Drayton v. The City of New York
- Andrew Carter
- 1:18-cv-10138
- U.S. District Court · Southern District of New York
- 12
In Drayton v. The City of New York, Judge Aaron granted part and denied part of employees’ request to notify potential overtime-claim participants.
The order affects the named plaintiffs, more than 1,000 people who had already opted into the action, and potential current and former non-exempt employees of New York City’s Parks and Recreation or Transportation departments who worked overtime and received differential payments from September 11, 2017, onward. It also directs the City and the Department of Education to participate in the notice process.
What happened
In Drayton v. The City of New York, Anthony Drayton, Robert Lewis, and Santos Seda alleged that New York City and its Department of Education failed to include wage differentials when calculating overtime pay under the Fair Labor Standards Act. They asked the court to conditionally certify a group of similarly situated employees and allow notice to potential participants.
The court found that the employees made the modest factual showing needed at this early stage to show a common overtime-pay policy. It authorized notice to current and former non-exempt employees of the City’s Parks and Recreation or Transportation departments who worked overtime and received differential payments from September 11, 2017, onward. The court did not decide whether every potential participant’s claims were timely and allowed the defendants to challenge individual claims later.
Judge Stewart D. Aaron granted the motion in part and denied it in part. He denied the defendants’ requests to narrow the group by job title and to add language about possible future defense motions, but ordered removal of a separate sentence concerning possible retaliation. He directed the parties to meet about distributing the notice and required plaintiffs to submit a revised notice and a proposal for distribution within seven days.
The detailed version
- Drayton v. The City of New York · No. 1:18-cv-10138
- Andrew Carter
- Nov. 3, 2020
Background
Anthony Drayton, Robert Lewis, and Santos Seda brought this Fair Labor Standards Act (FLSA) action individually and for other similarly situated employees against the City of New York and the New York City Department of Education. They alleged that the defendants failed to include wage differentials—such as night-shift, weekend, driving, assignment, and longevity differentials—in the regular pay rate used to calculate overtime. The plaintiffs alleged that this resulted in underpaid overtime wages.
More than 1,000 individuals had already opted into the action, and 11 opt-in plaintiffs submitted declarations supporting the motion. The plaintiffs sought conditional certification of an FLSA collective and court-supervised notice to additional potential participants. The defendants argued that the plaintiffs had not shown that they were similarly situated to the proposed collective members, and they objected to the proposed notice and to equitable tolling.
Conditional Certification
The FLSA permits employees to sue for themselves and other employees who are similarly situated. At the conditional-certification stage, the court applies a relatively low standard: plaintiffs must make a modest factual showing that they and potential opt-in plaintiffs were victims of a common policy or plan that violated the law. The court generally does not decide the ultimate merits, resolve factual disputes, or make credibility determinations at this stage.
The plaintiffs proposed a group consisting of current and former employees of the New York City Department of Parks and Recreation or Department of Transportation who were classified as non-exempt, worked overtime, and received differential payments. The court found that the plaintiffs made the required showing that members of the proposed group were subject to the same policies concerning wage differentials and overtime. The court rejected the defendants’ argument that differences in job titles and responsibilities defeated conditional certification because the defendants had not shown that those differences affected the policy at issue.
The court therefore found that conditional certification was appropriate. The ruling was an initial determination; the court explained that after discovery it could later decide whether the opt-in plaintiffs were actually similarly situated and, if not, decertify the collective and dismiss those plaintiffs’ claims without prejudice.
Equitable Tolling and Notice Period
The FLSA generally provides a two-year limitations period, extended to three years for a willful violation. The limitations period for a potential collective member continues to run until that person files written consent to join the case. Equitable tolling can pause the limitations period in rare and exceptional circumstances, but the court stated that it could not determine at that time whether equitable tolling would apply to future plaintiffs.
Rather than decide the issue for future plaintiffs, the court directed that notice include potential collective members employed by the defendants since September 11, 2017, three years before the plaintiffs filed their certification motion. The court stated that the defendants could later challenge the timeliness of individual plaintiffs’ claims.
Form of Notice
The defendants asked the court to narrow the proposed group to employees in specified job titles. The court denied that request because it rested on the rejected premise that employees with different job titles were not similarly situated.
The court approved a notice addressed to current and former employees who worked for the New York City Department of Parks and Recreation or Department of Transportation, were classified as non-exempt, worked overtime, and received any type of differential payment from September 11, 2017, to the present.
The defendants also asked to add a statement that they planned to seek decertification or dismissal. The court denied that request, finding that the proposed language described litigation tactics and could discourage employees from joining. The court also ordered removal of a sentence telling recipients that they could contact plaintiffs’ lawyers or other lawyers if they believed they had been penalized, discriminated against, or disciplined because of the notice or lawsuit. The court found that sentence unnecessary because the notice already stated that retaliation is unlawful.
Disposition
Judge Stewart D. Aaron’s order states that the plaintiffs’ motion was granted in part and denied in part. The parties were directed to meet promptly about how to distribute the notice. Within seven days, the plaintiffs had to submit a revised notice for final approval and a joint proposal concerning distribution methods, or separate proposals if the parties could not agree.
Read the full 12-page opinion on CourtListener, the free public archive maintained by the Free Law Project.