Kargar v. Kamolov

Background

Sabina Kargar, Sergio Perez Diaz, and Shaina Foster sued FV Com Corporation, doing business as “Farida,” Farida Online Kitchen, doing business as “Farida Authentic Delicious Food 24/7,” and other defendants. The plaintiffs asserted claims under the Fair Labor Standards Act (FLSA) and the New York Labor Law. They moved for conditional certification of an FLSA collective action, meaning a group of similarly situated employees who may receive notice and choose to join the case, and for approval of a notice and consent-to-join form.

Conditional Certification

The court granted the plaintiffs’ motion for conditional certification. At this preliminary stage, the plaintiffs had to make a modest factual showing that they and potential opt-in plaintiffs were victims of a common policy or plan that violated the law. The court concluded that the First and Second Amended Complaints and two declarations satisfied that burden.

Notice and Related Rulings

The court approved the proposed collective-action notice and consent form subject to several changes and conditions:

- The plaintiffs’ categorical request for equitable tolling—an extension of a legal deadline—was denied without prejudice to an individual opt-in plaintiff’s later application based on an individualized showing. - The notice must state that the defendants dispute the plaintiffs’ claims, but it does not need to describe the defendants’ defenses in detail. - The defendants’ requests to include defense counsel’s contact information and a statement that opt-in plaintiffs could face discovery or a potential counter lawsuit were denied. - Because the preliminary certification concerned only the FLSA, the request to notify all non-exempt employees employed during the six years before the complaint was filed was denied. Notice must instead be sent, with a Spanish translation, to current and former non-exempt employees employed by the defendants during the three years before the complaint was filed. - The defendants must post notices in English and Spanish in a conspicuous, non-public location at their places of business. - Within fourteen days after the order, the defendants must provide the required information for covered employees in Excel format. Social Security numbers must not be provided initially. If a notice is returned as undeliverable, the defendants must provide that individual’s Social Security number to the plaintiffs’ counsel for the limited purpose of identifying a new mailing address. The information must then be destroyed under the procedures specified by the court. - The plaintiffs’ proposed methods of distributing the notices were approved subject to these conditions, but the request to include notices and consent forms with current employees’ paychecks was denied. The plaintiffs must send the notices no later than fourteen days after receiving the covered-employee information. - Within two weeks, the parties must file a joint letter addressing whether the order requires changes to pending deadlines.

Disposition

Judge Jesse M. Furman granted the motion for conditional certification and approved the notice and consent form subject to the listed rulings. The order also directed the Clerk of Court to terminate ECF No. 61. This order addressed conditional certification and notice procedures rather than entering a final decision on the underlying wage claims.