Bocel v. Patzeria Family & Friends Inc.

Background

Ricardo Bocel brought claims under the Fair Labor Standards Act (FLSA) and New York Labor Law on behalf of himself and similarly situated workers. The defendants were Patzeria Family & Friends, Patzeria Perfect, Joseph Azzolino, and Shkelzen Ulaj. The proposed group included bussers, cashiers, cooks, dishwashers, delivery persons, food runners, and servers who had worked for the defendants during the relevant period.

Bocel said he worked as a dishwasher and delivery person from around 2014 until around February 2, 2020. He reported working approximately 62 hours per week, receiving a fixed weekly salary paid in cash, receiving no pay stubs, and not being paid overtime for hours over 40 in a workweek. He also alleged that he was not paid New York minimum-wage and spread-of-hours supplements. His declarations identified approximately 15 other employees whom he said worked similar schedules and were paid fixed weekly amounts regardless of their hours.

Conditional certification

The court applied the first step of the FLSA collective-action process. At this stage, a plaintiff must make a modest factual showing that the plaintiff and other workers were victims of a common policy or plan that violated the law. The court does not decide factual disputes, credibility, or the ultimate merits at this stage.

The court found that Bocel made the required showing. It concluded that Bocel and at least 15 other employees performed similar duties and were allegedly subject to the same practices, including fixed weekly pay without overtime. The court therefore granted conditional certification for the identified categories of workers. This ruling allowed notice to be sent to potential participants; it did not determine that the defendants violated the FLSA or New York law.

The defendants argued that they had no records showing Bocel worked for them and challenged the detail and support for his declarations. The court rejected those arguments at this stage. Bocel clarified that he had used the name “Alex Perez” while working for the defendants, and the court stated that it would not resolve factual disputes or make credibility determinations during conditional certification.

Notice period and equitable tolling

Bocel requested notice covering six years before the court’s certification order. The court denied certification of an FLSA collective longer than three years because the FLSA generally has a two-year limitations period, extended to three years for alleged willful violations. The court granted the six-year notice period because the complaint also asserted New York Labor Law claims, which have a six-year limitations period identified in the opinion.

Bocel also requested equitable tolling, which would have paused the limitations period from the filing of the motion until notice could be sent. The court denied that request, finding that Bocel had not shown the extraordinary circumstances required for tolling.

Notice and disclosure

The court approved the proposed notice and reminder. It authorized notice by email, text message, and social-media messaging, and ordered the defendants to permit posting in a common, non-public employee space at Patzeria Family & Friends. The notice stated that people who joined the case might need to testify at a deposition or trial.

The court granted the request for expedited disclosure in part. It ordered the defendants to provide, in electronic format by May 17, 2022, a list of covered workers from the past six years, along with the information specified in the order, including names, last-known addresses, telephone numbers, email addresses, Social Security numbers, employment dates, titles, compensation rates, and weekly hours. The defendants were not required to provide social-media handles. The order set May 24, 2022, as the deadline for publishing notice and July 25, 2022, as the deadline for individuals to join the collective.

Disposition

The court granted conditional certification, denied Bocel’s motion for equitable tolling, approved the proposed form and manner of notice, and granted expedited disclosure in part. The clerk was directed to close the motion. The opinion did not resolve the ultimate wage-and-hour claims.