Abundiz Carranza v. VBFS, Inc.

Background

Fili Abundiz Carranza sued VBFS, Inc., doing business as M&M Market Deli, and Virgilio Branco and Fernando Pinho Sanches, identified as M&M's former owners and managers. He brought claims under the Fair Labor Standards Act (FLSA) and New York Labor Law, alleging that Defendants failed to pay minimum wage and overtime, failed to provide required wage notices and statements, and required delivery workers to pay vehicle-related expenses. Carranza also alleged that Defendants breached an implied contract by requiring him to pay the costs of maintaining his bicycle, which he used for deliveries.

Carranza moved for conditional certification of an FLSA collective action. Conditional certification is an early-stage ruling allowing potentially similarly situated employees to receive notice and decide whether to join the case; it is not a final decision on whether Defendants violated the law. Carranza also sought permission to distribute notice, an order requiring Defendants to provide identifying information about former employees, a 90-day period for employees to opt in, and equitable tolling of the FLSA limitations period during that period.

Carranza submitted a sworn affidavit describing his pay, work hours, lack of wage statements, lack of overtime pay, and bicycle expenses. He also described conversations and observations involving coworkers and submitted a spreadsheet concerning several employees. Defendants did not oppose conditional certification at this stage, but they disputed the proposed collective's definition, the length of the opt-in period, equitable tolling, posting notice at M&M's former premises, and several proposed notice methods.

Court's Analysis

The court held that Carranza met the modest factual showing required at the conditional-certification stage. His affidavit and supporting materials sufficiently supported an inference that he and other non-managerial employees were subject to common wage-and-hour practices. The court noted that evidence from one plaintiff's affidavit, including hearsay and personal observations, can be considered at this preliminary stage.

The court adopted Defendants' proposed collective definition: all former non-exempt and non-managerial employees who previously worked for Defendants at M&M Market Deli, formerly located at 529 Broome Street, New York, New York 10013, from March 28, 2017, through February 28, 2020, and who timely opt in by filing a consent form. The court relied on Defendants' representations that M&M permanently ceased operations on February 28, 2020, and had no current employees.

The court ordered Defendants to provide, to the extent they possessed the information, former employees' names, last-known telephone numbers, addresses, and email addresses in a reasonably convenient format. Defendants also had to provide any WhatsApp, WeChat, or Facebook contact information they possessed for former non-managerial employees.

The court approved use of a three-year limitations period in the notice because Carranza alleged willful FLSA violations and Defendants did not object to using that period for notice purposes. The court set the opt-in period at 60 days rather than the requested 90 days, finding that general concerns about the COVID-19 pandemic and international travel did not establish special circumstances for a longer period.

The court declined to toll the limitations period at that stage. It stated that the request was premature and that Carranza had not shown exceptional circumstances. The court expressly made this ruling without prejudice to resubmitting the request after additional discovery or facts supported it.

The court approved distributing notice in English and Spanish by mail, email, text message, and targeted social-media messages. It also permitted posting the notice on Plaintiff's counsel's website, allowed the notice to omit Defendants' attorneys' information, and approved reminder messages by mail and email halfway through the opt-in period. The court denied requests to require notice posting at M&M's former store or in employee pay envelopes, and it denied permission to post a short-form notice in public social-media groups.

Disposition

Judge Katharine H. Parker concluded that Carranza's motion for conditional certification and related requests were granted in part and denied in part. The parties were directed to meet and confer and file a draft notice by April 16, 2021, consistent with the opinion.

Practical Effect

The order allowed the specified former M&M employees to receive information about the case and choose whether to join the FLSA collective within 60 days after notice. It did not decide whether Defendants ultimately violated the FLSA, New York Labor Law, or the alleged implied contract.