Mercado v. Metropolitan Transportation Authority

Background

Jeffrey Mercado, Tyrone Pringle, Adam Roman, Kevin Knois, and Edward Kalanz brought this Fair Labor Standards Act (FLSA) wage-and-hour case for themselves and others similarly situated. The defendants are the Metropolitan Transportation Authority and Triborough Bridge and Tunnel Authority. The plaintiffs are bridge and tunnel officers who are not members of a union executive board.

The plaintiffs alleged that the defendants violated the FLSA by requiring unpaid work before and after shifts, systematically reducing recorded work time, using incorrect overtime rates, and paying overtime four to six weeks after it was earned until July 1, 2020. They alleged that they and other bridge and tunnel officers had substantially similar job duties, were paid in the same manner, and were subject to the same policies and practices.

Conditional Certification

Under FLSA § 216(b), employees with similar claims may participate in a collective action by giving written consent. At the initial, conditional-certification stage, plaintiffs need only make a modest factual showing that they and potential participants were victims of a common policy or plan that violated the FLSA. The court does not decide at this stage whether an actual violation occurred. At a later stage, after a fuller record, the court may determine whether the people who opted in are in fact similarly situated and may decertify the collective action if they are not.

The court found that the plaintiffs met this initial burden. They submitted nine declarations describing substantially similar allegations of unpaid pre-shift and post-shift work, time being rounded forward when an officer clocked in late, delayed overtime payments, and improperly calculated overtime rates. The defendants did not oppose conditional certification, although they argued that certification could overlap with a collective action in a related case. The court rejected that argument because the proposed collective here excluded union executive board members, who could be exempt from the FLSA, while the other collective might include them.

The court therefore granted the motion for conditional collective-action certification. This ruling was preliminary and did not decide the ultimate merits of the wage claims.

Notice to Potential Participants

The court reviewed the plaintiffs’ proposed notice and tentatively approved it. It rejected the defendants’ proposed changes that would have removed the exclusion for union executive board members and required potential participants to send consent forms to an independent claims administrator. The court concluded that the notice should accurately exclude union executive board members and that potential participants who agreed to representation by the plaintiffs’ lawyers could return their consent forms to those lawyers, who would manage the notice process.

The proposed notice used a three-year period. The FLSA generally provides a two-year limitations period, but allows three years for willful violations. Because the plaintiffs alleged willful violations and the defendants did not contest the three-year period in their opposition papers, the court approved that period for the notice.

Disposition

The court granted the plaintiffs’ request to conditionally certify the matter as a collective action. It authorized the plaintiffs’ lawyers to send the revised notices at ECF No. 89-1 to potential opt-in plaintiffs by first-class mail and email.