Corporate Counsel Daily, Court modifies scope of collective action on employer’s motion for reconsideration, (May 21, 2024)

By Ronald Miller, J.D.

Courts in this Circuit have found defendants to have violated the FLSA by failing to issue prompt payment pursuant to NYLL § 191.

On an employer’s motion for reconsideration of a court’s grant of conditional certification of an FLSA collective action, a federal district court in New York granted the employer’s motion in part, finding good cause exists to modify the scope of the collective action. “Although the FLSA does not explicitly require that wages be paid on time, the courts have long interpreted the statute to include a prompt payment requirement.” Here, the employee adequately alleged that the employer may be liable under the FLSA’s prompt payment requirement upon a finding that weekly payment—and not bi-weekly payment—should have been remitted to the employee (and the putative class). However, the court agreed with the employer that the scope of the collective should be limited to hourly non-exempt employees paid on a bi-weekly frequency of pay at its Brooklyn facility (Cooke v. Frank Bruckhorst Co., LLC, No. 23-CV-6333 (E.D.N.Y. May 18, 2024)).

Collective action. An employee of a distribution company in Brooklyn, New York brought a suit under the FLSA alleging that his employer failed to pay him and other similarly situated employees minimum wage and overtime for work performed. Additionally, the employee asserted that the employer’s bi-weekly payment program contravened the New York Labor Law by resulting in untimely payment. The employee purported to be a “manual worker” employed in New York City, therefore triggering his entitlement to pay on a weekly basis.

On January 11, 2024, the employee moved for conditional certification of a collective action under the FLSA. He identified a common policy that he and other non-exempt employees were subject to that purportedly violated the FLSA: “failure to pay promptly Plaintiff’s minimum wage and/or overtime.”

Biweekly payroll schedule. The crux of the employee’s argument relied on the fact that he alleged that he was a “manual” worker as defined by the NYLL. He argued that, as a manual worker, he and others similarly situated are entitled to weekly payments. Therefore, the employer’s biweekly payment schedule was alleged to facially contravene the weekly payment requirement for manual workers established by the NYLL. As to the FLSA, the employee argued that “courts have long interpreted [the FLSA] to include a prompt payment requirement.”

In opposing conditional certification, the employer first argued that the employee failed to allege that he was not paid minimum wage or overtime wages in violation of the FLSA. The employer also contended that, while the FLSA is generally interpreted to include a prompt payment requirement, it does not specify when “this wage must be paid.” Thus, the employer argued that “because the FLSA does not require Plaintiff to be paid weekly, Plaintiff did not and cannot adequately show that [] Defendant violated the FLSA’s prompt payment requirement solely by virtue of its implementation of a lawful biweekly payroll schedule.”

Conditional certification. On March 22, 2024, the court granted in part the employee’s motion to conditionally certify a collective. In finding that conditional certification was warranted, the court found that the employee had “met his minimal burden of showing that the potential opt-in class members are similarly situated for the purposes of conditional certification.” Specifically, the court recognized that the employee alleged that the employer failed to remit employees timely and complete minimum wage and overtime payments for work performed in violation of FLSA and NYLL. The court also held that, as a purported “manual worker” in New York City, the employer would have been required to remit payment on a weekly basis by NYLL § 191(1)(a).

Motion for reconsideration. On April 5, 2024, the employer filed the instant Motion for Reconsideration of the court’s Conditional Certification Order. According to the employer, the employee failed to set forth a viable claim under the FLSA. The employer also requested that, should the court decline to reconsider its decision in its entirety, that the court clarify and confirm the scope of the collective.

As a threshold matter, the court found that the employer failed to meet its burden for reconsideration. Rather, the employer rehashed arguments set forth in its prior Memorandum of Law in Opposition to the employee’s Motion for Conditional Certification and also presented wholly new arguments that could have, but were not, previously advanced.

Claims for untimely payment. Even if the employer had met its burden on reconsideration, the court’s finding that the employee properly alleged at least one policy or practice that runs afoul of the FLSA—“the practice of failing to remit prompt and timely payment”—remained unchanged.

“Although the FLSA does not explicitly require that wages be paid on time, the courts have long interpreted the statute to include a prompt payment requirement.” “Both the FLSA and the NYLL also govern, in different respects, the timing of payments from an employer to an employee. Therefore, where the FLSA declined to set an exact frequency of pay requirement, the FLSA has allowed states—like New York—to augment protections where necessary, the latter which tracks the spirit of the FLSA.

Courts in this Circuit have found defendants to have violated the FLSA by failing to issue prompt payment pursuant to NYLL § 191. Here, at this first stage of conditional certification, the employee has adequately alleged that the employer may be liable under the FLSA’s prompt payment requirement upon a finding that weekly payment—and not bi-weekly payment—should have been remitted to the employee (and the putative class). Accordingly, the court declined to reconsider its ruling on the employee’s untimely payment claims.

Scope of collective. Nonetheless, the employer requested that the court clarify and modify the scope of the collective class. The court’s March 22, 2024 opinion conditionally certified a class composed of “all former and current hourly workers of Defendant at any point in time between August 23, 2020 and August 23, 2023.” However, the employer proposed that notice should be sent only to its hourly non-exempt employees paid on a bi-weekly frequency of pay at its Brooklyn facility. Given that the employee did not “allege that he is similarly situated to any broader group of employees beyond those located in the Brooklyn facility,” the court found that the employer had proffered a compelling reason to limit the scope of the putative class. Accordingly, the court modified its earlier ruling to limit the scope of the collective to all former and current hourly non-exempt employees paid on a bi-weekly frequency of pay at the Brooklyn facility at any point in time between August 23, 2020 and August 23, 2023.

The case is No. 23-CV-6333.

Judge: Marutollo, J.

Attorneys: David C. Wims (Law Office of David Wims) for Denis Cooke. Alexander Wilde Leonard (Golenbock Eiseman Assor Bell & Peskoe) for Frank Brunckhorst Co., LLC.

Companies: Frank Bruckhorst Co., LLC

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