Rivera v. The Anthem Companies, Inc.

Background

Jorge Rivera alleged that The Anthem Companies, Inc. and Healthplus HP, LLC violated the Fair Labor Standards Act (FLSA) and New York Labor Law. He said he worked for the defendants in several non-managerial positions at two New York City offices from November 2006 through January 2017. Rivera claimed that the defendants maintained an informal policy preventing employees from accurately reporting overtime they were required to work to meet productivity quotas.

Rivera moved for conditional certification of an FLSA collective action. A collective action allows employees with similar claims to join a case by filing written consents. He proposed a nationwide collective of non-exempt customer-service employees who worked during the six years before his complaint. He also requested court-approved notice, posting and distribution of the notice and consent forms, and employee contact and employment information.

The defendants opposed the request. They argued that the proposed collective was unclear and too broad, that their written policies complied with the FLSA, and that Rivera’s evidence did not support a nationwide group.

Legal standard

The court applied the Second Circuit’s two-step approach to FLSA collective actions. At the first step, the plaintiff must make a modest factual showing that he and potential opt-in plaintiffs were victims of a common policy or plan that violated the law. This is a preliminary, low standard; the court may revisit whether the employees are actually similarly situated after notice, the opt-in period, and discovery.

The court declined to resolve the defendants’ arguments about whether their official policies were lawful or to make credibility findings based on competing employee declarations. Those issues were premature at the conditional-certification stage.

Court’s analysis

The court found that Rivera and former co-worker and opt-in plaintiff Niurka Abreu alleged that they and at least sixteen other non-managerial Retention Associates and Facilitated Enrollers at six New York City offices were subject to the alleged overtime-reporting practice. The court also concluded that the proposed collective could include non-managerial Medicaid Representatives. The employees did not need to be identical in every respect; they needed to be similarly situated regarding the alleged unlawful policy or practice.

The court did not find enough evidence to support a nationwide collective. Rivera and Abreu lacked personal knowledge of similar practices at other locations, and Rivera offered no additional evidence supporting an inference that employees throughout the country faced the same practice. The defendants’ nationwide written policies did not address individual performance goals, and the managers’ alleged instructions supported, at most, an inference of a localized policy.

The court also limited the notice period. Although Rivera sought a six-year period, the court stated that the FLSA’s maximum limitations period for willful violations is three years. It selected a three-year period measured from May 10, 2019, the date Rivera filed the certification motion. The court also concluded that the limitations period for potential opt-in plaintiffs should be paused from the filing of the motion until notice could be provided.

Disposition

The court granted conditional certification of a collective consisting of non-managerial Retention Associates, Facilitated Enrollers, and Medicaid Representatives employed by the defendants at any New York City office from May 10, 2016, to the present. The order did not decide whether the defendants actually violated the FLSA or New York Labor Law.

The parties were directed to meet and confer about revised notice and consent forms and, if possible, submit mutually acceptable forms within seven days. If they could not agree, they were required to submit their separate proposals with a joint letter describing their differences. The court scheduled a teleconference to address the forms, the method of distribution, and any needed changes to discovery. The clerk was directed to terminate the motion at Docket No. 59.