Ramirez v. Riverbay Corp.
Ramirez v. Riverbay Corp.
Opinion of the Court
OPINION AND ORDER
The plaintiffs bring this action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”), §§ 190 et seq. & 650 et seq., claiming various violations of their right to receive a minimum wage and overtime compensation. The plaintiffs are current and former hourly' employees of RiverBay Corp. (“RiverBay”). On December 20, 20Í3, the Court granted the plaintiffs’ motion for conditional certification of a collective action pursuant to Section 216(b) of the FLSA. The plaintiffs now move for certification of three proposed NYLL Subclasses pursuant to Rule 23 of the Federal Rules of Civil Procedure. For the reasons that follow, the plaintiffs’ motion is granted.
I.
The factual background and procedural history of this case are set forth in the Court’s Opinion and Order addressing the defendants’ motion to dismiss and the parties’ cross-motions for summary judgment, which is being issued together with this Opinion. Familiarity with that Opinion is assumed. The following facts relevant to the present motion are undisputed unless otherwise noted.
A.
Named Plaintiffs Katherine Bell, Jonathan Frias, Rosaly Ramirez, Lorna Thomas, and Linda Williams are current and former hourly employees of RiverBay. (Am. Compl. ¶¶ 8-12.) Defendant River-Bay manages Co-Op City, which is the largest cooperative housing development in the world. (Am. Compl. ¶ 14.) Defendant Marion Scott is the exclusive property manager for all of RiverBay’s residential and commercial properties. (Am. Compl. ¶ 15.) Individual Defendants Vernon Cooper and Peter Merola are River-Bay’s General Manager and Director of Finance, respectively. (Am. Compl. ¶¶ 17-18.)
In this action, the plaintiffs claim various violations of their rights to minimum wage and overtime compensation under the FLSA and the NYLL. These claims fall into three categories: the plaintiffs allege that the defendants unlawfully provided compensatory time off in lieu of cash for overtime hours worked by the plaintiffs (the “comp time claims”); that the defendants unlawfully failed to incorporate a nighttime wage differential in the plaintiffs’ base pay when calculating the plaintiffs’ overtime wages (the “nighttime differential claims”); and that the defendants impermissibly reduced the plaintiffs’ compensation by under-counting the hours
B.
In moving for class certification, the named plaintiffs seek to represent three proposed Subclasses of current and former hourly employees at RiverBay who have claims for the unlawful deprivation of wages in violation of the NYLL.
Proposed Subclass 1 includes hourly employees at RiverBay who allege that they clocked in and began working before the start of their scheduled shifts, or continued to work after the end of their scheduled shifts and then clocked out late, and were not compensated for work performed during these on-the-clock off-schedule “gap” periods.
Proposed Subclass 2 includes hourly employees at RiverBay who allege that they were provided overtime compensation in the form of compensatory time off (“comp time”) in lieu of cash for time worked in excess of forty hours per week. These plaintiffs allege that RiverBay had a corporate policy of permitting hourly employees to receive overtime compensation in the form of comp time, and that this policy is unlawful under the NYLL.
Finally, Proposed Subclass 3 includes hourly employees at RiverBay who earned premium compensation for work performed during night shifts (“nighttime differential” pay), and who allege that RiverBay had a policy of excluding this nighttime differential pay from their regular wages when calculating their overtime compensation, in violation of the NYLL.
C.
On December 20, 2013, the Court granted the plaintiffs’ motion for conditional certification of a collective action and Court-authorized notice pursuant to Section 216 of the FLSA, 29 U.S.C. § 216. (See Dec. 20, 2013 Hr’g Tr. at 59.) The Court approved the final language for the notice in a Memorandum Opinion and Order dated January 30, 2014, and on February 20, 2014, the notice was sent to a list of approximately 1,700 potential plaintiffs that had been furnished by the defendants. At the time the present motion was filed, ninety-six opt-in plaintiffs had consented to joining the conditionally certified collective action. (Deck of Wade C. Wilkinson in Supp. of Pis.’ Mot. for Certification of the N.Y. Subclasses (‘Wilkinson Deck”) ¶ 6.)
On January 27, 2014, the defendants moved to dismiss the plaintiffs’ federal and state comp time and nighttime differential claims on the ground that they are preempted under § 301 of the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and to dismiss Defendant Merola from the action on the ground that he is not individually liable under the
II.
Before certifying a class, the Court must determine that the party seeking certification has satisfied the four prerequisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. See Fed.R.Civ.P. 23(a); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202-03 (2d Cir. 2008); In re Ini tial Pub. Offerings Sec. Litig. (“In re IPO"), 471 F.3d 24, 32 (2d Cir. 2006). The Court must find, more specifically, that: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). The Court must also find that the class qualifies under one of the three sets of criteria set forth in Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Teamsters, 546 F.3d at 203; In re IPO, 471 F.3d at 32.
The plaintiffs here seek certification under Rule 23(b)(3), which provides for a class to be maintained where “the questions of law or fact common to the class members predominate over any questions affecting only individual members, and ... a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R.Civ.P. 23(b)(3); see also Comcast Corp. v. Behrend, — U.S.-, 133 S.Ct. 1426, 1431, 185 L.Ed.2d 515 (2013). If the requirements of 23(a) have been met, and the claims fall within the scope of Rule 23(b)(3), a court may, in its discretion, certify the class. See In re IPO, 471 F.3d at 41 (“[A] district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met.”).
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule— that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Plaintiffs seeking class certification bear the burden of demonstrating by a preponderance of the evidence that the proposed class meets each of the requirements for class certification set forth in Rule 23. Teamsters, 546 F.3d at 202. When assessing whether plaintiffs have met this burden, courts must take into account “all of the relevant evidence admitted at the class certification stage.” In re IPO, 471 F.3d at 42. A court may certify a class only after determining that “whatever underlying facts are relevant to a particular. Rule 23 requirement have been established.” Id. at 41. “[T]he obligation to make such determinations is not lessened by overlap between a Rule 23
In ruling on a motion for class certification, “[c]ourts have discretion to create additional classes or split a class into subclasses.... ” Mazzei 288 F.R.D. at 56 (citations omitted). When exercising its discretion to certify subclasses, a court must assure itself that each subclass independently meets the requirements of Rule 23. Id.; Burka v. N.Y. City Transit Auth., 110 F.R.D. 595, 601 (S.D.N.Y. 1986).
Where, as here, a collective action under the FLSA involves claims under the NYLL, “courts in the Second Circuit routinely certify class actions ... so that New York State and federal wage and hour claims are considered together.” Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 163 (S.D.N.Y. 2008) (collecting cases); see also Lee v. ABC Carpet & Home, 236 F.R.D. 193, 202-03 (S.D.N.Y. 2006) (“[W]here a collective action under the FLSA that is based on the same set of facts has been approved, there is an inclination to grant class certification of state labor law claims.” (citing Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 86 (S.D.N.Y. 2001))).
III.
The plaintiffs’ first proposed Subclass is defined to include current and former Riv-erBay employees who have been denied compensation for work performed after clocking in but before the start of a scheduled shift, or after the end of a scheduled shift but before clocking out. The defendants argue that certification of this Subclass should be denied because this Subclass does not meet the commonality or typicality requirements of Rule 23(a)(2) and (3), and because the plaintiffs cannot demonstrate that common questions of law or fact predominate over individualized inquiries that would be required to establish liability and damages for the plaintiffs’ schedule-based pay claims, such that the predominance requirement of Rule 23(b)(3) is not satisfied.
A.
The numerosity requirement of Rule 23(a)(1) is presumed satisfied for classes with more than forty members. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). Here, the total number of plaintiffs in all three subclasses is approximately 1,700. The plaintiffs assert that Subclass 1 consists of more than forty members, (see Wilkinson Decl. ¶ 6), and the defendants do not oppose certification of Subclass 1 on the ground that the numerosity requirement is not satisfied. Accordingly, the Court concludes that Subclass 1 is sufficiently large to satisfy the numerosity requirement of Rule 23(a)(1). See Katz v. Image Innovations Holdings, Inc., No. 06cv3707, 2010 WL 2926196, at *3 (S.D.N.Y. July 22, 2010).
B.
Rule 23(a)(2) requires a showing that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). To satisfy the commonality requirement, class members’ claims must “depend upon a common contention,” and the common contention “must be of such a nature that it is capable of classwide resolution.” Dukes, 131 S.Ct. at 2551. The plaintiffs contend that RiverBay has a corporate policy of paying all hourly employees according to their scheduled shifts, rather than their on-the-clock hours, and that this policy routinely deprives the plaintiffs of compensation for work performed after clocking in but before the
“To establish liability under the ... NYLL on a claim for unpaid overtime, a plaintiff must prove that he performed work for which he was not properly compensated, and that the employer had actual or constructive knowledge of that work.” Eschmann v. White Plains Crane Serv., Inc., No. 11cv 5881, 2014 WL 1224247, at *4 (E.D.N.Y. Mar. 24, 2014) (citation and internal quotation marks omitted). In general, the NYLL incorporates the overtime requirements of the FLSA. N.Y. Comp.Codes R. & Regs. tit. 12, § 142-2.2. The FLSA requires that for a workweek longer than forty hours, an employee who works in excess of forty hours must be compensated time and a half for the excess hours. See 29 U.S.C. § 207(a)(1).
The record on this class certification motion strongly supports the existence of a policy at RiverBay of paying employees only for their scheduled shifts when payroll records indicate that the employees worked longer than their scheduled shifts. (See, e.g., Wilkinson Decl., Ex. D at 27-28, Ex. E at 116-17.) This alleged policy is the cause of the injuries alleged in Subclass 1, and its establishment on the merits is therefore “at the ‘core’ of the cause of action alleged” by the Subclass members. Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 127 (S.D.N.Y. 2011). Moreover, it is undisputed that payroll records would enable a comparison between hours spent on the clock and hours that were actually compensated.
While the defendants invoke Wal-Mart Stores, Inc. v. Dukes in opposing certification of Subclass 1, nothing about that case precludes a finding that the commonality requirement has been satisfied here. The Supreme Court in Dukes concluded that the commonality requirement had not been satisfied in a class action brought by employees alleging employment discrimination under Title VII. The Court found that the plaintiffs’ claims did not rest upon a common contention capable of classwide resolution because the plaintiffs could not claim that a uniform employment policy was the cause of their injuries. See 131
Here, by contrast, the evidence points clearly to the existence of a corporate employment policy with an impact on employees across RiverBay. RiverBay’s payroll coordinator testified that RiverBay employees are “paid to schedule.” (Wilkinson Deck, Ex. D at 27.) The employee depositions submitted in connection with this motion indicate unanimously that the plaintiffs performed on-the-clock pre- and post-schedule work and were not paid for it, and many employees testified that they knew others who also performed uncompensated on-the-clock work. (See, e.g., Deck of Wade C. Wilkinson in Further Supp. of and in Reply to Defs.’ Opp. to Pis.’ Mot. for Certification of the N.Y. Subclasses (“Wilkinson Reply Deck”), Ex. N at 18, 21-22, 51, Ex. 0 at 60, Ex. P at 19-20; Wilkinson Deck, Ex. G at 92-93, Ex. H at 45-46, 83, 111-13, Ex. I at 38, 71, 73, 92,102, Ex. J at 54-56, 64, 164-66, 225, 250, 256, Ex. K at 65-66, 69, 86, 89, Ex. Q at 75-77.) The extent to which this uncompensated on-the-clock work was performed during weeks in which plaintiffs worked more than forty hours may require individualized determinations,
C.
Rule 23(a)(3) is satisfied when “the claims of the class representatives
The defendants have not proffered any arguments that address specifically whether the typicality requirement is satisfied for Subclass 1. To the extent that the defendants emphasize the individualized inquiries that may be necessary to establish liability and damages, any such inquiries do not defeat a finding that the named plaintiffs’ claims are typical of those of the proposed Subclass. See Espinoza, 280 F.R.D. at 128 (“[T]he minimum wage and overtime claims alleged by Plaintiffs are similar to those of the class members and arise from the same allegedly unlawful practices and policies.... Typicality is satisfied despite differences in damages arising from a disparity in injuries among the class members.”). Here, the named plaintiffs have testified that they were harmed by the conduct alleged to have injured the class, (see, e.g., Wilkinson Deck, Ex. I at 38, Ex. J at 250, Ex. K at 86), and the defendants have not indicated any specific factual defenses applicable to the named plaintiffs’ claims that would be atypical of the class. Accordingly, the typicality requirement is satisfied for Subclass 1.
D.
Adequacy under Rule 23(a)(4) consists of two requirements: “First, class counsel must be qualified, experienced and generally able to conduct the litigation. Second, the class members must not have interests that are antagonistic to one another.” In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992) (citation omitted); see also Dukes, 131 S.Ct. at 2551 n. 5 (“[T]he [adequacy] requirement ... raises concerns about the competency of class counsel and conflicts of interest.”). The defendants do not challenge the adequacy of representation in this action, and there are no evident conflicts of interests in the Subclass. Plaintiffs’ counsel has pursued a number of similar actions and has vigorously litigated the action before this Court. Accordingly, the adequacy requirement is satisfied for Subclass 1. See Damassia, 250 F.R.D. at 158; In re Buspirone Patent Litig., 210 F.R.D. 43, 58 (S.D.N.Y. 2002).
E.
“Although it is not explicitly spelled out in Rule 23, courts have added an implied requirement of ascertainability with respect to the class definition.” Schear, 297 F.R.D. at 125 (citation and internal quotation marks omitted). Under this requirement, a class must be identifiable before it may be properly certified. Id. “An identifiable class exists if its mem
F.
In addition to satisfying the Rule 23(a) prerequisites, the plaintiffs must show, pursuant to Rule 23(b)(3), “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
1.
The plaintiffs here argue that the predominance requirement is satisfied for Subclass 1 because the Subclass members have suffered the same injury under the NYLL resulting from the same general policy, and any individualized determinations in the action will consist mainly of mechanical calculations that can be performed on the basis of payroll records, and will therefore not overwhelm the litigation. The defendants argue that Subclass 1 does not satisfy the predominance requirement because individualized issues will predominate over classwide issues in the determination of liability and damages. This is so, they argue, because it cannot be assumed that the time an employee spends “clocked in” is an accurate reflection of time spent “working” for purposes of overtime liability under the NYLL; thus, in order to establish liability and damages, the Court will have to conduct individualized, fact-specific inquiries into whether a given plaintiff was actually working during the time that plaintiff was on the clock.
For their position, the defendants rely primarily on Babineau v. Federal Express Corp., 576 F.3d 1183 (11th Cir. 2009). Ba-bineau involved claims by employees of Federal Express Corporation, Inc. (“FedEx”) for breach of contract and unjust enrichment resulting from FedEx’s alleged failure to pay its employees for “gap” periods—that is, periods between clocking in and the start of a scheduled shift, or between the end of a scheduled shift and clocking out. 576 F.3d at 1185, 1187-88. The district court had concluded that Rule 23(b)(3) was not satisfied because the record indicated a significant likelihood that plaintiffs were not actually performing work-related duties during “gap” periods—thus, a determination of liability would depend upon individualized inquiries that were likely to predominate over common questions. See id. at 1192-93. Although the claims at issue in Babineau were for breach of contract, the plaintiffs had argued that the employment contracts at issue incorporated state and federal law, including federal regulations defining “hours worked” as “all periods in which the employee is suffered or permitted to work whether or not required to do so,” and “time given by the employee to the employer even though part of the time may be spent in idleness.” See id. at 1192 (quoting 29 C.F.R. §§ 4.178 & 778.223).
The Court of Appeals for the Eleventh Circuit concluded that even assuming the federal regulations promulgated under the FLSA were applicable, there was a realistic likelihood based on the record that individualized inquiries into whether a plaintiff was working during “gap” periods would predominate over classwide issues.
The defendants argue that here, as in Babineau, individualized inquiries into whether a given plaintiff was working during on-the-clock pre- and post-shift “gaps” will predominate over classwide issues. However, the conclusions reached in Babi-neau are not persuasive in this case. The court in Babineau affirmed the denial of class certification because “[e]ven if FedEx policies pressured some employees to arrive early or stay late, it [wa]s clear from the record that other employees did so voluntarily and for purely personal reasons,” and therefore not all on-the-clock time indicated in the payroll records would have been compensable under the employment contracts. Id. at 1193.
In this case, by contrast, the record supports the conclusion that the plaintiffs were working during pre- and post-shift on-the-clock “gaps.”
Although individualized factual inquiries cannot be avoided, the Court has a duty to assess all of the relevant evidence admitted at the class certification stage and to resolve factual disputes relevant to each of the Rule 23 requirements, In re IPO, 471 F.3d at 41-42, and unlike in Babineau, the record here does not indicate a significant likelihood that individualized factual inquiries into whether individual plaintiffs were working during pre- and post-shift “gaps” will overwhelm the classwide resolution of the claims in Subclass 1.
To the contrary, the record suggests that if the plaintiffs succeed in demonstrating a corporate policy of routinely denying RiverBay employees compensation for pre- and post-shift work, the primary hurdle to recovery is likely to consist predominantly of arithmetical calculations based on payroll records and other documentary evidence.
The defendants’ conclusory invocation of the Supreme Court’s recent decision in Comcast Corp. v. Behrend does not alter this result. In Comcast, the Court warned that Rule 23(b)(3) is not satisfied when the plaintiffs’ theory of damages is not directly linked to the plaintiffs’ theory of liability, because in such cases, “individual damage calculations will inevitably overwhelm questions common to the class.” See 133 S.Ct. at 1433-35. The relevance of the holding in Comcast outside the antitrust context is not yet clear,
2.
In order to satisfy Rule 23(b)(3), the plaintiffs must also show “that a class
G.
For the foregoing reasons, the requirements of Rule 23(a) and (b)(3) are satisfied for Subclass 1, and the plaintiffs’ motion to certify this Subclass is therefore granted.
IV.
The plaintiffs have moved for certification of two additional proposed Subclasses. Subclass 2 is defined to include current and former RiverBay employees who received comp time in lieu of cash for overtime hours, and Subclass 3 is defined to include current and former RiverBay employees who received premium “nighttime differential” pay for work performed during night shifts, and who allege that their overtime compensation was not upwardly adjusted to reflect the addition of this premium pay to their base compensation. The defendants raise only two limited objections to the certification of these two Subclasses. First, they argue that proposed Subclass 2 should not be certified because individualized issues With respect to liability and damages will predominate over classwide issues. Second, they argue that proposed Subclass 3 does not satisfy the adequacy requirement because the named plaintiffs do not have valid nighttime differential claims, and because the named plaintiffs have brought other claims in addition to their nighttime differential claims.
A.
The plaintiffs represent that Subclasses 2 and 3 will consist of more than forty members each, (see Wilkinson Decl. ¶ 6), and the defendants do not dispute this assertion. Thus, for the reasons that apply to Subclass 1, Subclasses 2 and 3 satisfy the numerosity requirement. See Consol. Rail Corp., 47 F.3d at 483 (holding that numerosity is presumed satisfied when a class consists of more than forty members); Katz, 2010 WL 2926196, at *3 (concluding that numerosity was satisfied on the basis of undisputed representations that the class was sufficiently large).
B.
With respect to Subclass 2, the plaintiffs contend that RiverBay had a corporate policy of providing comp time in lieu of cash for overtime hours, and that this raises a classwide issue that satisfies the commonality requirement of Rule 23(a)(2). The payment of comp time in lieu of cash wages for hours worked in excess of forty in a given workweek is unlawful under the NYLL.
For similar reasons, the commonality requirement is satisfied for Subclass 3. The defendants do not dispute that the failure to include premium pay, such as nighttime differential pay, in an hourly employee’s regular rate of pay for pur-, poses of calculating overtime liability would violate the NYLL to the extent that this occurred for weeks in which an employee worked more than forty hours.
C.
There is no indication in the record that the claims of the named plaintiffs in Subclass 2 or 3 would hinge on issues or defenses that would “threaten to become the focus of the litigation,” Gary Plastic Packaging Corp., 903 F.2d at 180 (citation omitted), and there is no express objection from the defendants to certification of Subclasses 2 or 3 on typicality grounds. The defendants argue that the named plaintiffs
D.
As explained above, the record indicates that the first requirement under Rule 23(a)(4), adequacy of class counsel, is satisfied in this case. The second requirement—that class members “not have interests that are antagonistic to one another,” In re Drexel Burnham Lambert Grp., 960 F.2d at 291—is also satisfied for Subclasses 2 and 3. The record indicates no evident conflicts of interest or any other reason to believe the named plaintiffs would not adequately represent the interests of the Subclasses. The defendants argue that the named plaintiffs in Subclass 3 have interests antagonistic to the class members because they are asserting other claims in addition to their nighttime differential claims.
E.
The implied ascertainability requirement is also satisfied for Subclasses 2 and 3, because the members of these Subclasses can be ascertained by reference to the same sorts of objective criteria used to ascertain the members of Subclass 1. See, e.g., Schear, 297 F.R.D. at 125; Morris, 2013 WL 1880919, *6-7.
F.
The plaintiffs must also satisfy the Rule 23(b)(3) predominance and superiority requirements for Subclasses 2 and 3 in order for these Subclasses to be certified.
1.
The defendants do not object to certification of Subclass 3 on predominance grounds. They do argue, however, that Subclass 2 fails to meet the predominance requirement because differences, in payroll policies across departments and CBAs will cause individualized issues to predominate over class issues.
With respect to Subclass 2, the predominance requirement is satisfied. Liability on the comp time claims under the NYLL is likely to turn on the classwide issue of whether RiverBay had a corporate policy of paying comp time in lieu of cash wages for overtime hours. If the plaintiffs establish that RiverBay had such a policy, determining whether this resulted in unpaid
No challenge has been made to Subclass 3 on predominance grounds, and it is clear that Subclass 3 also satisfies this requirement. The existence of a RiverBay-wide policy of excluding nighttime differential pay when calculating overtime liability is a substantial, classwide question that is at the crux of whether the defendants are liable on the nighttime differential claims. Individualized assessments of whether, and to what extent, application of this policy violated each plaintiffs rights under the NYLL will require little more than arithmetic, and can be made on the basis of payroll records. See Shahriar, 659 F.3d at 253; Schear, 297 F.R.D. at 126; Niemiec, 2007 WL 5157027, at *12; Noble, 224 F.R.D. at 345. Accordingly, Subclass 3 also satisfies the predominance requirement.
2.
Finally, the defendants do not object to certification on superiority grounds, and for the reasons applicable to Subclass 1, the superiority requirement is satisfied for Subclasses 2 and 3. There is a significant number of plaintiffs in each class, there do not appear to be related individual actions pending, and there is a low likelihood that plaintiffs would pursue individual actions if certification were denied. See Katz, 2010 WL 2926196, at *6; Da-massia, 250 F.R.D. at 164; Iglesias-Men-doza, 239 F.R.D. at 373.
G.
For the foregoing reasons, the requirements of Rule 23(a) and (b)(3) are satisfied for Subclasses 2 and 3, and the plaintiffs’ motion to certify these Subclasses is therefore granted.
CONCLUSION
The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the reasons explained above, the plaintiffs’ motion for class certification is granted. The Clerk is directed to close Docket No. 129.
The plaintiffs should provide a proposed order for class notice by August 15, 2014. The defendants may provide any objections and response by August 29, 2014. SO ORDERED.
. In their papers, the plaintiffs defined Subclass 1 as consisting of "[cjurrent and former Riverbay Employees who have been denied compensation for work performed before and after their shifts.” (Pis.' Mem. in Supp. of Mot. for Class Certification at 2.) However, the plaintiffs' arguments in support of certification of this Subclass make clear that this Subclass is intended to include only claims for on-the-clock work, and not claims for work performed before clocking in or after clocking out. At oral argument, the plaintiffs agreed that the definition of Subclass 1 should be revised to exclude off-the-clock claims.
. For this reason, the defendants' reliance on cases denying certification of classes of plaintiffs asserting o/f-the-clock claims is misplaced. See, e.g., Fernandez v. Wells Fargo Bank, N.A., No. 12cv7193, 2013 WL 4540521, at *5-8 (S.D.N.Y. Aug. 28, 2013). The claims at issue in Subclass 1 are exclusively for on-the-clock work, which is memorialized on the payroll records and can therefore be established with comparative ease.
. Employee testimony indicates that it often was. (See, e.g., Wilkinson Deck, Ex. I at 38, Ex. J at 250, Ex. K at 86.)
. .The defendants are correct that under Department of Labor regulations, employers who use time clocks are not required to pay "employees who voluntarily come in before their regular starting time or remain after their closing time, ... provided, of course, that [the employees] do not engage in any work." 29 C.F.R. § 785.48(a). However, there is ample evidence in this case that employees who come in before their shift times or stay after their shift times do indeed work in that period of time.
. The defendants argue that testimony from Plaintiffs Ramirez and Carmelo Perez that they were working during "gap” periods should be disregarded because these plaintiffs were classified as exempt employees during some of their employment at RiverBay, and they were therefore not paid on an hourly basis. But regardless of any effect these employees’ classification might have on their claims, their testimony that they and others performed work during pre- and post-shift "gaps” supports the assertion that work was routinely performed by employees at River-Bay during these periods. (See, e.g., Wilkinson Deck, Ex. J at 54; Ex. Q at 75-76.)
.The defendants emphasize that employees working before and after scheduled shifts were often not required to do so, and sometimes even prohibited from doing so. However, as the plaintiffs point out, this is not the end of the inquiry, because "if an employer has knowledge that an employee is working hours in excess of forty per week, [the employer] is responsible for compensating that employee even where the employer has not requested the overtime be performed or does not desire the employee to work.” Torres v. Gristede's Operating Corp., 628 F.Supp.2d 447, 462 (S.D.N.Y. 2008) (citations and internal quotátion marks omitted).
. The defendants point to portions of some of the plaintiffs' testimony in which these plaintiffs allegedly admit to not having performed work during "gap” periods, (see Wilkinson Decl., Ex. K at 86; Wilkinson Reply Decl., Ex. N. at 103-04, Ex. O at 59, Ex. P at 19.) Although this' testimony provides some support for the defendants’ position, the defendants overstate its significance. All of these plaintiffs testified elsewhere that they indeed worked during pre- or post-shift "gap” periods. (See Wilkinson Decl., Ex. K at 90; Wilkinson Reply Decl., Ex. N at 22, 119, Ex. O at 59-60, Ex. P at 19-20.) The defendants also emphasize a portion of the testimony of Herbert Freedman, secretary of Defendant Marion Scott Real Estate, in which Freedman stated that he has observed employees "punch in and punch out based upon their own requirements, their own needs.... They go to the restroom, they then go to get their bagel and coffee, they go shopping, they do whatever____” (Wilkinson Decl., Ex. P at 48-49.) This, too, provides some support for the defendants' position, but it does not refute the plaintiffs’ allegations that there was a regular pattern of employees working during the periods in which they were on the clock but outside their scheduled shifts. Moreover, Freedman's conclusory testimony is substantially outweighed by the specific testimony from all nine testifying plaintiffs that work was performed during "gap” periods, and by the attestations of twenty-six other plaintiffs who affirm that they worked during "gap” periods.
. For the same reason, a second out-of-Circuit case cited by the defendants, Cornn v. United Parcel Serv., Inc., No. C03-2001, 2005 WL 2072091, at *5 (N.D.Cak Aug. 26, 2005), is distinguishable. The plaintiffs seeking class certification in Comn had brought claims for similar on-the-clock off-schedule "gap” periods, and the court denied certification on Rule 23(b)(3) grounds. In reaching this conclusion, the court found that the record established that the plaintiffs had "perform[ed] a variety of non-work-related tasks” during the "gap” periods. 2005 WL 2072091, at *5. Moreover, there was only limited evidence that work was actually performed at all during the "gap” periods. Id.
. Indeed, to the extent that individualized factual inquiries are necessary into whether plaintiffs were in fact working while clocked in, these inquiries may be capable of resolution through representative testimony or other means that will reduce their burden on the classwide litigation. See, e.g., Mendoza v. Casa de Cambio Delgado, Inc., No. 07cv2579, 2008 WL 3399067, at *7 (S.D.N.Y. Aug. 12, 2008).
. The applicability of Comcast may be limited in view of the fact that it was uncontested in the district court and in the Supreme Court that the plaintiffs were required to show "(1) that the existence of individual injury resulting from the alleged antitrust violation (referred to as 'antitrust impact’) was 'capable of proof at trial through evidence that [was] common to the class rather than individual to its members'; and (2) that the damages resulting from that injury were measurable 'on a class-wide basis' through use of a ‘common methodology.’" Id. at 1430 (alteration in original) (citation omitted).
. Indeed, in the accompanying Opinion, the Court granted summary judgment on liability for Plaintiffs Frias and Thomas on their comp time claims under the FLSA and the NYLL.
. The FLSA requires that employers pay overtime at a rate "not less than one and one-half times the regular rate of pay,” 29 U.S.C. § 207(a)(1), and courts generally conclude that "[a]n employee's 'regular rate’ of pay includes shift differentials.” Johnson v. D.M. Rothman Co., 861 F.Supp.2d 326, 331 (S.D.N.Y. 2012) (collecting cases). In the absence of any argument to the contrary, the NYLL may be assumed to incorporate these rules. See N.Y. Comp.Codes R. & Regs. tit. 12, § 142-2.2. The Court addressed the named plaintiffs’ nighttime differential claims under the FLSA and the NYLL in the accompanying Opinion, and the parties’ summary judgment motions were denied.
. In their papers, which were submitted before the Court’s decision on the parties’ summary judgment motions, the defendants also argued that the adequacy requirement was not satisfied because the named plaintiffs in Subclass 3 have no valid nighttime differential claims, but the Court’s decision denying the defendants' motion for summary judgment on the named plaintiffs' nighttime differential claims renders that argument moot.
Reference
- Full Case Name
- Rosaly RAMIREZ v. RIVERBAY CORP.
- Cited By
- 21 cases
- Status
- Published