Pena v. SP Plus Corporation

Background

Oniel Pena brought a proposed collective and class action against SP Plus Corporation under the Fair Labor Standards Act (FLSA) and New York Labor Law. He sought unpaid minimum and overtime wages, liquidated damages, interest, and attorneys’ fees and costs. Pena alleged that SP Plus used an improper time-rounding system that failed to record some time worked and required employees to clock out for 30-minute meal breaks even when they had to remain available to assist customers.

Pena worked as a parking attendant primarily at SP Plus’s 140 West 51st Street facility in New York City from May 14, 2016, until January 25, 2018. He and non-party witness Demarlo Rhodes described similar alleged practices at several SP Plus parking facilities in New York City. They also reported that other parking attendants had complained about time rounding and meal breaks that they could not actually take. SP Plus disputed Pena’s claims and denied liability.

Motion and legal standard

Pena moved under 29 U.S.C. § 216(b) for conditional certification of an FLSA collective and for court-facilitated notice. He proposed a nationwide collective of parking attendants employed during the six years before the complaint was filed. In the alternative, parts of his briefing referred to all non-exempt employees, but the court limited its analysis to parking attendants because Pena had not described how other categories of employees were similarly situated.

At this early stage, the court applied the first step of the two-step FLSA collective-action process. Pena needed to make a modest factual showing that he and potential participants were victims of a common policy or plan that violated the law. The court stated that it would not resolve factual disputes, decide the ultimate merits, or determine credibility at this stage.

Conditional certification

The court found that Pena’s evidence did not support a nationwide or statewide collective. He had not provided evidence about SP Plus facilities elsewhere in New York State or in the rest of the country. The court nevertheless found enough evidence to support a collective covering parking attendants at SP Plus parking facilities in New York City.

The court relied on evidence that Pena and Rhodes held the same position, performed the same duties, and were subject to the same alleged rounding and meal-break practices. The court also considered evidence that other attendants at different New York City facilities reported similar problems, that SP Plus was the named owner of more than 200 licensed New York City parking garages, that it listed New York City job openings on a single website, and that attendants rotated among garages as needed. The court therefore granted Pena’s motion in part and conditionally certified a collective of parking attendants who worked at SP Plus parking facilities in New York City within the relevant period.

Notice and information disclosures

The court rejected the proposed six-year notice period. Because the FLSA generally provides a two-year limitations period, extended to three years for willful violations, and willfulness remained disputed, the court approved notice for the three years before the complaint was filed.

The court directed SP Plus to conduct a reasonable search for known email addresses and provide them, along with mailing addresses and telephone numbers, for notice distribution. It also approved translating the notice into Spanish and ordered the notice posted at each SP Plus parking facility in New York City. Potential participants would have 60 days from distribution of the notice to opt in. The parties were directed to meet and confer and submit a revised, redlined notice by June 4, 2021.

The court separately ordered SP Plus to provide, within 15 days of the opinion and order, a computer-readable list for the covered parking attendants containing names, last known mailing addresses, last known telephone numbers, known email addresses, work locations, and employment dates.

Equitable tolling and disposition

Pena also asked the court to pause the statute of limitations for all potential participants until notice was distributed. The court denied that request because the asserted lack of employee email addresses did not establish the rare and exceptional circumstances required for equitable tolling. The denial was without prejudice to an individual plaintiff seeking tolling by showing that it applies to that person’s particular circumstances.

Judge Sarah L. Cave therefore granted in part and denied in part the collective motion: she conditionally certified the New York City parking-attendant collective, ordered notice-related steps and disclosure of contact information, and denied Pena’s request for equitable tolling without prejudice to individual requests.