Diaz v. Weinstein Landscaping

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JOSE BLAS UMANA DIAZ, on behalf of himself, FLSA Collective Plaintiffs and the Class Members, Plaintiffs, v. WEINSTEIN LANDSCAPING and MARK WEINSTEIN, Defendants.

No. 19-CV-06050 (JMA) (ST)

United States District Court, E.D. New York

February 28, 2022

REPORT AND RECOMMENDATION

Steven L. Tiscione, United States Magistrate Judge.

On October 28, 2019, Plaintiff Jose Blas Umana Diaz (“Diaz”), on behalf of himself and others similarly situated (“Prospective Plaintiffs”) commenced this action against Defendants Weinstein Landscaping (“Weinstein Landscaping”) and Mark Weinstein (“Weinstein”) (together “Defendants”) alleging violations under the Fair Labor Standards Act of 1938 (“FLSA”) and New York Labor Law (“NYLL”). Before this Court is Diaz's motion for (1) conditional certification of this case as a collective action under the FLSA; (2) Defendants to produce data containing Prospective Plaintiffs' name and relevant information to send the Court-Authorized Notice (“Notice”); and (3) equitable tolling of the statute of limitations on Prospective Plaintiffs' claims.

For the following reasons, this Court respectfully recommends that Plaintiffs' motion be granted.

I.BACKGROUND

A. Facts

Plaintiff Diaz is an individual residing in Suffolk County, New York. FAC ¶ 5.

Defendant Weinstein Landscaping is a New York based corporation with its principal place of business at 51 Cherry Avenue, West Sayville, NY 11796. FAC ¶ 6. Defendant Weinstein is the sole owner and operator of Weinstein Landscaping. Id. ¶ 7; Defs.' Opp. at 1.

Defendants employed Diaz to work as a landscaper as well as for snow removal from October 2003 through August 2019. FAC ¶ 9. Diaz claims he worked for Defendants from seven (7) a.m until five (5) p.m., Monday through Saturday, for an average of sixty (60) hours per week. Id. ¶¶ 18-20.

Diaz alleges that Defendants did not pay him on an hourly basis, instead he received a flat amount of (1) $175.00 per day in 2015 and 2016; (2) $185.00 per day in 2017; and (3) $200.00 per day in 2019. FAC ¶ 22. Diaz avers that Prospective Plaintiffs, while employed by Defendants, were paid at a comparable rate without any overtime compensation; not given adequate breaks; not required or instructed to clock in or clock out; and not given NYLL wage statements, written notice of their hourly rate or any other time or wage records. Id. ¶¶ 23-28. Diaz claims that Defendants failed to maintain employment records. Id. Diaz further claims that Defendants neither accurately deducted payroll deductions nor provided any breakdown of such payroll deductions. Pl.'s Aff. ¶ 15 Pl.'s Mem. of Law at 7, 18; Weinstein Dep. at 30-31.

Diaz further alleges that there are more than forty (40) Prospective Plaintiffs that worked for Defendants during the relevant period, who do not have adequate knowledge of their claims and lack the financial resources to file individual suits. FAC ¶ 30.

Diaz cites to Defendant Weinstein's testimony to provide names and details of Prospective Plaintiffs that Defendants employed including:

1. Oscar Torres (“Torres”) since 2013 and paid him in cash. Weinstein Dep. at 51. 2. Nick Ramirez (“Ramirez”) for approximately six (6) to seven (7) years and paid him in both cash and check. Id.

3. Denny Amaya ("Amaya") for approximately six (6) to seven (7) years and paid him in both cash and check. Id. at 54.

4. Jose Annabell (“Annabell”) since Spring 2020 and pay him in cash. Id. at 55.

5. Jose Alfaro (“Alfaro”) currently and pay him in cash. Id. at 56.

See also Pl.'s Mem. of Law at 8-10. Diaz alleges that Prospective Plaintiffs suffered common violations due to Defendants' failure to (1) maintain employment records under 29 USC §§ 201, and 215 (a); and (2) pay minimum wages and overtime compensation under 29 USC §§ 201, 207(a)(1) and 215(a). See FAC ¶ 53.

Defendants deny Diaz's allegations. See generally Defs.' Opp. Defendants allege that Weinstein Landscaping's current employees were paid above the applicable minimum and overtime wages; and that his employees including Diaz were paid a different amount each week depending on hours worked. Id. at 2.

As to wage records, Defendant Weinstein testified that he employed four (4) to five (5) laborers from 2013 through 2018; that different employees had different hourly rates ranging from $15 an hour in 2013-2016; to $15-$16 an hour in 2017, to $15 to $17 an hour from 2018 to 2020; that employees worked eight (8) to ten (10) hours each day with half an hour paid lunch break and were given overtime; that no written notice of hourly wage rate was provided to employees; and that no electronic records were maintained. See Weinstein Dep at 21-22, 28; Defs.' Opp. 4-7. Defendant Weinstein further testified that (1) Defendants paid some Prospective Plaintiffs in a combination of approximately 60% cash and 40% check, and the others were paid only in cash; (2) that Defendants did not deduct payroll deductions from the cash payments but only from the checks and did not provide a breakdown of payroll deductions with each check; and (3) that the only time Defendants provided notice of payroll deductions was with the first check. See Weinstein Dep. at 29-32; Pl.'s Mem. of Law at 7, 18.

As to time records, Defendant Weinstein testified that employees were not required to clock in or out; that it was only since 2020, that he maintained a sign-in sheet in his truck, which was not required for employees to fill-in each morning; rather, at the end of the week, Defendant Weinstein filled in the sheet himself for all employees based on the hours he thought the employees had worked that week. Weinstein Dep. at 24-26, 50. The employees signed these sheets on a weekly basis. Id. Defendant Weinstein also testified that no such sign-in sheet was maintained prior to 2020 or during the course of Diaz's employment with the exception of some handwritten and unsigned records in 2019 or so. Id.; See also Pl.'s Mem. of Law at 7.

Diaz alleges that Defendants did not produce any written records of hours worked by Prospective Plaintiffs. Id. Diaz alleges that Prospective Plaintiffs suffered common violations under the FLSA due to Defendants' failure to maintain employment records and pay proper wages. See FAC ¶ 53. Accordingly, Diaz moves for conditional certification of this case as a collective action. See generally, FAC.

B. Procedure

On October 28, 2019, Diaz commenced this action against Defendants alleging violations under the FLSA. Dkt. No. 1. On April 15, 2021, Plaintiff Diaz filed his First Amended Complaint (“FAC”). Dkt. No. 27. Defendants filed the Answer to the FAC on April 28, 2021. Dkt. No. 28.

The parties were involved in some discovery process. On September 14, 2020, Defendants conducted a deposition of Diaz. Pl.'s Mot., Ex. 3 at 1. On September 18, 2020, Plaintiff conducted a deposition of Defendant Weinstein. Defs.' Opp., Ex. A at 1. On September 30, 2020, Plaintiff Diaz filed his first Motion to Compel, which was granted in part and denied in part. Dkt. No. 25. On February 10, 2021, Diaz filed the instant motion for conditional certification. Dkt. No. 22. Further discovery is stayed pending the instant motion. Dkt. No. 25.

II. LEGAL STANDARD

Under the FLSA, an employee may sue on behalf of herself and other employees who are “similarly situated.” 29 U.S.C. § 216(b). Those “similarly situated” employees may opt-in to a collective action brought under the FLSA, and therefore become plaintiffs, by filing a written consent form. Id.; See also Varghese v. JP Morgan Chase & Co., No. 14-CV-1718 (PGG), 2016 WL 4718413, at 5 (S.D.N.Y. Sept. 9, 2016).

The conditional certification of an FLSA collective action is a discretionary exercise of the court's authority; it is useful as a case management tool, facilitating the dissemination of notice to potential class members. Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169, 174 (1989)). Because it is discretionary, a motion for conditional certification involves a “far more lenient” standard than a motion for class certification under Rule 23 of the Federal Rules of Civil Procedure. Feng v. Soy Sauce LLC, No. 15-CV-3058 (ENV) (LB), 2016 WL 1070813, at 2 (E.D.N.Y. Mar. 14, 2016).

Courts in the Second Circuit apply a two-step process to determine whether an action should be certified as an FLSA collective action. Myers, 624 F.3d at 554-55. In the first step, the one we are asked to engage in here, the court looks at the pleadings, affidavits, and declarations to determine whether the Plaintiff and potential opt-in plaintiffs are sufficiently “similarly situated” to issue notice and allow the case to proceed as a collective action through discovery. Id. at 555.

The first step requires only a “modest factual showing” that the plaintiff and potential opt-in plaintiffs “together were victims of a common policy or plan that violated the law.” Id. (internal quotation marks and citations omitted). The standard of proof is low “because the purpose of this first stage is merely to determine whether ‘similarly situated' plaintiffs do in fact exist.” Id. (emphasis in original).

Furthermore “[w]here, as here, a conditional certification motion is made after some, but not all, discovery has occurred, it remains an open question whether some kind of ‘intermediate scrutiny' should apply.” Korenblum v Citigroup, Inc., 195 F.Supp.3d 475, 480-81 (S.D.N.Y. 2016); see also Jibowu v. Target Corporation, 492 F.Supp.3d 87, 119. Some district courts in this circuit have begun using a “modest-plus” standard in cases where some discovery has already occurred prior to the conditional certification motion. Gaston v. Valley Nat'l Bancorp, No. 17-CV-1886 (FB) (SMG), 2018 WL 4158407, at...