Orbetta v. Dairyland USA Corporation

Background

Mauricio Orbetta, Delroy Harriot, and Gosnell Butler brought a wage-and-hour case against Dairyland USA Corporation and its parent company, The Chef’s Warehouse, Inc. They sought unpaid overtime, unpaid minimum wages, statutory damages, and other relief under federal and state law. Fifty-two people had opted into the case in connection with the overtime claims under the Fair Labor Standards Act (FLSA).

The plaintiffs asked the court to authorize notice to current and former CDL B and non-commercial-license delivery drivers who worked from Dairyland’s warehouse and allegedly were not paid required overtime. The court’s earlier partial-summary-judgment ruling had held that the Motor Carrier Act exemption applied to ten plaintiffs as to Dairyland, while factual disputes remained for other plaintiffs. The court had also denied the defendants’ partial-summary-judgment motion concerning The Chef’s Warehouse because the record did not establish that it qualified as a motor private carrier.

Conditional collective action certification

Under Section 216(b) of the FLSA, employees may bring an overtime action on behalf of themselves and other employees who are similarly situated, but other employees must affirmatively consent to join. The court explained that conditional “certification” at this stage means authorizing notice; it does not decide whether the case will ultimately proceed as a collective action or whether the defendants violated the law.

Because the parties had already conducted some discovery, the court applied the “modest plus” standard. Under that standard, the court considered the incomplete evidence from both sides but did not decide the ultimate merits. The plaintiffs argued that the drivers had common duties, compensation terms, and treatment under the Motor Carrier Act exemption. The defendants argued that the collective bargaining agreements lawfully governed pay, that drivers had received sufficient overtime since May 22, 2020, and that determining the exemption would require individualized review of each driver’s routes.

The court rejected those arguments as reasons to deny notice at this stage. It stated that a collective bargaining agreement does not eliminate the FLSA’s protections. It also held that individualized questions about drivers’ routes did not prevent conditional certification because resolving those questions at this point would turn the initial notice decision into a merits determination. The defendants’ argument about overtime payments since May 22, 2020, likewise was too closely tied to the merits to resolve on this motion.

The evidence suggested two general periods: before May 22, 2020, when the defendants appeared to treat the drivers as exempt from FLSA overtime requirements, and beginning May 22, 2020, when they appeared not to treat the drivers as exempt. The court found that Harriot and Butler had worked as drivers since 2011 and therefore had been subject to both policies. This made them similarly situated to potential opt-in plaintiffs who had been subject to the common policies during the relevant period.

The court found the named plaintiffs similarly situated to other CDL B drivers. The Driver’s Manual indicated that the drivers generally had similar job responsibilities, and the collective bargaining agreements provided the same pay provisions for CDL B drivers. The court did not find the named plaintiffs similarly situated to non-commercial-license drivers. The two groups had different pay provisions, and non-commercial-license drivers made only local deliveries while CDL B drivers could cover the Northeastern United States. The evidence also showed that Harriot and Butler held CDL B licenses; the opinion did not establish Orbetta’s license status through his declaration or the amended complaint.

Equitable tolling

The plaintiffs asked the court to allow notice to cover claims dating back to October 27, 2017, which would have required extending the FLSA’s limitations period. The court assumed for purposes of this motion that the three-year limitations period for alleged willful violations applied. It explained that equitable tolling is an exceptional remedy requiring both reasonable diligence and extraordinary circumstances.

The court declined to toll the period back to the filing of the original complaint in October 2020. The plaintiffs could have sought conditional certification earlier, and the court had never ordered them to wait until discovery concerning the Motor Carrier Act exemption was complete. The court also found no basis to toll the period of limited Motor Carrier Act discovery.

The court found that tolling became appropriate on January 4, 2023. On that date, the plaintiffs requested permission to seek collective certification while the parties were briefing partial summary judgment. The court later directed them to wait before filing the motion, and the plaintiffs filed the motion after receiving permission. The court also found reasonable diligence based on the plaintiffs’ litigation efforts and their submission of a union membership roster containing members’ names, hire dates, and driver categories.

The court therefore granted equitable tolling beginning January 4, 2023. Assuming the three-year limitations period applied, claims accruing on or after January 4, 2020, would be presumptively timely for the authorized notice. The court did not rule out later, individual requests to toll claims accruing before that date.

Notice and related discovery

The court authorized notice only to CDL B drivers who worked from the warehouse between January 4, 2020, and February 2, 2021. It set a 60-day opt-in period rather than the 90 days requested by the plaintiffs. The parties were ordered to meet and confer and submit a revised proposed notice within two weeks.

The court directed that the revised notice correct references to another case and another judge, state that potential opt-ins may retain their own counsel, remind them about discovery and evidence-preservation obligations, accurately present the defendants’ position, and correct a typographical error. The court did not require language stating that potential opt-ins might be responsible for their own legal costs because that language could discourage participation.

The court approved distributing notice by mail and email, sending a reminder halfway through the notice period, and allowing union representatives and shop stewards to provide copies to current drivers after work inside the defendants’ Bronx facility. It denied the request to require posting notice in the warehouse, finding mail and email sufficient.

The court ordered the defendants to provide a computer-readable list containing names, last known addresses, telephone numbers, email addresses, work locations, and employment dates for CDL B drivers who worked from the warehouse during the authorized period. It did not require disclosure of Social Security numbers at this stage, but allowed the plaintiffs to renew that request if notice could not be delivered using the information provided.

Disposition

The court granted the plaintiffs’ motion in part. It granted conditional collective action certification, limited the presumptively non-time-barred claims to those accruing between January 4, 2020, and February 2, 2021, authorized notice only to qualifying CDL B drivers, ordered related discovery, and directed the parties to submit a revised notice. The Clerk was directed to close the motion at Docket Number 157.