Alvarado Balderramo v. Go New York Tours Inc.

Background

Victor H. Alvarado Balderramo, twenty-one opt-in plaintiffs, and other plaintiffs brought claims under the Fair Labor Standards Act (FLSA), the federal wage law, and New York labor laws against Go New York Tours Inc. and Asen Kostadinov. Balderramo alleged that he worked as a bus driver and that the defendants failed to pay minimum and overtime wages.

The case involved two different group-action procedures. Under FLSA section 216(b), the court conditionally authorized a collective action for bus drivers employed from March 27, 2012 onward who submitted written consent by November 25, 2016. Under Federal Rule of Civil Procedure 23, the court had previously certified a class involving bus drivers and tour guides employed from March 27, 2009 onward.

The parties later asked the court to clarify the Rule 23 class's membership and time period because they were close to settling. The defendants argued that the class included only bus drivers and that the class period ended either six years before the complaint or on November 25, 2016. They also argued that commonality ended when they installed a timekeeping clock on October 6, 2014.

Class Membership

The court corrected its earlier statement that the Rule 23 class included both bus drivers and tour guides. It explained that the plaintiffs had not made the required showing that tour guides were similarly situated. The evidence supporting the tour-guide request consisted primarily of one affidavit. That affidavit did not identify the other tour guides or state that the affiant personally knew they had been underpaid. The plaintiffs also had not mentioned tour guides in the original or amended complaint and did not provide additional supporting information after discovery.

The court concluded that the evidence did not satisfy Rule 23's requirements for a class of tour guides, including showing that the tour guides were numerous enough to make individual lawsuits impractical, suffered the same injury, were affected by the same unlawful conduct, and could be adequately represented by the plaintiffs. The Rule 23 class therefore consisted only of bus drivers.

Class Period

The court rejected the argument that the Rule 23 class period ended with the FLSA collective action's opt-in deadline. It explained that the two procedures operate differently: the FLSA collective action requires employees to opt in, while a Rule 23 class generally includes qualifying members unless they affirmatively opt out.

Because the parties had not yet sent Rule 23 notice explaining class members' rights and options, including the right to opt out, the court held that the class period remained open until an opt-out deadline was established and passed. The court also rejected the argument that the October 6, 2014 installation of a biometric time clock ended the class period. The court said the time clock did not resolve the common questions underlying the class claims, including overtime rates, maintenance pay, spread-of-hours compensation, and wage notices and statements.

Disposition

The court held that the Rule 23 class consisted of bus drivers employed from March 27, 2009 onward, with the end of the class period subject to an opt-out deadline. Before approving the settlement, the court required the parties to send notice to class members under Rule 23(c)(2)(B). Judge Edgardo Ramos ordered this clarification on January 29, 2020. The opinion does not state that the settlement was approved.