Ni v. HSBC Bank USA, N.A.

Background

Kelly Ni brought claims under the Fair Labor Standards Act (FLSA), the federal wage-and-hour law, and New York Labor Law against HSBC Bank USA, N.A. She asked the court to conditionally certify a nationwide FLSA collective action and authorize notice to potential participants. She sought to include HSBC Personal Bankers and Tellers who allegedly were not paid for work performed through meal breaks, short rest breaks, or after regular hours.

Ni alleged that she worked as a Personal Banker in New York City from about October 7, 2019, to March 15, 2021. She claimed she worked through lunch, was not paid for short breaks of less than 20 minutes, and performed additional evening work without recording it. She supported the motion with her declaration, time records, after-hours messages, and a declaration from Raymond Gordon-Brown, another Personal Banker. The record also included HSBC’s written policies, which required employees to record all time worked, remain paid during short rest breaks, and be fully relieved from work during meal breaks.

Ni relied on evidence involving Personal Bankers and Tellers at branches in several states. Former plaintiffs Jerry Garcia and Kevoni Heyranian had worked in Florida and California but withdrew from the case and did not submit declarations supporting the motion. HSBC opposed conditional certification and disputed parts of Ni’s and Gordon-Brown’s accounts.

Legal standard

At the initial conditional-certification stage of an FLSA collective action, a plaintiff must make a modest factual showing that the plaintiff and potential participants were victims of a common policy or plan that violated the law. The court does not decide the ultimate merits, resolve factual disputes, or determine whether participants are actually similarly situated. Those questions may be addressed later, after additional discovery.

Conditional certification

The court held that Ni met the modest standard for Personal Bankers. Time records showed that Personal Bankers in every sampled state had recorded breaks of 20 minutes or less for which they were not paid, although the records showed that these events were generally infrequent. The court also considered the sworn statements that Personal Bankers were required to work through purported lunch breaks and after hours without recording that time. The court noted that HSBC might have strong defenses and that the alleged practices might not have affected employees as broadly as Ni claimed, but those merits questions could not be decided on this motion.

The court did not include Tellers. Tellers performed different work, were not required to solicit clients, and were often part-time employees. The only Tellers identified by Ni were part-time employees who never recorded more than 40 hours in a week. The record contained no Teller declarations or time records supporting the alleged violations, so Ni could not extend her Personal Banker evidence to Tellers nationwide.

The court therefore granted conditional certification for all HSBC Personal Bankers employed in the United States from January 13, 2020, through February 22, 2022. The court stated that it would later decide whether people who joined the case were actually similarly situated and whether the case should proceed as a collective action at trial.

Equitable tolling

Ni asked the court to pause the FLSA filing deadline for potential participants from the date the complaint was filed until the end of the opt-in period. The court denied that request at this stage because Ni had not shown the rare and exceptional circumstances required for equitable tolling. The court rejected Ni’s argument that HSBC had manufactured discovery delays and found that the periods for objections and discovery compliance were fairly typical.

The court expressly stated that this ruling was without prejudice to Ni’s right to resubmit the tolling request if additional discovery or facts later supported it.

Notice, opt-in period, and employee information

The court set a 60-day opt-in period rather than the requested 90 days because Ni had not shown special circumstances justifying a longer period. The notice could refer only to the federal FLSA claims, not state-law claims. The parties were directed to meet and confer about the description of the claims and submit a revised notice for court approval by February 11, 2024. The court indicated that a third-party administrator should likely send the notice directly to potential participants and that consent forms should be sent to the court clerk. It declined to require posting notices at HSBC locations because HSBC no longer employed Personal Bankers.

The court also ordered HSBC to produce, by February 15, 2024, the names, titles, compensation rates, employment dates, last known addresses, email addresses, and telephone numbers of Personal Bankers employed during the certified period.

Disposition

The court’s conclusion states that Ni’s motion for conditional certification of the FLSA claims was granted in part and denied in part. The court conditionally certified the Personal Banker collective, did not certify a collective including Tellers, declined to toll the limitations period at that point without prejudice to a later request, set a 60-day opt-in period, required a revised notice, and ordered production of the potential participants’ contact information.