Stoot v. Capital Management Services, L.P.

Y)

SEP -9 2025 .

UNITED STATES DISTRICT COURT Pati: cuca

WESTERN DISTRICT OF NEW YORK STERN DisTRICLOS

ROBIN R. STOOT, LISA A. PHILLIPS, and 1:24-CV-592 LJV (MJR)

VANESSA A. HILL, on behalf of themselves

and all others similarly situated,

Plaintiffs, DECISION AND

ORDER

V.

CAPITAL MANAGEMENT SERVICES, L.P.

and CENTER ONE, LLC,

Defendants.

This case has been referred to the undersigned pursuant to Section 636(b)(1) of

Title 28 of the United States Code, by the Honorable Lawrence J. Vilardo, for all pretrial

matters and to hear and report on dispositive motions. (Dkt. No. 29) Before the Court is

plaintiffs’ motion for conditional certification of a Fair Labor Standards Act (“FLSA”), 29

U.S.C. §§ 201, ef seq., collective action. (Dkt. No. 41) For the following reasons, plaintiffs’

motion for conditional certification and court-supervised notice is granted."

BACKGROUND

The Complaint

Plaintiffs Robin Stoot, Lisa Phillips, and Vanessa Hill are or were jointly employed

by defendants Capital Management Services, L.P. and Center One, LLC (collectively

referred to as “defendants”) as customer service representatives, or in other similar

‘A motion for conditional certification of an FLSA collective action is a non-dispositive motion within the

authority of a magistrate judge. See Summa v. Hofstra Univ., 715 F. Supp. 2d 378, 383-84 (E.D.N.Y.

2010)

positions.” (Dkt. No. 34, Jf] 1-3, 15) Defendants operate call centers. (/d. at 18) Stoot

and Phillips hold fully remote positions. (/d. at {| 1-3, ] 15) Plaintiffs and other similarly

situated employees were required to start up, and then log in to, three separate software

programs before they were able to clock-in for the start of their shifts. (/d. at Jf] 22-23)

These clock-in duties, which are unpaid, can take anywhere from twenty to thirty minutes

to complete. (/d. at Jf] 21-25) In addition, defendants prohibited employees from clocking

in more than five minutes before the start of their shifts. (/d. at {] 24) Defendants also

require employees to accept their first customer call as soon as their shift begins, or they

are subject to discipline. (/d. at | 25, | 27) Clock-in duties must be completed before

employees can view client information, receive guidance on technical issues, and chat

with supervisors throughout the day. (/d. at J] 26)

Defendants used a program called “Genesis” that allows employees to switch their

status on their computer screens to alert supervisors of their activity. (/d. at | 31) For

example, employees could switch their status to “break”, “lunch”, or “in a meeting.” (/d.)

Defendants required employees to switch their status to “break” if they walked away from

their computer for any reason, including to use the bathroom. (/d.) Defendants keep track

of how long employees have their status switched to “break”, and employees are not paid

for any break time in excess of ten minutes as a cumulative total during each shift. (/d. at

30-32)

If employees experience technical or computer issues that prevent them from

performing their job duties, they are required to reach out to their supervisor before

contacting the Information Technology Department (“IT”). (/d. at {| 35) Supervisors then

2 Defendants “operate as aniintegrated enterprise, with common management and shared finances

between them.” (Dkt. No. 34, Jf] 15-16)

contact IT for support if needed. (/d.) It can sometimes take anywhere from thirty minutes

to three hours for IT to resolve an employee’s technical or computer issue. (/d. at Jf] 36-

38) Employees were not paid for time they spent waiting for their supervisor and/or IT to

resolve these problems. (/d.)

Defendants automatically deducted a thirty-minute unpaid meal break from

employees’ daily pay, even though they were aware that employees regularly worked

during this thirty-minute period. (/d. at 42-47) Employees are required to clock in and

out during the lunch period, and as a result, must again complete clock-in duties before

resuming work after a lunch period. (/d. at J 28) Thus, employees are often required to

end their meal breaks early to complete their clock-in duties before resuming work. (/d.)

As a result of these policies, employees were not compensated for all hours

worked and were not compensated at the required rate for all time worked in excess of

forty hours per week, in violation of the FLSA. (/d. at J 29, 9] 40-41, 1 47, 93-101)

Plaintiffs allege these FLSA violations as a putative collective action.? (/d. at I] 48-60)

Plaintiffs’ Declarations

In support of the motion for conditional certification, plaintiffs Robin Stoot, Lisa

Phillips, and Vanessa Hill (the “named plaintiffs”) have each submitted declarations.

Named plaintiffs indicate that defendants operate a collection agency and customer

service call center. (Dkt. No. 28-5, J 2; Dkt. No. 28-7, J 2; Dkt. No. 41-2, 2) Stoot was

employed by defendants between August 2021 and December 2023 in a fully remote

position as a customer service representative and/or mortgage counselor. (Dkt. No. 41-

2, Il 2-3) Phillips was employed by defendants between August 2023 and January 2024

= Plaintiffs also allega putative ciass actions for various wage and hour violations pursuant to New York

and Ohio state law. (Dkt. No. 34, 1] 61-92, If] 103-118, 1125-141)

in a fully remote position as a customer service representative and/or mortgage

counselor. (Dkt. No. 28-5, {J 2-3) Hill was employed by defendants between December

2020 and April 2021 as a customer service representative. (Dkt. No. 28-7, {| 2-3) Stoot,

Hill, and Phillips’ job duties included speaking on the phone with customers. (Dkt. No. 28-

5, 4 3; Dkt. No. 28-7, J 3; Dkt. No. 41-2, J 3;)

Named plaintiffs declare that defendants prohibited employees from clocking in

more than five minutes before the start of a scheduled shift. (Dkt. No. 28-5, J 8; Dkt. No.

28-7, J 8; Dkt. No. 41-2, J 8) Named plaintiffs were also required to begin taking customer

calls at the start of their shift. (Dkt. No. 28-5, 4] 5; Dkt. No. 28-7, 5; Dkt. No. 41-2, □□ 5)

Before they could clock-in or begin taking customer calls, they had to log in to three

different software programs. (/d.) Thus, Stoot would typically begin working between

twenty and thirty minutes before the start of her shift; Phillips would typically begin working

between thirty and sixty minutes before the start of her shift; and Hill would typically begin

working approximately five minutes before the start of her shift. (Dkt. No. 28-5 JJ 6-7;

Dkt. No. 28-7, □□ 6-7; Dkt. No. 41-2, 6-7) They were not paid for this time. (/d.)

Named plaintiffs further state that they were not paid for any break time in excess

of ten minutes as a cumulative total during each shift. (Dkt. No. 28-5, 9; Dkt. No. 28-7,

q 9; Dkt. No. 41-2 J] 9) Stoot and Phillips indicate that they were required to clock in and

out for a thirty-minute lunch period each day. (Dkt. No. 28-5, 11; Dkt. No. 41-2, J 1)

However, they were also required to sign back into each software program before they

could clock back in after lunch, which meant they were only able to take approximately

fifteen minutes as a break for lunch each day. (Dkt. No. 28-5, J 12; Dkt. No. 41-2, J 12)

Hill states that she had thirty minutes of time automatically deducted from her pay each

day for a lunch break. (Dkt. No. 28-7, 4 11) Even though she often informed her supervisor

that she did not take or was unable to take a lunch break, the time was still deducted. (Id.

at J 12) Named plaintiffs declare that they were not paid for time spent waiting for IT to

resolve technical issues. (Dkt. No. 28-5, J] 10; Dkt. No. 28-7, 4] 10; Dkt. No. 41-2, J 10)

Named plaintiffs spoke with other customer services representations employed by

defendants who had similar experiences. (Dkt. No. 28-5, J] 13; Dkt. No. 28-7, J] 13; Dkt.

No. 41-2 J] 13)

Plaintiffs also submit declarations from five other current or former employees of

defendants (“opt-in plaintiffs”). Opt-in plaintiff Toni Brown indicates that she was employed

by defendants between July 2021 and July 2024, in a fully remote position, as a

supervisor and customer service representative. (Dkt. No. 28-8, 9] 2-3) Brown would

begin working approximately thirty minutes before the start of her shift and before clocking

in, in order to be prepared to accept customer calls. (/d. at J] 5-6) Brown states that she

was not paid for this time. (/d. at {] 7) In addition, Brown was not paid for any break time

in excess of ten minutes as a cumulative total during her shift nor was she paid for any

time she spent waiting for IT to resolve technical issues. (/d. at 9-10) Opt-in plaintiff

Megan Kolb was employed by defendants beginning in October 2017 as a customer

service representative. (Dkt. No. 28-6, {| 2) She began working in an office and later

worked in a hybrid position. (/d.) In order to be prepared to take customer calls, Kolb

typically started working approximately fifteen minutes before she was able to clock-in.

(Id. at {| 5-6) She was not paid for this time. (/d. at | 7) Kolb declares that she was unable

to take more than one fifteen-minute break per day. (/d. at | 9) Brown and Kolb spoke

with other customer services representatives, and they had similar experiences. (Dkt. No.

28-6, J 10; Dkt. No. 28-8, J] 11)

Opt-in plaintiff Kelly Grantt was employed by defendants between August 2021

and September 2021, at an office in Amherst, New York, as a customer service

representative. (Dkt. No. 28-4, Jf] 2-3) In order to be prepared to accept customer calls,

Grantt typically began working five minutes before she was able to clock-in. (/d. at □□□□ 5-

6) Grantt states that she was not paid for this time. (/d. at J] 7) In addition, Grantt was not

paid for any break time in excess of ten minutes as a cumulative total during each shift,

nor was she paid for time she spent waiting for IT to resolve technical issues. (/d. at □□□ 8-

9) Defendants automatically deducted thirty minutes from Grantt’s pay each shift as a

meal break. (/d. at | 10) Grantt states that even though she sometimes informed

defendants by email that she had not taken a meal break, she was not always paid for

that time. (/d. at 11) Grantt worked alongside with, and spoke with, other customer

service representatives who had similar experiences. (/d. at {| 12)

Opt-in plaintiff Kaylee Vander Ploeg was employed by defendants between August

2023 and March 2024, in a fully remote position, as a customer service representative

and/or collections representative. (Dkt. No. 28-3, Jf] 2-3) In order to be prepared to take

customer calls at the start of her shift, Ploeg would begin working approximately thirteen

minutes before the start of her shift. (/d. at J] 5-6) Ploeg declares that she was not paid

for this time. (/d. at {| 7) Ploeg further indicates that she was not paid for any break time

in excess of ten minutes as a cumulative total during each shift, nor was she paid for time

spent waiting for IT to resolve technical issues. (/d. at Jf] 9-10) Ploeg was often unable to

take a lunch break. (/d. at 12) Ploeg states that even when she informed her supervisor

that she had worked through lunch, defendants still automatically deducted thirty minutes

from her pay. (/d.) Ploeg spoke with other customer service representatives who had

similar experiences. (/d. at J 13)

Opt-in plaintiff Arianna McDowell was employed by defendants from 2022 to 2023

as a customer service representative and debt collector. (Dkt. No. 28-2, □□ 3) She was first

employed in an office and then in a remote position. (/d.) In order to be prepared to answer

customer calls at the start of her shift, McDowell would begin working approximately

fifteen to twenty minutes before the start of her shift and before she was able to clock-in.

(/d. at Jf] 5-6) McDowell indicates that she was not paid for this time. (/d. at {| 7) Further,

McDowell was not paid for time she spent waiting for IT to resolve any technical issues.

(Id. at | 9) McDowell spoke with other customer service representatives who had the

same experiences. (/d. at {| 10)

Motion for Conditional Certification

On January 13, 2025, plaintiffs filed the instant motion for conditional certification

of this case as a collective action under the FLSA. (Dkt. No. 41) Plaintiffs request that the

Court direct issuance of notice, by United States mail, email, and text message, to the

following potential collective:

All current and former remote/hybrid non-exempt employees jointly

employed by Capital Management Services, L.P. and Center One, LLC,

between October 31, 2021 and the present.4

4 The potential collective set forth in plaintiffs’ motion for conditional certification also included in-person

employees. (Dkt. No. 41, Exh. 1) However, during oral argument, counsel for plaintiffs indicated that

plaintiffs agree that the potential collective should be limited to employees who worked for defendants in

remote or hybrid positions only. Also, defendants note, in their opposition to the certification motion, that

plaintiffs have the incorrect date for the scope of the proposed collective. (Dkt. No. 42, pg. 18, n. 7)

Defendants indicate that because the instant motion was filed on January 13, 2025, if a collective action

were to be certified, the collective would extend back to January 13, 2022. (/d.) As explained later, the

parties should address the scope of the collective, as well as other items, when they meet and confer

regarding the notice.

(Dkt. No. 41, Exh. 1) Plaintiffs request that defendants be directed to provide an electronic

roster of all individuals that fit the definition of the collective that includes their full names,

dates of employment, last known home addresses, personal email addresses, and phone

numbers, and provide a declaration affirming that the produced roster fully complies with

the Court’s order.® (Dkt. No. 41)

DISCUSSION

Standard for Granting Conditional Certification

“Unlike a representative action under Rule 23 of the Federal Rules of Civil

Procedure, where all persons in the defined class are bound by the case outcome unless

they affirmatively ‘opt out,’ an employee does not become a party to an FLSA collective

action unless he or she affirmatively ‘opts in’ by filing written consent with the court.”

Gordon v. Kaleida Health, 08-CV-378, 2009 U.S. Dist. LEXIS 95729, at *11 (W.D.N.Y. Oct.

14, 2009) (internal citations omitted). "Although they are not required to do so by [the]

FLSA, district courts have discretion, in appropriate cases, to implement [§ 216(b) of the

FLSA]... by facilitating notice to potential plaintiffs of the pendency of the action and of

their opportunity to opt-in as represented plaintiffs." Myers v. Hertz Corp., 624 F.3d 537,

554 (2d Cir. 2010). This process is often referred to as certification. Acevedo v. WorkFit

Med. LLC, 14-CV-06221, 2014 U.S. Dist. LEXIS 131269, at *5 (W.D.N.Y. Sept. 16, 2014).

Courts follow a two-step process for determining whether a lawsuit should proceed

as an FLSA collective action. Myers, 624 F.3d at 555. The first step, known as conditional

certification, involves the court “making an initial determination to send notice to potential

opt-in plaintiffs who may be similarly situated to the named plaintiffs with respect to

5 Plaintiffs also request that the Court direct that duplicate copies of the notice may be sent if new,

updated, or corrected contact information is found for any potential opt-in plaintiff. (Dkt. No. 41)

whether an FLSA violation has occurred.” /d. To establish that a plaintiff is similarly

situated to the members of the putative collective class, plaintiff 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.” /d. "[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 under 29 U.S.C. § 216(b) with respect to their allegations that the law

has been violated." Shibetti v. Z Rest., Diner & Lounge., Inc., 478 F. Supp. 3d 403, 414

(E.D.N.Y. 2020) (alteration and citation omitted).

Plaintiffs’ burden on a conditional certification motion is “minimal, especially since

the determination that potential plaintiffs are similarly situated is merely a preliminary

one.” Gjurovich v. Ennamuel’s Marketplace, Inc., 282 F. Supp. 2d 101, 104 (S.D.NLY.

2003). “[T]he court dacs not resolve factual disputes, decide substantive issues going to

the ultimate merits, or make credibility determinations[, and a]ccordingly, an FLSA

collective action may be conditionally certified upon even a single plaintiff's affidavit.”

Robbins v. Blazin Wings, Inc., 15-CV-6340, 2016 U.S. Dist. LEXIS 35446, at *19

(W.D.N.Y. Mar. 18, 2016). Given this “fairly lenient” standard, conditional certification is

“typically grant[ed].” Chhab v. Darden Rests., Inc., 11 Civ. 8345, 2013 U.S. Dist. LEXIS

135926 (S.D.N.Y. 2013) (quotation omitted).

The second step of collective certification occurs after discovery is complete, when

the court examines the evidentiary record and makes a factual finding as to whether the

conditionally certified plaintiffs are, in fact, similarly situated to the lead plaintiffs. Romero

v. Flaum Appetizing Corp., 07 Civ. 7222, 2009 U.S. Dist. LEXIS 80498, at *7-8 (S.D.NLY.

Aug. 17, 2009) If the court determines the opt-in plaintiffs are not similarly situated, "the

court will decertify the class, the claims of the opt-in plaintiffs will be dismissed without

prejudice, and the class representatives may proceed to trial on their individual claims."

Rubery v. Buth-Na-Bodhaige, Inc., 569 F. Supp. 2d 334, 336, n.1 (W.D.N.Y. 2008).

Alternatively, if the class description is shown to require modification, that can be

accomplished at the second step of the inquiry. /d. at 338 (citations omitted).

Plaintiffs Are Entitled to Conditional Certification

The instant motion concerns only the first step of the certification process, and

plaintiffs here have met the low threshold required for conditional certification.

The FLSA requires employers to pay employees for all time worked. See 29 U.S.C.

§ 207; 29 C.F.R. § 778.223(a) (stating that "hours worked" under § 207 include "(1) [alll

time during which an employee is required to be on duty or to be on the employer's

premises or at a prescribed workplace; and (2) all time during which an employee is

suffered or permitted to work whether or not he is required to do so"). In addition, the

FLSA requires employees to be paid an overtime rate of "not less than one and one-half

times the regular rate at which [they are] employed" for any time worked in excess of forty

hours per week. See 29 U.S.C. § 207(a).

Here, plaintiffs have sufficiently alleged common policies or practices by

defendants that resulted in a failure to pay non-exempt hybrid and/or remote employees

for all hours worked, as well for any overtime earned, in violation of the FLSA. These

alleged policies and practices included (1) defendants’ requirement that employees spend

unpaid time logging in to various software programs before they were able to clock-in and

begin their shift; (2) defendants’ refusal to pay for any break time over and above a

cumulative total of ten minutes per shift; (3) defendants’ refusal to pay employees for time

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spent waiting for IT issues to be resolved; and (4) defendants’ failure to pay employees

for time spent working during their thirty-minute lunch break. Moreover, each named

plaintiff has submitted a declaration indicating that they were employed by defendants as

customer services representatives and that they personally experienced these specific

FLSA wage and hour violations.

Plaintiffs have further established a sufficient “factual nexus between [their]

situation and the situation of other current and former employees” who were also

potentially subject to defendants’ alleged FLSA wage and hour violations. Gjurovich, 289

F. Supp. 2d at 104 (internal citations omitted). In addition to declarations by the three

named plaintiffs, plaintiffs have submitted declarations by five opt-in plaintiffs who also

worked as customer service representatives for defendants and who, like the named

plaintiffs, claim that they were not paid for clock-in duties, time spent waiting for IT issues

to be resolved, break time in excess of ten cumulative minutes per shift, and/or time

worked during meal breaks. In addition, the three named plaintiffs and the five opt-in

plaintiffs all declare that they spoke with other customer service representatives employed

by defendants who shared similar experiences.®

In opposition, defendants submit affidavits from their Vice President of Information

Security as well as their Vice President of Operations. (Dkt. Nos. 30-2; 30-3) These

§ Named plaintiffs Stoot and Phillips, as well as opt-in plaintiffs Brown, Kolb, Ploeg, and McDowell all state

that they were employed in either remote or hybrid positions. Named plaintiff Hill does not specify as to

whether she worked remotely, in a hybrid position, or in person, and opt-in plaintiff Grantt indicates that

she worked at an office in Amherst, New York. As explained above, the potential collective is limited to

remote and hybrid employees. But even if the Court were to discount the declarations of Hill and Grantt,

who do not appear to be remote or hybrid workers, the remaining six affidavits by remote and/or hybrid

workers are sufficient to show that plaintiffs are similarly situated to members of the potential collective.

See Wraga v. Marble Lite, Inc., 05 Civ. 5038, 2006 U.S. Dist. LEXIS 60457, at *4-5 (E.D.N.Y. Aug. 22,

2006) (granting plaintiffs motion based on complaint and single affidavit alleging failure to pay overtime

where plaintiff stated he was aware, based on conversations, of others in a similar situation).

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affidavits state, inter alia, that (1) it takes remote employees, at most, three to four minutes

to log in to defendants’ system and clock-in for the day; (2) employees are paid for time

spent waiting for technical or IT issues to be resolved; (3) employees are paid for one

fifteen-minute break per six-hour shift; and (4) defendants’ timeclock software does not

automatically deduct thirty minutes per shift for an employee’s lunch break. (/d.) But as

noted above, the merits of plaintiffs' claims are not relevant on a motion for conditional

certification. See e.g., Ayers v. SGS Control Servs., 03 Civ. 9078, 2004 U.S. Dist. LEXIS

25646 (S.D.N.Y. Dec. 21, 2004) (“Defendants’ focus on the merits is misplaced at this

[conditional certification] stage.”); Sexton v. Franklin First Financial, Ltd., 08-C\V-04950,

2009 U.S. Dist. LEXIS 50526, at *19-20 (E.D.N.Y. June 16, 2009) (defendants' merit-

based argument is an attack on credibility of plaintiff and opt-in plaintiffs "that is not

properly decided by the Court on this motion"). Here, plaintiffs have presented evidence

that they and other potential collective members were not paid for all time spent working

and/or for overtime earned. Defendants’ contradictory evidence will certainly be relevant,

down the road, to assess the merits of plaintiffs’ underlying allegations. But it is not

sufficient to defeat a conditional certification motion.

The Court also rejects defendants’ contention that the declarations submitted by

plaintiffs are too conclusory to justify conditional certification. Plaintiffs have offered

declarations from multiple customer service representatives containing specific and

corroborating information regarding defendants’ alleged failure to pay employees for time

spent working before they were able to clock-in as well as for time spent.waiting for IT

issues to be resolved. These affidavits also consistently recount defendants’ alleged

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failure to regularly pay employees for brief rest periods as well as for time spent working

during meal periods.

The level of detail sought by defendants, including examples of what specific IT

issues plaintiffs experienced, the names of the software programs plaintiffs were required

to log in to before clocking-in, and how often plaintiffs encountered these difficulties, is

simply not required at this stage of the certification process. See Lubas v. JLS Grp., 18-

CV-6611, 2020 U.S. Dist. LEXIS 130233 (E.D.N.Y. 2020) (“Where there are declarations

from multiple plaintiffs, with each plaintiff corroborating or supporting each other's

statements, even if somewhat thin on details, such proof is sufficient to meet the low

factual threshold for FLSA collective certification.”); Garcia v. Spectrum of Creations, Inc.,

102 F. Supp. 3d 541, 548-49 (S.D.N.Y. 2015) (certifying limited collective action where

affidavits of two employees "corroborate[d] each others' personal treatment and

observations of the treatment of other employees" despite noting that "[w]hile it would be

helpful to have the time and dates of conversations, it is not surprising that plaintiffs would

be unable to recall such specifics"). Defendants will certainly be entitled to more detailed

information about plaintiffs’ claims as the case moves forward. But we are not there yet.

See Puglisi v. TD Bank, N.A., 998 F. Supp. 2d 95 (E.D.N.Y. 2014) (noting that the first

step of conditional certification “generally takes place before any significant discovery”

and “the burden upon plaintiffs is extraordinarily low’).

Defendants further argue that plaintiffs are not similarly situated due to differences

or purported discrepancies in their declarations. Defendants point to variations in the

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amounts of time the named and opt-in plaintiffs spent on clock-in duties.’ Defendants

further note that not all declarants specifically state that thirty minutes was automatically

deducted from their pay each shift, and that declarants vary in their descriptions of the

manner and amount of unpaid rest time. But the proper inquiry at the notice stage is

simply “whether plaintiffs are similarly situated with respect to their allegations that the

law has been violated.” Hallissey v. Am. Online, Inc., 99 Civ. 3785, 2008 U.S. Dist. LEXIS

18387, at *6 (S.D.N.Y. Feb. 19, 2008). And it is well-settled that such a determination does

not require an individualized inquiry. Sexton, 2009 U.S. Dist. LEXIS 50526 (finding the

existence of individual claims and defenses does not preclude conditional certification of

FLSA collective action) (collecting cases).

Equally unavailing is defendants’ argument that plaintiffs and potential collective

members are not similarly situated if they worked on different “products” or did not use

the same software systems. At bottom, plaintiffs claim that they and potential collective

members were all subject to defendants’ common policy or practice of failing to pay hybrid

and/or remote employees for all time worked before they were able to clock-in, as well as

failing to pay for rest time, work performed during meal times, and time spent waiting for

technical issues to be fixed. That these employees may have used different software

programs, worked on different products, or serviced different customers is not relevant to

whether they are similarly situated with respect to these alleged FLSA wage and hour

violations. Moreover, if “discovery reveals that some employees are not similarly situated,

the class can be redefined or decertified" at the second step of this process. Scholtisek

’ Defendants note that each plaintiff cites a different amount of unpaid time they spent on clock-in duties.

For example, Hill states she started working approximately five minutes before clocking in while Phillips

states she began working approximately thirty to sixty minutes before she was able to clock-in.

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v. Eldre Corp., 229 F.R.D. 381, 390 (W.D.N.Y. 2005). See also Parks v. Dick's Sporting

Goods, Inc., 05-CV-6590, 2007 U.S. Dist. LEXIS 20949, at *12 (W.D.N.Y. Mar. 21, 2007)

(magistrate judge correctly declined to apply fact-specific inquiry into job duties or other

potentially distinguishing circumstances at conditional certification stage; such

considerations are to be addressed at the second stage of the certification analysis);

Francis v. A&E Stores, Inc., 06 Civ. 1638, 2008 U.S. Dist. LEXIS 49971, at *7 (S.D.NLY.

May 9, 2008) (variations among duties can be explored during discovery and addressed

in second-stage motion for de-certification).

Geographic Scope of the Potential Collective

Defendants are headquartered in Buffalo, New York and are registered to do

business in Ohio. (Dkt. No. 34, J 8-9) It is apparent from the complaint, motion papers,

and discussion during oral argument that defendants employ hybrid and/or remote

employees in a number of different states. During oral argument, counsel for plaintiffs

indicated that plaintiffs are seeking to conditionally certify a class of non-exempt hybrid

and/or remote workers in all states where potential collective class members are located,

with the exception of Pennsylvania.® Defendants argue that if certification is granted, the

geographic scope of the potential collective should be limited to New York and Ohio, since

those are the states where the named plaintiffs reside. (Dkt. No. 34, Jf] 1-3)

Plaintiffs’ evidence of the similarly situated nature of the proposed collective does

not provide any basis on which to impose geographical restrictions, with the exception of

8 On January 31, 2025, Chief United States District Judge Mark R. Hornak conditionally certified a

collective action pursuant to Section 216(b) of the FLSA for current and former hybrid/remote workers

employed by defendants in Pennsylvania from February 20, 2021 to present who were not properly

compensated for time spent logging in to the companies’ systems prior to their shift. See Fulton v. Capital

Mgmt. Servs. L.P., 2:22-CV-823 (W.D. Pa. 2022)

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Pennsylvania, where a collective has already been conditionally certified. Stated another

way, there is nothing in the record to indicate that remote and/or hybrid employees of

defendants, located in states other than Ohio and New York, were not subject to the same

allegedly unlawful pay practices and policies as plaintiffs. Should discovery reveal that

potential collective members in certain states are not similarly situated to plaintiffs, the

collective may be decertified or modified at that time.

Conditional Certification and Notice

The Court finds that plaintiffs have made the requisite showing of a factual nexus

between the circumstances of their claims and the circumstances of the potential

collective. Accordingly, the Court conditionally certifies this case as an FLSA collective

action on behalf of plaintiffs and others similarly situated. Plaintiffs’ request for defendants

to provide the requested contact information for potential opt-in plaintiffs is granted. The

information must be provided by defendants promptly and in a reasonably useable

electronic form.

The Court directs that the parties meet and confer regarding the contents of the

proposed notice and consent forms. The potential collective shall exclude individuals

employed by defendants in Pennsylvania and the parties shall confer regarding the

correct date for the scope of the potential collective. The parties shall also meet and

confer as to whether the definition of the potential collective should further specify that it

includes non-exempt hybrid and/or remote workers employed by defendants as customer

service representatives or in other similar positions whose job duties included speaking

on the phone with customers. The parties shall jointly submit a proposed notice and

consent form to the Court for approval within thirty (30) days of the entry of this order. If

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the parties are unable to agree upon the proposed notice and consent forms, they shall

each submit to the Court a proposed version with a brief explanation of their respective

positions, with case law if appropriate.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for conditional certification of an FLSA

collective action and court-supervised notice to potential opt-in plaintiffs is granted. (Dkt.

No. 41)

SO ORDERED.

Dated: September 4, 2025

Buffalo, New York

apne J. he

United States Magistrate Judge

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