King v. Fedcap Rehabilitation Services, Inc.

Background

Harold King sued Fedcap Rehabilitation Services, Inc. and Wildcat Service Corporation under the Fair Labor Standards Act and New York Labor Law. He alleged that the defendants failed to pay overtime to him and other employees by requiring work beyond scheduled shifts, rounding recorded time down, automatically deducting meal breaks that employees did not take, and failing to pay for certain travel time. The opinion also notes that King alleged other claims under New York and New York City human-rights laws, but those claims were not relevant to this motion.

King moved for conditional certification of an FLSA collective action. The proposed collective covered current and former non-exempt employees whose labor and services the defendants contracted out through their staffing programs from February 28, 2014, onward. The defendants argued that King and potential collective members were not similarly situated and that their claims would require individualized proof.

Legal standard

At the first stage of an FLSA collective action, a plaintiff must make a modest factual showing that the plaintiff and potential opt-in workers were victims of a common policy or plan that allegedly violated the law. The court does not decide the ultimate merits, resolve factual disputes, or determine witness credibility at this stage. After discovery, the defendants may seek to challenge the collective, and the court may conduct a more searching review.

Conditional certification

The court found that King met the initial standard for non-managerial employees regarding alleged practices of rounding down work hours and deducting pay for work performed during meal breaks. The court relied on King's allegations, his declaration, conversations he described with coworkers, timesheets, and a declaration and records from another former employee. The materials described alleged similar practices affecting laborers and maintenance workers at multiple locations.

The court did not find sufficient evidence that King and potential opt-in plaintiffs were similarly situated concerning unpaid travel time. King had not included that allegation in his amended complaint, and his submissions did not show that he personally traveled between work locations. That failure did not prevent certification based on the other alleged overtime practices.

The court therefore granted conditional certification for all non-managerial employees employed by Fedcap and Wildcat from February 28, 2014, to the present. This was an initial certification only and did not decide whether the defendants actually violated the FLSA.

Notice and consent forms

The court directed the parties to submit a revised notice and a joint letter within 30 days. The notice must remove references to New York Labor Law because King had not moved for certification of those state-law claims. The court approved a three-year notice period and allowed the notice to be distributed in English and Spanish. It also required the notice to identify defense counsel and provide their contact information.

The court declined to require posting the notice at the defendants' workplaces, finding posting unnecessarily duplicative and potentially disruptive because the defendants could provide contact information for potential collective members. Opt-in consent forms must be sent directly to the Clerk of Court rather than to King's counsel.

Employee information

The court ordered the defendants to provide, in electronic format and to the extent contained in their records, the names, titles, employment dates, last known mailing addresses, email addresses, and known telephone numbers of covered employees. The court rejected King's request for Social Security numbers and compensation rates as overly broad and unnecessary for distributing notice. The defendants were not required to investigate beyond their records.

Equitable tolling

The court found that equitable tolling of the FLSA limitations period was appropriate at least through the date of the Opinion and Order because the certification motion had been pending for several months. It did not set an end date because the notice had not yet been approved or distributed. The parties were directed to meet and confer about the end date and address any disagreement in their joint letter.

Disposition

The court granted King's motion for conditional certification. It conditionally certified the non-managerial employee collective, ordered production of the specified contact information, and directed the parties to submit a revised notice and joint letter within 30 days.