Francisco v. Exclusive Management Solution Group

Background

Herlinda Francisco and Javier Bravo brought a collective and proposed class action against Exclusive Management Solution Group, Inc., unnamed corporations, and Dmitriy Berezovsky. They alleged violations of the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). According to the plaintiffs, the defendants operated 28 laundromats under common management and used common practices that required employees to work before and after scheduled shifts without recording or paying for that time. The plaintiffs also alleged that employees who worked at multiple locations were not paid overtime because their hours were not combined across locations.

The plaintiffs submitted declarations from themselves and five other former employees, along with other evidence. The court found that this evidence preliminarily supported a common pre-shift and post-shift time-shaving practice across the laundromats. It also found preliminary support for the allegation that hours were not aggregated for employees working at multiple locations. The court emphasized that conditional certification is an initial, low-threshold determination and does not decide factual disputes, credibility, or the ultimate merits of the claims.

Conditional Certification

The court conditionally certified an FLSA collective covering all current and former non-exempt employees employed by the defendants during the three years before the filing of the complaint. The collective extends to all 28 laundromat locations. The court rejected the defendants’ arguments that a written policy was required, that the employees’ evidence was conclusory, that the unpaid time was too small to count, and that differences among employees required limiting the collective to one location.

The court noted that Francisco and Bravo described 45 minutes of unpaid work per day—30 minutes before shifts and 15 minutes afterward—which amounted to 3.75 hours per five-day workweek. It found that the alleged unpaid time was not de minimis, meaning too minor or impractical to record to be legally considered. The court also found that differences in employees’ experiences did not defeat conditional certification because the employees shared factual or legal issues material to their FLSA claims.

Notice and Contact Information

The court approved the proposed notice and opt-in form, subject to specified changes. The notice may be distributed by mail, email, and text. The court required English and Spanish versions, directed that completed opt-in forms be sent to plaintiffs’ counsel, and approved a 90-day notice period. The notice must describe the federal collective claims accurately and distinguish them from the NYLL class claims.

The court rejected the plaintiffs’ request to notify employees going back six years. It explained that the FLSA generally provides a three-year limitations period when willful conduct is alleged, while the six-year period applies to NYLL claims. Because no class had yet been certified under Federal Rule of Civil Procedure 23, the court found that a six-year notice period could confuse employees who were not eligible to join the FLSA collective. The defendants must provide plaintiffs’ counsel, within 10 days, the names, last known home addresses, cell phone numbers, and email addresses of potential collective members in Excel format. Plaintiffs’ counsel must send the notice within 21 days after receiving that information, and the defendants must post the revised notice and opt-in form at each of the 28 laundromats within the time specified by the order.

Equitable Tolling and Disposition

The plaintiffs requested equitable tolling, meaning a pause in the statute of limitations, for potential opt-in plaintiffs until notice could be sent. The court denied that request at this time without prejudice. It found that the plaintiffs had not identified rare and exceptional circumstances, concealment by the defendants, or specific potential opt-in plaintiffs whose claims faced an imminent time bar. The court stated that it could consider tolling later based on individual circumstances after the notice period.

The court therefore granted in part and denied in part the plaintiffs’ motion to conditionally certify an FLSA collective. It conditionally certified the collective, approved modified notice procedures, ordered production of contact information, and denied equitable tolling at this time without prejudice.