Ortiz v. Consolidated Edison Company of New York

Background

The plaintiffs moved under the Fair Labor Standards Act (FLSA) to conditionally certify a collective action, authorize notice to potentially affected workers, require the defendants to provide contact information, and pause the statute of limitations through equitable tolling. The eight named plaintiffs and 17 opt-in plaintiffs alleged that they worked as flaggers or spotters at Con Edison jobsites in New York City and Westchester County. They asserted that Con Edison, CE Solutions Group, LLC and related defendants, and various subcontractors jointly employed them and other workers, and that the defendants failed to pay overtime and sometimes paid wages late.

The proposed collective covered current and former flaggers and spotters who worked for the defendants from October 26, 2019, onward. The plaintiffs supported their motion with declarations describing alleged control over work assignments, supervision, timekeeping, hiring, firing, discipline, and pay practices. They also described alleged failures to pay overtime and timely wages.

Conditional Certification

The court applied the first step of the FLSA collective-action process. At this stage, plaintiffs need only make a modest factual showing that they and other workers were subject to a common policy or plan that violated the law; the court does not decide the ultimate merits, resolve factual disputes, or determine whether the defendants will ultimately be liable.

The court concluded that the declarations from nine plaintiffs, together with the 16 other individuals who had already opted into the case, were sufficient to meet that low threshold. The evidence supported the plaintiffs’ allegations that workers were subject to common employment practices and alleged overtime and wage violations. The court rejected the defendants’ arguments that differences in subcontractors, applications, timesheets, pay periods, or job assignments defeated conditional certification. It also found the plaintiffs’ showing sufficient as to the Concord defendants, although that showing was less detailed.

The court found the proposed collective definition too broad because it could include workers with no connection to the CESG Defendants’ contracts with Con Edison or to the related subcontracting arrangements. The parties were directed to discuss whether the definition should be revised as they prepared the notices.

Notice and Contact Information

The court approved notice by United States mail, email, and text message. It found text messages appropriate because of alleged employee turnover, the age of the case, the possibility that workers’ addresses and email addresses had changed, and evidence that text messaging was routinely used for work-related communications. The notice period was set at 60 days.

The notices were required to be provided in English, Georgian, and Spanish and to state that the defendants deny violating the law and that the court had taken no position on the merits. They also had to explain that people who join may be required to provide information, give a deposition, or testify in court. The court rejected requests to require additional language about potential legal costs, to include defense counsel’s contact information, or to direct opt-in plaintiffs to mail consent forms to the court.

The court denied the request to require notice through the CESG Defendants’ and Concord Defendants’ smartphone applications. It found that the CESG Defendants represented that their application was no longer in use, that the evidence suggested limited usefulness because of employee turnover, that mail, email, and text message notice provided substantial alternative methods, and that the plaintiffs had not shown a sufficient need for app-based notice.

The defendants were directed to work toward providing a single comprehensive list of potential collective members and their relevant contact information. Con Edison was not excused from producing information it later determined it possessed, although the court recognized that it might have no such information.

Equitable Tolling

The plaintiffs also sought equitable tolling from October 26, 2022, when the action began. Equitable tolling can extend a limitations period in extraordinary circumstances, but the person seeking tolling must show reasonable diligence and circumstances that justify tolling.

The court held that a categorical ruling for unknown future opt-in plaintiffs was not appropriate at this stage. The relevant diligence inquiry concerns the potential opt-in plaintiffs, not only the existing plaintiffs or their attorneys. Because the future opt-in plaintiffs had not yet been identified through notice and consent forms, the court could not determine whether they had acted diligently or faced extraordinary circumstances. The plaintiffs had not alleged that the defendants concealed the existence of their claims or provided specific facts about individual potential opt-in plaintiffs who faced unusual barriers.

The court therefore denied the motion for categorical equitable tolling, while stating that members who later opt into the collective may make individual applications for equitable tolling.

Disposition

The court granted the motion for conditional certification on the stated conditions and denied the motion for equitable tolling. The clerk was directed to close the pending motion at Docket Number 221.