Pierre v. City Of New York

Background

Burbran Pierre, along with 28 opt-in plaintiffs, sued the City of New York, the New York City Police Department, and several vendor defendants under the Fair Labor Standards Act (FLSA). The plaintiffs are past and present NYPD officers, detectives, sergeants, and lieutenants who participated in the NYPD’s Paid Detail Program, performing off-duty uniformed security work for participating businesses in exchange for hourly wages. The complaint also asserted claims against the vendor defendants under New York labor law and the Freelance Isn’t Free Act, as well as an individual FLSA retaliation claim against the NYPD.

The plaintiffs alleged that the defendants followed common practices of delaying payment for Paid Detail Program work for weeks or months after shifts were completed and failing to pay officers for all hours worked, resulting in pay below the federal minimum wage. The City defendants did not oppose conditional certification. The vendor defendants opposed certification and equitable tolling. Trihop 14th Street LLC had not appeared, and the clerk had entered default against it. The opinion also states that the plaintiff had reached a settlement with Whole Foods and was not seeking collective certification against Whole Foods in this motion.

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 potential opt-in plaintiffs were victims of a common policy or plan that allegedly violated the FLSA. The court does not decide factual disputes, credibility, ultimate legal issues, or whether an actual FLSA violation occurred.

The court found that Pierre satisfied this standard. Pierre and 14 opt-in plaintiffs submitted declarations stating that they participated in the Paid Detail Program, were paid in the same manner, and experienced similar alleged wage practices. Their submissions included allegations of delayed payments and unpaid hours, along with pay records, checks, assignment logs, and the program’s payment guidelines. The court rejected the vendor defendants’ arguments that the evidence was conclusory, that the officers were not sufficiently similarly situated, and that individualized issues made collective treatment inappropriate at this stage.

The court therefore granted conditional certification for all similarly situated NYPD police officers, detectives, sergeants, and lieutenants who performed work through the Paid Detail Program for any vendor defendant from July 3, 2017, to the present. The ruling was preliminary; the opinion explains that after notice, the opt-in period, and discovery, the court could later determine whether the plaintiffs were in fact similarly situated and could decertify the collective if appropriate.

Notice

The court approved the proposed notice’s content. It explained the lawsuit and proposed collective, the effect of joining or not joining, the voluntary nature of participation, the fact that the court had not decided the merits, the method for joining, the prohibition on retaliation, and relevant contact information. The court rejected the vendor defendants’ request to add more information about their planned litigation actions, including possible decertification, because that information would be confusing and premature.

The court granted notice by first-class mail, email, and workplace posting at the 77 NYPD precincts in New York City. It directed the City defendants to provide names, last known addresses, dates of employment, and personal email addresses for potential collective members. The court denied notice by text message because Pierre had not shown that mail, email, and precinct posting would be insufficient.

Equitable Tolling

Pierre requested that the FLSA limitations period be paused from November 2, 2021, when he filed the conditional-certification motion, through the end of the notice period. The court granted equitable tolling from November 2, 2021, through the date of the order, citing the approximately 10-month delay in deciding the fully briefed motion. The court did not extend tolling through the notice period because Pierre had not shown that extraordinary circumstances justified doing so.

Disposition

The court granted the motion for conditional certification, approved the proposed mail, email, and workplace-posting notices, denied text-message notice, and granted equitable tolling only from November 2, 2021, through the date of the order. The order did not decide whether the defendants actually violated the FLSA or were liable to the plaintiffs. Magistrate Judge Valerie Figueredo directed the clerk to terminate the motion.