Curry v. P&G Auditors and Consultants, LLC

Background

Kenneth Curry, Ricardo Mazzitelli, and Jacqueline Brown Pilgrim brought a proposed collective and class action against P&G Auditors and Consultants, LLC; GRC Solutions, LLC; PGX, LLC; and Apple Bancorp, Inc., doing business as Apple Bank for Savings. They asserted claims under the Fair Labor Standards Act (FLSA) and New York Labor Law, alleging that defendants failed to pay overtime to anti-money-laundering investigators (AMLs), team leads (TLs), and quality-assurance reviewers (QAs) who worked on two Apple Bank review projects.

The plaintiffs asked the court to conditionally approve an FLSA collective consisting of AMLs, TLs, and QAs who worked on both projects. They also sought contact information for potential participants and an order pausing the limitations period until notice was distributed. The Contractor Defendants argued principally that the plaintiffs were independent contractors rather than FLSA-covered employees. Apple Bank argued that the collective-action motion should be delayed until the court decided Apple Bank’s separate summary-judgment motion, which principally argued that Apple Bank was not the plaintiffs’ employer.

Conditional collective approval

The court explained that conditional approval at this early stage is a case-management procedure used to facilitate notice to people who may be similarly situated. It is not a final decision that an FLSA violation occurred. The court therefore would not resolve the parties’ dispute over employee versus independent-contractor status, decide the ultimate wage claims, resolve factual disputes, or make credibility findings.

The court found that the plaintiffs met the required modest factual showing. Their submissions indicated that AMLs, TLs, and QAs on the two projects worked under similar agreements, submitted hours through online systems, performed similar work at the same facility, and allegedly worked more than 40 hours per week without overtime premiums. The court also found sufficient allegations connecting the proposed collective to Apple Bank, including work at the Bank’s facility, use of its resources, signing its acceptable-use policy, and the Bank’s awareness of the workers’ presence.

The court rejected Apple Bank’s argument that the motion was premature because its summary-judgment motion was pending. It concluded that the pending motion did not justify delaying notice and directed that the notice identify Apple Bank as a defendant while explaining that Apple Bank disputed its status as a joint employer and sought summary judgment.

Notice and contact information

The court conditionally approved a collective of AMLs, TLs, and QAs who worked on Project 1/Lookback 2 or Project 2/Lookback 2 within three years before notice was distributed. The parties were directed to meet and confer and submit a revised notice for court review.

The notice was required to explain that people who join may have to participate in discovery and testify; include QAs as an eligible category; state that the court neither encourages nor discourages participation; and provide a 60-day opt-in period. The notice also had to use neutral language about disputed employment status, warn that an opt-in plaintiff or the plaintiff’s business entity might be responsible for litigation costs and could face crossclaims from the Contractor Defendants, and state that the defendants maintained the workers were independent contractors. The court did not require a warning about potential tax issues.

The court authorized distribution by mail, email, and text message. It also permitted the plaintiffs to send a reminder notice 21 days before the opt-in deadline. Defendants were ordered to provide names, last known mailing addresses, last known telephone numbers, known email addresses, work locations, and dates of employment for potential collective members, as stated in the conclusion of the order, by June 28, 2021.

Equitable tolling

Equitable tolling is a court-approved extension of a filing deadline in appropriate circumstances. The plaintiffs asked the court to extend the limitations period for all potential opt-in plaintiffs until notice was distributed. The court denied that request because the plaintiffs had not shown that the potential participants had diligently pursued their rights, and the circumstances offered—including the lack of certain workplace notices, the Contractor Defendants’ crossclaims, and awareness of an earlier related action—did not establish the required exceptional circumstances.

The court denied equitable tolling without prejudice. This allowed an individual plaintiff to request tolling later by showing that it applied to that person’s particular circumstances.

Disposition

The court granted the Collective Motion in part and denied it in part. It conditionally approved the FLSA collective, ordered notice-related revisions and disclosure of contact information, authorized the specified methods of notice, and denied the plaintiffs’ request for categorical equitable tolling without prejudice.