collective from the date he filed the instant motion until the close of any court-ordered opt-in

period. Dkt. No. 19, at 20. Plaintiff simply argues that equitable tolling is appropriate because

“Plaintiff has acted diligently during the period for which it seeks equitable tolling for the FLSA

Collective” and “only approximately four (4) months have passed since Defendant answered the

Complaint” and this instant motion. Id. at 21. Plaintiff’s request is denied without prejudice.

Generally, a litigant seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Mottahedeh v. United States, 794 F.3d 347, 352 (2d Cir. 2015)

(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “A statute of limitations may be tolled

as necessary to avoid inequitable circumstances.” Santiago, 2023 WL 8003323, at *7 (citing

Iavorski v. U.S. I.N.S., 232 F.3d 124, 129 (2d Cir. 2000) (citations omitted). “Equitable tolling

applies as a matter of fairness where a party has been prevented in some extraordinary way from

exercising his rights.” Id. Further, equitable tolling is considered “on a case-by-case basis to

prevent inequity.” Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.), cert. denied, 531 U.S. 968

(2000).

For an FLSA action, “the statute of limitations applicable to a plaintiff’s claim continues

to run until he or she has filed a written consent with the court to join the lawsuit.” Aleman-

Valdivia, 2021 WL 4502479, at *7 (E.D.N.Y. Sept. 30, 2021) (citing 29 U.S.C. § 256(b)).

“[C]ourts in this Circuit have permitted equitable tolling while the motion for conditional

certification is before the court.” Aleman-Valdivia, 2021 WL 4502479, at *7 (citing Fa Ting Wang

v. Empire State Auto Corp., No. 14-CV-1491 (WFK) (VMS), 2015 WL 4603117, at *14 (E.D.N.Y.

July 29, 2015); see also Chui v. Am. Yuexianggui of LI LLC, No.18-CV-5091 (SJF) (AKT), 2020

WL 3618892, at *10 (E.D.N.Y. July 2, 2020) (“Given the length of time that has passed since the

26

instant motion was filed, and the diligence of Plaintiff's counsel in pursuing certification, the Court

is granting equitable tolling from the date the motion was filed.”).

In the context of FLSA conditional certification motions, there has indeed been an ongoing

trend over in which courts have tolled the FLSA statute of limitations for potential opt-in plaintiffs.

See, e.g., Lee v. ABC Carpet & Home, 236 F.R.D. 193, 198-202 (S.D.N.Y. 2006); Santiago, 2023

WL 8003323, at *7 (acknowledging “an ongoing trend over at least the last 17 years.”) The general

principle in doing so derives from “[t]he fact that the statute of limitations for opt-in plaintiffs’

FLSA claims runs until they actually join the lawsuit; it does not relate back to the filing of the

named plaintiff's complaint.” Gaspar v. Pers. Touch Moving, Inc., No. 13-CV-8187 (AJN), 2014

WL 4593944, at *7 (S.D.N.Y. Sept. 15, 2014); see also 29 U.S.C. § 256(b). Further, “for the

purposes of establishing the statute of limitations under the FLSA, a new cause of action accrues

with each payday following an allegedly unlawful pay period.” Lee, 236 F.R.D. at 199 (citation

omitted). Thus, “[c]ourts often begin counting back from the date of the conditional certification

order since the statute of limitations on FLSA claims continues to run until a plaintiff consents to

join the action.” Garriga v. Blonder Builders Inc., No. 17-CV-497(JMA)(AKT), 2018 WL

4861394, at *7 (E.D.N.Y. Sept. 28, 2018).

Here, Plaintiff has presented no “extraordinary circumstances” that stood in his way from

exercising his rights under the FLSA and that warrant equitable tolling at this time. At best, this

request is premature. “Because governing precedent does not permit equitable tolling here,

[plaintiff’s] application for a categorical ruling tolling the statute of limitations for all opt-in

plaintiffs is denied.” Knox v. John Varvatos Enterprises Inc., 282 F. Supp. 3d 644, 660 (S.D.N.Y.

2017). “This ruling is without prejudice to any application by a plaintiff for equitable tolling that

conforms to the requirements of the equitable tolling doctrine.” Id. Therefore, Plaintiff’s motion

27

for equitable tolling is denied, without prejudice to renew.

IV. Conclusion

For the reasons set forth above, the Court grants in part and denies in part Plaintiff’s

motion for conditional certification as a collective action under the FLSA pursuant to 29 U.S.C. §

216(b).

The Court further orders that:

(1) by April 15, 2024, Defendant shall produce to Plaintiff, in computer readable format, the

full names, current home address or last known address, cell phone number, work and

personal email addresses, and dates of employment with job titles of all former and current

hourly workers of Defendant at any point in time between August 23, 2020 and August 23,

2023;

(2) By March 29, 2024, the parties are to meet and confer in good faith, and by April 1, 2024,

the parties shall submit a revised Proposed Notice and consent form that complies with the

directives set forth herein;

(3) By May 1, 2024, Plaintiff or his designated representative shall cause a copy of the Notice

and Consent to Join Form to be disseminated to the covered employees by first class

mail, email, and text message.

SO ORDERED.

Dated: Brooklyn, New York

March 22, 2024

/s/ Joseph A. Marutollo

JOSEPH A. MARUTOLLO

United States Magistrate Judge

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