Han v. Madison Avenue Realties, LLC

Background

Chang Soo Han brought claims under the Fair Labor Standards Act (FLSA), a federal wage law, and the New York Labor Law against Madison Avenue Realties, LLC and its president, Edward Eden. Han alleged that he worked as a building maintenance worker from about January 2000 through about August 31, 2019, regularly worked more than 40 hours per week, and was paid only a straight hourly rate without overtime compensation or spread-of-hours pay. The complaint also asserted a claim concerning required wage statements.

Han moved under 29 U.S.C. § 216(b) to conditionally certify an FLSA collective action consisting of non-exempt building maintenance employees of Madison Avenue Realties. He also sought approval of a proposed notice and consent form, permission to post the notice at Defendants’ workplace, equitable tolling of the FLSA limitations period, and discovery of potential collective members’ identifying and employment information.

Conditional certification

At the first stage of FLSA collective-action review, a plaintiff must make a modest factual showing that the plaintiff and potential opt-in members were subject to a common policy or plan that violated the law. The court found that Han met that standard. In a declaration, Han identified seven building maintenance workers who performed the same type of work and stated that he discussed wages and work with them and learned that they were not paid overtime or spread-of-hours premiums. Pay records also showed that some identified employees worked more than 40 hours in certain weeks.

The court rejected Defendants’ argument that Han needed declarations from other employees. It explained that a plaintiff’s own observations and conversations can support conditional certification at this early stage, although the burden is not nonexistent and conclusory allegations alone would not be enough.

The court found that Han’s proposed collective was too broad. It conditionally certified a collective limited to current and former building maintenance workers employed by Madison Avenue Realties who were assigned to work at 240 Madison Avenue. The court did not impose Defendants’ requested limitation to employees with the specific job title of building superintendent at this stage. Defendants remain able to seek decertification after discovery if the opt-in plaintiffs are not actually similarly situated.

Notice period and discovery

The court authorized notice for the three-year period before the filing of the complaint. It explained that the FLSA limitations period is generally two years, or three years for willful violations, and stated that using the three-year period at this stage would preserve notice to potentially eligible workers. The court also stated that challenges to the timeliness of individual opt-in claims could be addressed later, including in a motion for decertification.

The court allowed discovery of potential members’ names, mailing addresses, email addresses, telephone numbers, and dates of employment. It denied Han’s request for Social Security numbers because he had not made a sufficient showing for that information at this stage.

Equitable tolling and notice procedures

The court denied Han’s request for equitable tolling. It stated that filing an FLSA claim or a motion for conditional certification does not automatically stop the limitations period for potential members. Any later request for tolling would need to rely on individualized facts showing that a person diligently pursued the claim.

The parties were ordered to meet and confer regarding the notice’s form. The notice may refer to both the FLSA and New York Labor Law claims, but it must make clear that a consent to join makes an employee a claimant only as to the FLSA claims. The court rejected Defendants’ request to warn potential opt-in plaintiffs that they could be liable for Defendants’ costs if Defendants prevailed, finding that language unnecessary and potentially confusing.

The court approved distribution of the notice by United States mail and email and approved posting notices in common employee spaces. Consent forms could be returned to Han’s counsel, but counsel was ordered to file them on the electronic docket on the day they were received.

Disposition

The court stated: “Plaintiffs motion GRANTED IN PART and DENIED IN PART.” The Clerk of Court was directed to close the motion docket entry.