Alvarado v. Villas Market Place Inc.

Background

Francisco Alvarado sued Villas Market Place Inc., doing business as Garden Gourmet Market, and Andreas Zoitas under the Fair Labor Standards Act (FLSA) and the New York Labor Law. Alvarado worked as a porter from January 2016 through March 2019. He alleged that the defendants rounded down his weekly hours, required him to work before clocking in and after clocking out, and required him to work during unpaid meal breaks. He also stated that he discussed similar practices with four coworkers.

Alvarado asked the court to conditionally certify an FLSA collective consisting of all current and former non-exempt employees who worked for the defendants during the six years preceding the complaint.

Legal standard

The FLSA allows employees to sue on behalf of themselves and other employees who are similarly situated. At the first, notice stage, the employee seeking certification must make a modest factual showing that the employees were victims of a common policy or plan that violated the law. The court does not decide at this stage whether an actual legal violation occurred. At a later stage, the court may remove the collective if the employees who joined the case are not actually similarly situated or were not subjected to an unlawful wage practice.

Conditional certification

The court granted Alvarado’s motion in part. It conditionally certified a collective of porters, cooks, and stock clerks who worked at Villas Market during the period beginning three years before the complaint and continuing to the present. In the conclusion, the court described the group as porters, cooks, and store clerks and specified the period as May 6, 2016, through the present.

The court found Alvarado’s sworn statements sufficient at this stage because he identified two cooks and two stock employees who allegedly told him that they worked before and after scheduled shifts without pay and that their hours were rounded down. The court rejected including other types of employees, such as cashiers, cleaners, and baggers, because Alvarado offered only general statements about them and no specific conversations, names, or other details showing that they were subject to the same policies.

The court emphasized that conditional certification did not decide whether the defendants’ pay practices were lawful. It noted that the defendants argued their practices complied with Department of Labor regulations concerning minor early or late time-clock punches. The court stated that the collective could be removed later if the defendants’ position proved correct.

Contact information and notice

Because the court conditionally certified the collective, it ordered the defendants to give Alvarado’s counsel the potential members’ names, addresses, email addresses, telephone numbers, and employment dates by January 17, 2020.

The court required the notice to go only to employees who worked at Villas Market within the three years before the complaint was filed and through the present, identified in the order as May 6, 2016, through the present. The notice’s footnote concerning New York Labor Law claims had to be removed. The notice also had to explain that the court, in its discretion, would decide whether to award attorneys’ fees and in what amount.

The parties were ordered to confer and jointly submit a revised proposed notice and a letter identifying any remaining disagreements by January 17, 2020. The submission also had to address whether the notice needed translation into languages other than English. The court declined to resolve all other objections to the proposed notice at that time.

Equitable tolling

The court denied Alvarado’s request for equitable tolling, which would have paused the FLSA limitations period for potential opt-in plaintiffs while notice was being sent. The court explained that tolling requires extraordinary circumstances that prevented timely filing and reasonable diligence in pursuing the claim. It found that Alvarado identified no delay that would prejudice future opt-in plaintiffs and noted that notice would be sent shortly and that the certification motion had been resolved in less than one month.

Disposition and further proceedings

Judge Valerie Caproni granted in part the motion for conditional certification, ordered production of potential members’ contact information and employment dates, required changes to the proposed notice, and denied equitable tolling during the notice period. The stay on discovery remained in place. The parties were scheduled to appear for a conference on April 17, 2020, to set a discovery schedule.