Martinez v. JLM Decorating, Inc.

Background

Israel Martinez sued JLM Decorating Inc. and other defendants under the Fair Labor Standards Act (FLSA) and the New York Labor Law, alleging that the defendants failed to pay overtime wages. Carlos Benites and Rafael Brito later joined the action. The plaintiffs alleged that the defendants jointly operated a commercial painting business and that non-managerial employees, including painters, were not paid for overtime hours.

The plaintiffs moved for conditional certification of an FLSA collective action and submitted declarations describing their work hours, lack of overtime pay, and knowledge of other employees with similar experiences. The defendants opposed certification and challenged parts of the proposed notice to potential collective members.

Conditional certification

The court explained that FLSA collective certification uses a two-step process. At the first step, the court makes an initial decision about whether potential plaintiffs who may be similarly situated should receive notice. The plaintiff’s burden at this stage is low: the plaintiff must make a modest factual showing that the workers were affected by a common policy or plan that violated the law.

The court held that the plaintiffs met that burden. Their declarations identified co-workers, described similar painting duties and work hours, and supported the allegation that the workers were not paid overtime under a common policy or scheme. The court rejected the defendants’ argument that differences in work locations, payment methods, and hours defeated certification. Under the governing standard, the court said, differences in other respects do not prevent collective treatment when the workers share material legal or factual issues. The court therefore conditionally certified the FLSA collective.

This was conditional certification at the initial stage. The opinion explains that, at a later stage and on a fuller record, the court may determine whether the workers who join the case are in fact similarly situated.

Equitable tolling

The plaintiffs asked the court to pause the FLSA statute of limitations from the filing of the certification motion through the date of the opinion. The court declined to do so because the plaintiffs did not explain how the case involved substantial delay and did not provide another basis for pausing the limitations period.

Notice to potential collective members

Because the court conditionally certified the collective, it authorized notice to potential members and ordered the parties to jointly submit a new proposed notice consistent with the opinion.

The notice period must be three years, rather than six years, and must be measured backward from the filing of the complaint. The court reasoned that the proposed notice concerned the FLSA collective, not the plaintiffs’ state-law claims, and that a six-year period could confuse workers whose FLSA claims were time-barred.

The court denied the defendants’ requests to restrict the production of the plaintiffs’ personal contact information and to prohibit telephone numbers. The court stated that notice may be disseminated by mail, email, text message, and social-media chat.

The revised notice may not refer to the plaintiffs’ state-law claims. It may provide a 60-day period for potential members to opt in, rather than the 45-day period requested by the defendants. The court denied the defendants’ requests to add a warning about potential litigation costs and to state specifically that the defendants opposed collective certification. The court also denied the request to remove information about the FLSA’s protection against retaliation.

The court addressed the defendants’ request to include defense counsel’s contact information but did not describe that request as denied; instead, it stated that defense counsel’s contact information is generally appropriate and that the parties could draft the notice to clarify which counsel represents which party. The court granted the defendants’ request to remove the phrase “at your own expense” from the provision concerning a potential member’s right to retain different counsel.

Disposition

The court’s conclusion states that the plaintiffs’ motion was GRANTED. The court did not toll the statute of limitations, resolved the notice disputes as described above, ordered the parties to submit a joint revised notice by October 7, 2021, and scheduled an initial pretrial conference for October 8, 2021.