Burgard v. International Business Machines Corporation

Background

Cheryl Burgard sued International Business Machines Corporation (IBM) on behalf of herself and other similarly situated employees. Her claims included alleged unpaid overtime under the Fair Labor Standards Act (FLSA), as well as several New York Labor Law claims involving overtime, unpaid wages, wage deductions, and inaccurate wage statements.

Burgard alleged that she worked as an IBM Executive Assistant from approximately 1986 through February 2023 and regularly worked more than 40 hours per week, including work before or after her scheduled hours and on weekends. She alleged that IBM knowingly failed to pay Executive Assistants for off-the-clock overtime and discouraged or retaliated against them for reporting their actual hours. Eight other current or former IBM Executive Assistants had opted into the case by the time of the opinion.

Burgard moved for conditional certification under 29 U.S.C. § 216(b). At this initial stage, the court asks whether the named plaintiff has made a modest factual showing that she and potential opt-in plaintiffs were subject to a common policy or plan that violated the law. The court does not resolve factual disputes, decide credibility, or determine whether the alleged violations actually occurred.

Conditional Certification

The court relied on Burgard’s declaration and declarations from five opt-in plaintiffs. The declarations stated that the employees were IBM Executive Assistants, generally worked the same scheduled shifts, worked more than 40 hours per week, were not paid for overtime, and experienced threats or retaliation for recording overtime. The court concluded that this evidence showed that similarly situated IBM Executive Assistants in New York may have been affected by a common policy of knowingly failing to pay overtime wages.

The court rejected IBM’s arguments that the evidence was too vague and that competing declarations and performance evaluations defeated certification. At this stage, the court would not resolve conflicting evidence. The court also declined IBM’s request to limit the collective to Pay Band 4 employees or to employees who reported to three particular managers. IBM acknowledged that Pay Band 4 and Pay Band 5 Executive Assistants had the same title, scheduled shifts, and eligibility for overtime, and the court found that Burgard’s allegations concerned a policy extending beyond particular managers.

The motion to conditionally certify a collective action under the FLSA was granted. The collective was defined as all current and former IBM Executive Assistants in New York who worked more than 40 hours per week, including on-the-clock and off-the-clock work, within three years before the date notice is transmitted.

Notice

Burgard proposed sending notice by certified mail, email, text message, and posting at IBM’s workplace. The court agreed with IBM that notice should be limited to first-class mail and personal email. It rejected text-message notice because the evidence showed that IBM Executive Assistants typically held their positions for years rather than experiencing the high turnover that can support text notice. It also rejected workplace posting because Burgard did not show that posting was necessary to reach potential opt-in plaintiffs.

The parties were directed to meet and confer about the notice and consent form. Within 21 days of the opinion and order, they were required to file a joint letter containing an agreed form or briefly explaining any remaining disagreements.

Equitable Tolling

Burgard asked the court to pause the FLSA limitations period from July 25, 2024, until the end of the court-ordered opt-in period. The court denied that request. It found that Burgard had not shown extraordinary circumstances and had not identified specific potential opt-in plaintiffs whose claims were at risk of becoming time-barred. The court characterized the request for broad tolling for unknown individuals as an improper request for wholesale equitable tolling.

Contact Information and Sealing

IBM did not object to producing information about potential opt-in plaintiffs. The court ordered IBM, to the extent it had not already produced the information in discovery, to promptly provide Plaintiff’s counsel with a computer-readable file containing the names, last known addresses, mobile telephone numbers, email addresses, and dates of employment of Executive Assistants employed in New York during the three years before the complaint was filed.

The court also granted IBM’s motion to seal employment performance evaluations. The opinion states that the parties treated those evaluations as sensitive information and that IBM satisfied the applicable standards for sealing.

Disposition

The court granted Burgard’s motion to conditionally certify an FLSA collective action. It denied Burgard’s request for equitable tolling and granted IBM’s motion to seal. The court directed the parties to confer regarding the notice and consent form and terminated the pending motion sequences at Documents 37 and 40. The conditional-certification ruling did not decide the ultimate merits of Burgard’s overtime or other wage claims.