PAUL A. CROTTY, District Judge:
On August 20, 2011, Plaintiffs
Plaintiffs now move: (1) for conditional certification to proceed as a collective action, under § 216(b) of the FLSA; (2) to compel Defendant to provide information regarding similarly situated employees for the six-year period prior to this suit; and (3) for court-authorized notice. Defendant opposes the motion, arguing that Plaintiffs and putative collective action members are not "similarly situated."
Under § 216(b) of the FLSA, an employee is allowed to "assert claims on behalf of other `similarly situated' employees." Myers v. Hertz Corp., 624 F.3d 537, 542 (2d Cir.2010). Similarly situated employees are required to "opt-in," by filing a written consent, to become part of the FLSA collective action and to be bound by the judgment. See id. Courts have the discretion "to facilitate notice to potential plaintiffs to inform them of the pendency of an action and of their opportunity to opt in as represented plaintiffs." Jason v. Falcon Data Com, Inc., No. 09-CV-03990 (JG)(ALC), 2011 WL 2837488, at *4, 2011 U.S. Dist. LEXIS 77352, at *11 (E.D.N.Y. July 18, 2011).
Courts engage in a two-step analysis in deciding whether to certify a collective action under the FLSA. Myers, 624 F.3d at 554-555. In the first stage of analysis, a court determines whether notice should be sent to potential opt-in plaintiffs who may be "similarly situated" to the named plaintiffs, "thus issuing a `conditional certification' of the collective action." Winfield v. Citibank, N.A., 843 F.Supp.2d 397, 402, 10 Civ. 7304(JGK), 2012 WL 423346, *3, 2012 U.S. Dist. LEXIS 16449, at *8 (S.D.N.Y. Jan. 27, 2012). Plaintiffs' burden at this stage is minimal; Plaintiffs need only make a "modest factual showing" that they and potential opt-in plaintiffs "`together were victims of a common policy or plan that violated the law.'" Myers, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)). Plaintiffs can satisfy their burden by showing "`there are other employees ... who are similarly situated with respect to their job requirements and with regard to their pay provisions.'" Id. (quoting Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258-62 (11th Cir. 2008)). Of course, Plaintiffs cannot rely on unsupported assertions to satisfy the modest factual showing; but courts regularly rely on plaintiffs' affidavits and hearsay statements in determining the propriety of sending notice. See Moore v. Eagle Sanitation,
In the second stage of analysis, following discovery, a court determines whether the "`collective action' may go forward by determining whether the plaintiffs who have opted in are in fact `similarly situated' to the named plaintiffs." Myers, 624 F.3d at 555. If the plaintiffs are not similarly situated, then the collective action may be "de-certified" and "the opt-in plaintiffs' claims may be dismissed without prejudice." Id.
At the initial notice stage, Plaintiffs have to make only a modest factual showing that they and other employees were victims of a common policy or plan. The four named Plaintiffs and one opt-in Plaintiff provided declarations in support of the motion. Plaintiffs' declarations show that the Defendant employs approximately fifty field technicians.
Defendant argues that Plaintiffs and putative class members are not similarly situated because they worked different hours, completed different jobs during the day, and thus received different pay. They argue that since the hours worked, jobs performed, and pay received is unique to each field technician, individual issues will predominate over any common issues.
The relevant issue here, however, "is not whether Plaintiffs and [potential opt-in plaintiffs] were identical in all respects, but rather whether they were subjected to a common policy to deprive them of overtime pay when they worked more than 40 hours per week." Raniere v. Citigroup, Inc., 827 F.Supp.2d 294, 323, No. 11 Civ. 2448, 2011 WL 5881926, at *25 (S.D.N.Y. Nov. 22, 2011) (internal quotations omitted); Winfield, 843 F.Supp.2d at 404, 2012 WL 423346 at *5, 2012 U.S. Dist. LEXIS 16449, at *16 (same). Moreover, a fact-intensive inquiry is inappropriate at the notice stage, as Plaintiffs are seeking only conditional certification. See Cruz v. Hook-Superx, L.L.C., No. 09 Civ. 7717(PAC), 2010 WL 3069558, at *2, 2010 U.S. Dist. LEXIS 81021, at *11 (S.D.N.Y. Aug. 5, 2010) (citing cases). The Defendant will have an opportunity to argue that individual inquiries predominate over common issues, based upon the discovery, at the second phase. Accordingly, Defendant's argument is premature. See Falcon Data Com, Inc., 2011 WL 2837488, at *5-6, 2011 U.S. Dist. LEXIS 77352, at *17 (rejecting argument that individualized inquiries weight against conditional certification as "premature").
The Defendant also argues that the Court should not credit Plaintiffs' hearsay statements concerning other field technicians' lack of overtime pay. "[C]ourts in this Circuit regularly rely on [hearsay] evidence to determine the propriety of sending a collective action notice." Winfield, 843 F.Supp.2d at 402-03, 2012 WL 423346, at *3-4, 2012 U.S. Dist. LEXIS 16449, at *11-12 (alteration in original) (quoting Eagle Sanitation, 276 F.R.D. at 59). Given that Defendants will have an opportunity to move for decertification at the second stage, if the plaintiffs are not `similarly situated', and the prediscovery posture of the case, the Court will consider the hearsay statements here.
Since Plaintiffs have satisfied their burden of making a modest factual showing that they and other employees were victims of a common policy or plan, the Court grants Plaintiffs' motion to conditionally certify the collective action.
To facilitate the notice process, courts routinely order an employer to provide plaintiffs with information regarding potential opt-in plaintiffs. See e.g., Krueger v. New York Tel. Co., 93 Civ. 0178(LMM), 1993 WL 276058, at *2, 1993 U.S. Dist. LEXIS 9988, at *7 (S.D.N.Y. July 20, 1993). The Defendant concedes that if the Court grants conditional certification, it should provide employee information for the three-year period prior to this suit, since the statute of limitations under the FLSA is three years. (Def. Opp. 8.) Plaintiffs, however, seek employee information for the six-year period prior to this suit, which corresponds to the statute of limitations under the New York Labor Law.
"[S]everal courts in this Circuit have deemed it appropriate to grant six-year rather than three-year notice periods" where plaintiffs assert claims under both the FLSA and New York Labor Law. Winfield, 843 F.Supp.2d at 410, 2012 WL 423346, at *10-11, 2012 U.S. Dist. LEXIS 16449, at *35-36 (citing cases). Granting a six-year notice period "may be relevant to a subsequent determination as to whether a class should be certified under New York law," particularly where the FLSA notice explains that there may be claims arising under New York state law that are governed by a six-year statute of limitations period. Id. Here, Plaintiffs' proposed notice explains there may be claims arising under New York state law, which would permit recovery for the six-year period prior to suit, and thus may aid in making a subsequent determination as to whether a class should be certified under New York law. (See Kessler Decl. Ex. H.) Accordingly, it is in the interest of judicial economy to provide notice covering both the three-year FLSA claims and six-year New York Labor Law claims. Plaintiffs' motion to compel production of potential opt-in plaintiff information for the six-year period prior to this suit is therefore granted.
The benefits of proceeding as a collective action "depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). "Neither the [FLSA] statute, nor the courts, [however,] specifically outline what form court-authorized notice should take, nor what provisions the notice should contain." Lee v. ABC Carpet & Home, No. 00 Civ. 0984(DAB), 2008 WL 2073932, at *1 (S.D.N.Y. May 9, 2008).
A treatise advises that notice, generally, should contain "a description of some or all of the following: (1) the purpose of the notice; (2) the nature of the lawsuit filed and the relief being sought; (3) the proposed class composition; (4) the legal effect of joining the lawsuit; (5) the fact that the court has not taken any position regarding the merits of the lawsuit; (6) how to join the lawsuit; (7) the purely voluntary nature of the decision and the legal effect of not joining the lawsuit; (8) the prohibition against retaliation; and (9) the relevant contact information for any inquiries." ABA, The Fair Labor Standards Act, 19-78-79 (Ellen C. Kearns et al. eds., 2d ed. 2010). Courts in this district have also held that potential litigants should be advised of the possibility that opt-in plaintiffs may be required to provide information, appear for a deposition, and/or testify in court. See, e.g., ABC Carpet & Home, 2008 WL 2073932, at *2-3.
Plaintiff's motion for conditional certification of the collective action, to compel Defendant to provide information regarding situated employees for the six-year period prior to this lawsuit, and for court-authorized notice under § 216(b) of the FLSA is GRANTED, subject to the modification of Plaintiffs' proposed notice detailed above. the Clerk of the Court is directed to close this motion (Dkt. No. 17).