Andrade-Barteldes v. ASA College, Inc.

Background

Ernest Andrade-Barteldes sued ASA College, Alexander Shchegol, and Jose Valencia under the Fair Labor Standards Act (FLSA) and New York Labor Law. The complaint alleged that the defendants controlled ASA employees’ hiring, firing, working conditions, pay, and employment records. Andrade-Barteldes alleged that he worked as an hourly-paid English-as-a-Second-Language professor and performed about three hours of unpaid administrative and clerical work each week in 2022.

He further alleged that faculty members were not paid for work during the pay periods ending December 23, 2022, and January 6, 2023, and that wages were paid late on other occasions. The complaint alleged a federal minimum-wage claim for Andrade-Barteldes and similarly situated faculty members, plus New York claims for unpaid minimum wages, unpaid earned wages, untimely wages, unjust enrichment, and quantum meruit.

The complaint proposed a Federal Rule of Civil Procedure 23 class consisting of ASA faculty members since January 19, 2017, and an FLSA collective consisting of similarly situated ASA faculty members. Twenty-eight individuals filed notices consenting to join the FLSA action, including Andrade-Barteldes. No defendant opposed the certification motion. Valencia appeared without a lawyer and answered the complaint; the opinion states that the other defendants did not appear at the initial conference.

Legal standards

For a Rule 23(b)(3) class, the court explained that the plaintiff must establish numerosity, commonality, typicality, and adequacy of representation, as well as predominance of common issues and superiority of the class action over other methods. The court also has an independent duty to determine that these requirements are met; they cannot be established merely because defendants default or do not respond.

For an FLSA collective action, the court applied the Second Circuit’s two-step method. At the first step, the plaintiff must make a modest factual showing that he and potential opt-in plaintiffs were victims of a common policy or plan that violated the FLSA. A later step, based on a fuller record, determines whether the participating plaintiffs are actually similarly situated.

Rule 23 class certification

The court found that the proposed class satisfied numerosity because Andrade-Barteldes presented evidence that ASA employed more than 200 professors or instructors at its New York location in 2022, including about 80 in the English-as-a-Second-Language department.

The court found common issues concerning whether the defendants were employers under New York Labor Law, whether they failed to pay minimum wages, whether they had a policy or practice of not paying professors and instructors for administrative and clerical work, and whether they failed to pay wages on time.

The court found Andrade-Barteldes’s claims typical because he worked as an hourly-paid English-as-a-Second-Language professor, alleged that he was not paid for administrative and clerical work, and alleged that he was not paid when wages were due. The court also found him adequate to represent the class based on his declaration that he understood the case, was willing and able to serve, would act in the class’s best interests, and knew of no conflict of interest.

The court approved Levine & Blit, PLLC as class counsel. It relied on the firm’s labor and employment practice, the appearing attorney’s ten years of wage-and-hour litigation experience—including class and collective actions—and counsel’s work on the complaint and commitment to litigating the claims.

The court also found that common issues predominated over individual issues because the evidence indicated that proposed class members were subject to identical employment policies, were paid late or underpaid, and shared common questions about whether the defendants were employers covered by New York Labor Law. The court found that a class action was superior to other available methods for resolving the New York claims.

FLSA collective certification

For the same reasons, the court conditionally certified the FLSA collective. It found that Andrade-Barteldes had presented evidence that he and potential opt-in plaintiffs were victims of a common policy or plan violating the FLSA. The opinion notes that the complaint did not specify the collective’s time period; Andrade-Barteldes’s proposed notice described it as professors and instructors employed at ASA’s New York City campuses from December 17, 2022, to the present.

Notice, class list, and tolling

The court approved the proposed class and collective notice subject to five modifications, including correcting references to the defendants, adding a 60-day deadline for returning forms to class counsel, clarifying the New York Labor Law description, correcting a grammatical error, deleting a sentence about counsel’s experience with similar cases against other employers, and adding language explaining that participants might need to provide information, participate in discovery or trial, and preserve employment-related documents.

The court allowed consent forms to be sent directly to Andrade-Barteldes’s counsel and directed counsel to file them on the electronic docket on the day received. The court also directed defendants to provide, within 21 days, a class list containing the names and last known addresses of all putative class members. The court stated that no separate order was necessary for tolling the Rule 23 class members’ claims because tolling applies by law.

Disposition

The court’s conclusion states that the motion for Rule 23 class certification and conditional certification of the FLSA collective was GRANTED. Andrade-Barteldes was appointed class representative, Levine & Blit, PLLC was appointed class counsel, the notice was approved as modified, and the request for discovery was granted. The clerk was directed to close the motion and send the order to Valencia.