Duran v. R&L Interior Renovations and Construction, Corp.

Background

Nelson Duran sued R&L Interior Renovations and Construction Corp. and Luis Fermin over alleged violations of the Fair Labor Standards Act (FLSA) and New York Labor Law. He alleged that he worked as a laborer, regularly worked more than 40 hours per week, and received a flat daily wage that did not comply with minimum-wage or overtime requirements. He also alleged failures to provide wage statements, spread-of-hours wages, and a wage notice. Yuri Cabrera opted into the action and submitted a supporting declaration.

Duran moved for conditional certification of an FLSA collective consisting of current and former non-managerial assistants, laborers, and people in similar positions who worked for R&L during the relevant FLSA period. He also asked the court to approve proposed notices, require R&L to provide identifying and contact information for potential collective members, and toll the FLSA limitations period while the court considered the motion.

Conditional certification

The court explained that FLSA collective certification uses a two-step process. At the first step, the plaintiff has a low burden to make a modest factual showing that the plaintiff and potential opt-in workers were victims of a common policy or plan that violated the law. A later stage, based on a fuller record, determines whether the workers who joined are in fact similarly situated.

The court found that Duran and Cabrera met the first-step standard. Their declarations stated that they regularly worked more than 40 hours per week and were paid flat daily rates. Duran also identified specific coworkers and conversations supporting his assertion that other non-managerial assistants and laborers were paid in the same or a similar way. The court held that workers need not be identical in every respect and that differences in their particular construction tasks and pay rates did not defeat certification because the shared issue was whether R&L failed to pay legally required wages.

The court therefore granted conditional certification under 29 U.S.C. § 216(b).

Notice and production of information

The court approved the proposed notice’s general content and a 60-day period for potential members to opt into the action. It rejected notice covering six years before the complaint because the plaintiffs had not moved to certify a class for their New York Labor Law claims and the proposed notice did not explain the different limitations periods for state and federal claims. The court instead approved notice for the three-year period before the complaint was filed on November 6, 2020.

The court ordered R&L, within 14 days, to provide a computer-readable file containing the names, last known mailing addresses, known home and mobile telephone numbers, known email addresses, employment dates, and primary languages of potential collective members who worked for R&L from November 6, 2017, to the present.

The court also approved reminder notices after 30 days; distribution by mail, text message, and email; notice in English, Spanish, and any other language identified by R&L’s records; and posting of the notice at 3315 Hull Avenue in the Bronx. R&L was required to provide an affidavit confirming compliance and stating that the notice would remain posted and unobstructed during the 60-day opt-in period.

Equitable tolling

Equitable tolling pauses a limitations period for a specified time. The court held that R&L misunderstood the plaintiffs’ request because the complaint had been filed timely. The plaintiffs instead sought tolling for the period during which the court considered their timely certification motion.

The court granted that request and tolled the limitations period for all potential collective members’ FLSA claims from March 19, 2021, the date the motion was filed, through October 18, 2021, the date of the order.

Disposition

Judge Alison J. Nathan granted Duran’s motion, conditionally certified the FLSA collective, approved the modified notice and related procedures, ordered R&L to produce the specified information, required workplace posting, and tolled the limitations period for the stated dates. The order resolved docket number 22 and required the parties to submit a joint letter and proposed case-management plan by November 1, 2021. The opinion did not decide whether R&L ultimately violated the wage laws or whether the claims would succeed on the merits.