Johnson-Cradle v. KPS Affiliates Inc.

Background

Monalisa Johnson-Cradle brought a putative class and collective action against KPS Affiliates Inc. (KPS), PPB Inc. (PPB), and Terry English. She asserted claims under the Fair Labor Standards Act (FLSA) and the New York Labor Law, including claims for unpaid overtime, liquidated damages, statutory damages, fees and costs, and interest. She alleged that she worked as a security guard, generally worked 56 hours per week, and was not paid overtime at one and one-half times her regular rate for hours over 40.

Johnson-Cradle asked the court to conditionally certify an FLSA collective and facilitate notice to current and former nonexempt security guards, or similarly situated employees regardless of job title, who worked for the defendants anywhere in New York from February 7, 2016, onward. She also asked for employee contact information and for the court to pause the FLSA time limits for potential participants until notice was distributed.

The parties disputed which entity employed Johnson-Cradle and whether the companies followed the same pay practices. Johnson-Cradle relied primarily on her own declaration and conversations with other security guards at 1055 University Avenue in the Bronx. English stated that KPS and PPB were separate entities, that Johnson-Cradle worked only for KPS, and that KPS paid required overtime. The court emphasized that its description of Johnson-Cradle’s allegations was not a finding of fact for other proceedings.

Legal standard

Under Section 216(b) of the FLSA, employees may join a lawsuit about unpaid wages by filing written consent. At the first stage of the process, a court may conditionally certify a collective as a case-management step for sending notice to people who may be similarly situated. The plaintiff must make a modest factual showing that she and potential participants were affected by a common policy or plan that violated the law. The court does not normally resolve factual disputes, decide the ultimate merits, or determine credibility at this stage. After discovery, the court may decide whether the participants are actually similarly situated and may later decertify the collective.

Ruling on the collective

The court granted in part and denied in part Johnson-Cradle’s motion. It conditionally certified a collective consisting of nonexempt security guards who worked for KPS at 1055 University Avenue, Bronx, New York 10452, on or after February 7, 2019.

The court rejected the requested broader collective for several reasons:

- Johnson-Cradle did not provide a factual basis to include PPB or English’s other companies. The court could infer from the record only that she worked for KPS and spoke with KPS employees at the Bronx location. - She provided no evidence about compensation practices at other KPS locations in New York City or New York State. - The record concerned security guards and did not show that employees with other job titles were similarly situated. - Common ownership alone did not establish a uniform unlawful pay policy across separate companies.

The court did not resolve Defendants’ argument that the alleged overtime violations did not occur. It treated that argument as going to the merits and therefore not appropriate for resolution at the conditional-certification stage.

Notice and time period

The court directed the parties to meet and confer about a revised notice limited to KPS nonexempt security guards who worked at the Bronx location. Because Johnson-Cradle alleged willful FLSA violations, the court used a three-year notice period at this stage and set February 7, 2019, as the starting date.

The court declined to require KPS to post the notice at the Bronx location because KPS no longer provided security guards there. It also declined to require posting at other KPS locations because the record did not contain evidence about compensation policies at those locations. The parties were ordered to submit a revised notice within two weeks of the order, and the final order provided that the approved notice and consent form would be mailed to potential collective members, who would have 60 days from distribution to opt in.

Employee information

KPS was ordered to provide a computer-readable list for security guards who worked at the Bronx location during the three-year notice period. The list had to include each person’s name, last known mailing address, last known telephone number, known email address, and dates of employment.

The court denied Johnson-Cradle’s request for potential participants’ Social Security numbers and compensation rates, finding that information unnecessary and unduly invasive of employee privacy.

Equitable tolling and discovery

The court denied Johnson-Cradle’s request for equitable tolling without prejudice. Equitable tolling is a doctrine that can pause a legal deadline in unusual circumstances. The court found that Johnson-Cradle had not shown that potential participants had acted diligently or that extraordinary circumstances prevented them from pursuing their rights. The denial did not prevent individual opt-in plaintiffs from later seeking tolling based on their own circumstances.

The court granted the parties’ joint request concerning discovery and ordered them to meet and confer and submit a proposed schedule for completing any remaining discovery. The court also directed them to state whether they wanted a settlement conference.