Recio v. D'Almonte Enterprises Parking Garage, Inc.

Background

Isidro Recio, Dario Almonte, Radhames Rodriguez, Jose Pichardo de la Cruz, and Ulrich Zimerman Hernandez sued D’Almonte Enterprises Parking Garage, Inc., Ramcell Parking Corporation, IB Parking Lot, Inc., 119 Parking Lot Corporation, Rafael Almonte, Dayhana Martinez, Kelvin Mejia, Ariel Reyes, and Miguel Velazquez. The complaint asserted claims under the Fair Labor Standards Act, a federal wage-and-hour law, and New York wage-and-hour laws.

The plaintiffs alleged that they and other parking garage attendants performed similar non-managerial work, including parking and retrieving vehicles, handling tickets, and collecting fees. They alleged that the defendants required attendants to work off the clock, paid less than the required minimum wage, failed to pay overtime at one-and-a-half times the regular rate, and deducted cash from pay for vehicle damage or customer underpayments.

The plaintiffs moved under Section 216(b) of the Fair Labor Standards Act for conditional approval of a collective action and authorization to send notice to potential members. Their proposed collective included current and former parking garage attendants employed by the defendants from July 19, 2019, through the present, excluding managers, supervisors, officers, executives, and other managerial or administrative personnel.

Legal standard

The court explained that conditional approval at this stage is a case-management tool that allows notice to be sent to potential plaintiffs. It does not determine whether the defendants actually violated the law. Under the first step of the process used in the Second Circuit, plaintiffs must make a modest factual showing that they and potential opt-in plaintiffs were victims of a common policy or plan that violated the Fair Labor Standards Act. The court does not weigh the merits, resolve factual disputes, or decide witness credibility at this stage.

After employees opt in and discovery is completed, the court may conduct a more demanding second-stage review of whether the opt-in plaintiffs are actually similarly situated. The court may later remove plaintiffs from the collective if that requirement is not met.

Court’s analysis

The court found that declarations from Recio, Dario Almonte, and opt-in plaintiff Ramon Muñoz described similar jobs and alleged similar failures to pay minimum wage and overtime, as well as regular unpaid off-the-clock work. The declarations also identified other coworkers who allegedly experienced the same practices. The court held that this evidence was sufficient to show at this preliminary stage that non-managerial parking garage attendants were similarly situated.

The court rejected the defendants’ request to assess the plaintiffs’ credibility or require additional verification from the coworkers identified in the declarations. Those issues went to the merits and were not appropriate for resolution on a motion for conditional approval. The court also concluded that differences in the specific duties of other attendants could be addressed later, during the more demanding second-stage review.

The court addressed two objections to the proposed notice. First, it declined to require the notice to state the specific percentage of any recovery that might be paid as attorney fees. The notice already disclosed that the plaintiffs’ attorneys were being paid on a contingent-fee basis, and the precise fee amount would require later court approval. Second, the court allowed notice for three years before the filing of the action because the plaintiffs had alleged willful violations. The Fair Labor Standards Act ordinarily uses a two-year limitations period, but allows three years for claims arising from willful violations.

Disposition

Judge Gabriel W. Gorenstein granted the plaintiffs’ motion to approve a collective action and to send notice to the collective. The decision authorized notice to potential non-managerial parking garage attendants but did not decide the ultimate merits of the wage-and-hour claims.