New York Employment Lawyer Blog

On May 12, 2011, in Zivali v. AT&T Mobility, the Southern District of New York decertified an FLSA class because the plaintiffs were unable to demonstrate a class-wide illegal policy or practice. The court found that the plaintiffs were not "similarly situated" for purposes of a FLSA collective action, and dismissed all of the claims except those of the original plaintiff.

To give some background on procedure, New York federal courts generally use a two-step procedure when dealing with FLSA collective actions. "In the first step, the court authorizes plaintiffs to send out notices to potential opt-in plaintiffs who may be similarly situated to the named plaintiffs with respect to the FLSA violation alleged." Capsolas v. Pasta Resources, Inc., 2011 WL 1770827, 2 (S.D.N.Y. 2011). The burden for demonstrating that potential plaintiffs are "similarly situated" is very low at the notice stage. A plaintiff need make only a "modest factual showing" that he and potential collective action members were victims of "a common policy or plan that violated the law."

The second stage, called the "decertification stage," typically takes place after discovery has been completed and after the defendant has filed a motion for decertification. This second and more stringent review of the "similarly situated" standard is undertaken to ensure that having the case proceed to trial as a collective action, as opposed to individual actions, is appropriate. See Indergit v. Rite Aid Corp., 2010 WL 2465488 (S.D.N.Y. 2010).

In Zivali, the plaintiff, a nonexempt retail employee, alleged that AT&T failed to pay wages and overtime compensation, in violation of the FLSA and the New York Labor Law. He specifically claimed that needing supervisor approval for overtime, having to work through meal periods, and having to work "off-the-clock" made it difficult to capture all of his hours in the company's electronic time-keeping system.

In 2009, applying the lower standard, the court "conditionally" certified the class of all similar employees nationwide. After notices were sent out, over 4,100 plaintiffs ultimately opted into the lawsuit. Following discovery, AT&T made a motion for decertification.

In it's May 12, 2011 decision, applying the higher, second-stage standard, the court decertified the class, holding that the company's policies and electronic time-keeping system were "lawful under the FLSA, and plaintiffs have failed to show that these lawful policies are consistently violated in practice such that it would be possible to generalize across the 4,100 opt-in plaintiffs in this case." The court found that each employee's situation was different, depending upon the specific manager and location. Because there was no overarching policy that violated the FLSA, the court held that "resolution of the many fact-specific issues in this case would essentially require 4,100 mini-trials . . . Such a result is the antithesis of collective action treatment and would overwhelm the judicial system and eliminate any judicial efficiency that might be gained."

If you believe that you're not being properly compensated for all your time, it's important to speak with a New York wage and hour attorney to determine whether your employer's wage and/or overtime policy violates the law.

On May 9, 2011, The National Labor Relations Board ("NLRB") issued a complaint alleging that Hispanics United of Buffalo, Inc., a New York non-profit organization that provides social services to low-income clients, unlawfully discharged five employees after they complained about their working conditions in a Facebook discussion.

In this case, an employee was scheduled to meet with management to discuss working conditions. The day before the meeting, the employee posted on her personal Facebook page a comment by a co-worker that employees were not doing enough to help the organization's clients. Other employees posted comments, in which they defended their performance, and criticized working conditions, staff levels and workloads. When the employer learned of the postings, it fired the five employees who made the comments on the basis that their comments constituted harassment of the co-worker originally mentioned in the post.

However, the NLRB alleges that the Facebook discussion among coworkers, addressing working conditions like performance and staffing, constituted protected concerted activity within the meaning of Section 7 of the National Labor Relations Act ("NLRA") because it involved a conversation among co-workers about their terms and conditions of employment. The NLRA provides that "employees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection." 29 U.S.C. § 157.

It is well established that the NLRA's protection extends beyond the context of labor unions. Speech of an individual employee is "concerted" as long as it is engaged in with the object of initiating or inducing group action. N.L.R.B. v. Caval Tool Div., 262 F.3d 184 (2d Cir. 2001). When an individual expresses dissatisfaction with terms and condition of employment in front of his fellow employees, "the object of inducing group action need not be express." Timekeeping Sys., Inc., 323 NLRB 244, 247 (1997).

The courts and the NLRB have repeatedly found that individuals who challenge working conditions through online conversations are engaged in concerted activity. In Care Ambulance Service Inc. and Elizabeth Tello, an Individual, 2007 WL 3070947 (2007), two employees were exchanging email messages that involved shared concerns about working conditions, including their concern that other employees were receiving preferential treatment from management. The NLRB found that because the employees' "were voicing their concerns for the purpose of mutual aid or protection activity," the email exchange fell comfortably within the definition of concerted activity.

In American Postal Workers Union and Cheryl Alves, an Individual, 2006 WL 2559848 (2006), another case involving conversations online, the NLRB found that the purpose of the employees' emails was to express their concerns that they, as field employees, were being treated differently than headquarters employees. Since the employees' online activity directly related to their conditions of employment, it also constituted protected concerted activity under the NLRA.

If you believe that your employer retaliated against you for engaging in some "concerted activity," it's smart to immediately contact a New York employment attorney to preserve your rights.