Hamadou v. Hess Corp.

915 F.Supp.2d 651

Diallo HAMADOU, Muhammad Shahjahan, and Frank Asiedu, on behalf of themselves individually, and on behalf of all others similarly situated, Plaintiffs,

v.HESS CORPORATION, Hess Mart, Inc., Mamadou Gueye, Tous Phillip, Jorge Ball, ABC Corporation, and John Does 1–3, Defendants.

No. 12 Civ. 0250(CM)(JLC).

United States District Court, S.D. New York.

Jan. 16, 2013.

Benjamin B. Xue, Brian Jeffrey Shenker, Xue & Associates, P.C., New York, NY, for Plaintiffs.

Marvin Mark Goldstein, Carolyn Marie Dellatore, Proskauer Rose LLP, Newark, NJ, for Defendants.

DECISION AND ORDER

McMAHON, District Judge:

On January 12, 2012, Diallo Hamadou (“Hamadou”), Muhammad Shahjahan (“Shahjahan”), and Frank Asiedu (“Asiedu”) (collectively, “Plaintiffs”) brought this action for unpaid wages, including failure to pay overtime compensation, under the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. § 201 et seq., and under the New York Labor Law (“NYLL”), Article 19 § 650 et seq. In the instant motion, Plaintiffs seek conditional certification of a collective action under the FLSA, court-authorized notice pursuant to section 216(b) of the FLSA, and an order directing the defendants to produce contact information for current and former hourly employees at the defendants' gas stations in New York State. Hess Corporation, Hess Mart, Inc., Mamadou Gueye (“Gueye”) and Phillip Tous (“Tous”) (collectively, “Defendants”),¹ owners and/or managers of the various “Hess” gas stations where Plaintiffs worked, oppose the collective action certification and have moved to strike Plaintiffs' class allegations concerning “spread of hours” pay under the NYLL.

For the reasons stated below, Plaintiffs' motion is GRANTED IN PART. Defendants' motion to strike class allegations concerning “spread of hours” pay under the NYLL is DENIED.

BACKGROUND²

Defendants Hess Corporation and Hess Mart, Inc. (together, “Hess”) own and/or operate 243 retail gas stations in New York State, including the “Queens Station” where the named plaintiffs have worked. In terms of corporate structure, the gas stations in New York are split into two regions, which are further divided into twenty-three territories. Each territory is headed by a regional marketing representative (“RSM”), who supervises the approximately 10–13 gas stations in his/her territory. Hess gas stations are staffed by at least four to six hourly employees, frequently referred to as “sales associates,” “Sr. sales associates,” or “cashiers” (collectively, “cashiers”), as well as a general manager, also known as a station manager. Cashiers are primarily responsible for assistingcustomers with their purchases and working the cash register. The station manager oversees the daily operations of the station, including scheduling, payroll, training, management, purchasing and merchandising, among other things. Hess currently employs approximately 1,000 to 1,500 full time and part-time hourly employees in its gas stations in New York.

Plaintiffs allege that Hess station managers (1) regularly modified employees' timesheets in order to reduce the number of hours worked to below forty per week, depriving employees of any pay for overtime and (2) routinely required cashiers to work “off-the-clock” before and after their scheduled shifts, without recording the time they worked and therefore denying them compensation. In this motion, Plaintiffs propose a putative class consisting of all hourly employees (or cashiers) of Hess gas stations in New York State, employed at any time in the three years before the commencement of this action (between January 12, 2009 and January 12, 2012).

In their complaint, Plaintiffs also allege that cashiers frequently worked a “spread of hours” of more than ten hours in a single day, but that they were never compensated for “spread of hours” pay, as required by the NYLL. Plaintiffs include this claim within their general allegation that they seek relief for “similarly situated” workers. Defendants assert that the class claim regarding “spread of hours” pay must be dismissed, or that certification with respect to the claim should be denied. However, Plaintiffs have not yet moved to certify the class claims under the NYLL, including any “spread of hours” claims.

All of the Hess gas stations in New York use the same electronic timekeeping system for payroll purposes, Web Pay/NDC. In order to keep track of hours worked, employees log into a computer at the Hess station to “clock-in” and “clock-out” at the beginning and end of their shifts. Station managers are responsible for reviewing and finalizing the timesheets each week, and then sending them along to Hess's corporate offices for payment processing. The managers, and only the managers, have the authority to change employees' time entries, and the system does not require them to provide any reason or additional information in order to do so. They may modify the time entries by changing the clock-in and clock-out times that were originally entered by the employees.

Hess claims that the only reason a manager would modify a time entry would be to provide a clock-in or clock-out time where the employee has forgotten to do so; Plaintiffs dispute this. If any modifications have been made, only the modified versions of the timesheets are forwarded along for payroll. RSMs conduct “spot checks” of each station's timesheets each month.

The timekeeping system maintains at least three sets of records: (1) a summary of total hours worked by each employee in a given workweek at a particular station (“Station Summary”), (2) a set of time records that show the original clock-in and clock-out times entered by the employees, prior to any modifications (“Unmodified Timesheets”), and (3) a set of time records that reflect any modifications made by the manager, which are the records later sent to payment processing (“Modified Timesheets”). The timekeeping system automatically indicates where a time entry has been modified with an “M” placed next to the particular clock-in and clock-out times.

In support of their claims, Plaintiffs have submitted evidence in connection with two Hess gas stations in the state—the station located at 39–02 Queens Boulevard, Queens, New York 11104 (the “Queens Station”), where Plaintiffs worked, and a Hess station located at 766 Southern Boulevard, Bronx, New York (the “Bronx Station”). This evidence includes Station Summaries, Unmodified Timesheets, and Modified Timesheets produced by the Defendants for hourly employees of both stations.³ Plaintiffs contend that a more widespread policy of doctoring timesheets exists. These claims are summarized below.

A. The Queens Station

Plaintiffs have all worked at the Queens Station as cashiers. Hamadou worked there from October of 2010 through June 15, 2012. Shahjahan has worked there from October of 2000 through the present. Asiedu has worked there from May of 2011 through the present.

As station manager of the Queens Station since July 14, 2008, Defendant Gueye supervised Plaintiffs and was responsible for submitting their timesheets for payroll processing.

From January 1, 2009 through September 1, 2011, Defendant Ball acted as the RSM for the territory including the Queens Station (Territory 10 in Region 2), which included twelve other Hess stations. Afterward, Defendant Tous replaced him as the RSM for that territory.

Each of the plaintiffs has submitted a declaration alleging that Defendant Gueye regularly changed the clock-in and clock-out times on their timesheets before sending them to payroll, reducing the total number of hours they worked—whether they worked more or less than forty in a week (although they often worked more). As a result, they were never paid for the additional hours they worked, and never received any compensation, let alone overtime compensation, for hours worked over forty. Several timesheets they have submitted corroborate these assertions. For example, an Unmodified Timesheet for Plaintiff Shahjahan shows that he worked approximately 51 hours in a particular week, although his earnings statement shows that he was only paid for 40 hours, and that he was not paid at all for the overtime hours he worked.

Plaintiffs also claim that they were frequently required to work “off-the-clock” before and after their shifts, for which they were never paid. Plaintiff Hamadou explained that some of his off-the-clock duties included cleaning the gas pumps, taking inventory, and moving merchandise.

The declarations also state that Plaintiffs regularly worked a “spread of hours” greater than 10 hours in a single workday, but were not paid any “spread of hours” payments, as required by the NYLL. (“Spread of hours” is defined under New York law as the interval between the beginning and end of the employee's workday, including any time off duty. See12 N.Y.C.R.R. § 142–2.18.) Plaintiffs identify another former employee at the Queens Station, “Bedi Kuldip,” as someone who was subjected to the same practices, based on their conversations with him.

According to Plaintiffs, they complained to Gueye about these practices. He allegedly told them that it was Hess company policy to reduce the number of hours they worked in the timekeeping system, and that he was instructed and pressured to do so by his supervisors, the RSMs. He also told them that RSMs are given certain incentives by Hess to reduce the number of employees' recorded hours.

After they complained, Plaintiffs claim that they experienced retaliation—their scheduled working hours were reduced to approximately twenty hours per week, down from over forty. They also assert that Defendant Gueye threatened to fire them.

Hess admits that Gueye changed the timesheets of employees at the Queens Station to keep the number of hours they worked to below forty per week. The company identifies Gueye as a “rogue employee” and contends that Gueye did this on his own initiative. Hess insists that this activity was...