Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—S.D.N.Y.: Nail technician denied conditional certification of collective action alleging time shaving and improper pay deductions, (Apr 11, 2025)

By Ronald Miller, J.D.

The employee’s statements about what other employees experienced were too conclusory to make the modest factual showing required for conditional certification.

A nail technician was denied a motion for conditional certification of an FLSA collective action alleging that her employer failed to pay minimum wage and overtime due to two unlawful practices: (1) time shaving and (2) improper deduction of 30 minutes of lunchtime from working hours. In order to certify a collective involving job categories beyond the employee’s own position, she must provide a “modest but job-specific factual showing” that other workers were subject to a common unlawful policy. Here, while the employee described her job duties as a nail technician, the hours she worked, and the wages she received, she did not describe the job duties, hours worked, and wages paid of employees working in other similar positions (Lee v. Nails & Spa Together, Inc., No. 24-CV-02549 (AT) (HJR) (S.D.N.Y. Apr. 9, 2025)).

Time shaving. The employee worked as a nail technician from approximately January 2013 to March 15, 2024. She alleged that she did not receive the full minimum wage and overtime wage due to two unlawful practices. First, she alleged that she was subject to “time shaving” whereby the employer altered her clock-in and clock-out times such that she was paid for fewer hours than she actually worked. According to the employee, she performed “off the clock” work for more than two hours per day.

Improper pay deductions. Second, the employee alleged that her employer improperly deducted 30 minutes of lunchtime from her working hours, even on days when she had no lunch break. She also alleged that the employer wrongfully retained 10 percent of the credit card tips she earned, purportedly for credit card processing fees.

On November 18, 2024, the employee filed her motion for conditional collective certification, and supporting memorandum of law, her own declaration, and the declaration of her attorney.

Collective action certification. The employee sought conditional certification of a collective of similarly situated individuals who were employed by the employer as cosmetologists, nail technicians, skin care technicians, eyelash extension technicians, and other similar positions during the FLSA collective period.

In opposing the conditional certification, the employer contended that the employee sought to certify a class of nonexistent employees and failed to mention anyone falling within the disputed categories by name or other identifying trait. Second, the employer argued that the employee failed to “offer any details as to [the] purported conversations she had [with these employees] by citing dates, times, and the frequencies” of the conversations, as well as the details as to the “hours, pay, tip distribution[,] and any other terms and conditions of their employment.” Finally, the employer argued that the employee failed to provide the names, hours, pay, or the details of the work performed by other nail technicians.

Observations and conversations. Thus, the issue presented was whether the employee needed to include these details in her declaration to satisfy the modest factual showing that she and potential opt-in plaintiffs together were victims of a common policy or plan that violated the FLSA.

Common policy. A consensus of the courts in this district holds that a plaintiff relying on observations of any coworker or conversations with them to assert a common unlawful policy must provide a minimum level of detail regarding the contents of those observations or conversations. Absent such information, a court has no basis to conclude that other workers whom the plaintiff tries to certify as a collective were subject to a common policy.

However, a plaintiff need not provide “the times and dates” of the conversations so long as a court “can fairly infer” that other employees “labored under similar working conditions and thus suffered the same violations of the FLSA.”

Courts in this district have also held that when only one plaintiff holds a particular job position, conditional certification of a collective including others in that job position is generally denied unless the plaintiff provides specific evidence, such as from plaintiff’s direct observations or conversations with others, showing that others in similar job positions were also subject to a common unlawful policy. In contrast, when two named plaintiffs hold the same job position and provide detailed descriptions of the hours worked, wage paid, and method of pay, the court may infer similar practices for other employees working in that position.

To certify a collective including categories of workers beyond the named plaintiff’s own job position, the named plaintiff must provide a “modest but job specific factual showing” that these workers were subject to a common unlawful policy as plaintiff.

Personal observations. Here, while the employee described the alleged violations of law that she personally experienced, her statements about what other employees experienced were too conclusory to make even the modest factual showing required for conditional certification. The employee asserted that all other employees in all relevant job categories were subject to the same workplace practices but did not identify or provide factual detail about any one of them. She did not explain how she knew what hours other employees worked or what they were paid for such work.

Thus, to the extent the proposed collective extends to cosmetologists, skincare technicians, eyelash extension technicians, and other positions, the employee’s motion for conditional collective certification was denied.

The case is No. 24-CV-02549 (AT) (HJR).

Judge: Ricardo, H.

Attorneys: Ryan J. Kim (Ryan Kim Law) for Chong Suk Lee. Cindy Debra Salvo (The Salvo Law Firm) for Nails & Spa Together, Inc.

Companies: Nails & Spa Together, Inc.

Cases: WageHour ClassActions MinimumWage Overtime WorkingTime NewYorkNews