Opinion
7:02-CV-0157
July 31, 2002
DECISION ORDER
I. Introduction
Plaintiff Herman Downer initiated the instant suit in February 2002. Defendants filed their answer shortly thereafter, and discovery is ongoing. For the Court's present consideration is Plaintiff's Motion to Give Notice to Potential Class Members, filed in April 2002, to which Defendants filed an Affidavit and Response in Opposition in May 2002.
II. Background
Plaintiff alleges that he was required by Defendants to participate in a work experience program in order to receive public assistance through the Safety Net Assistance ("SNA") program. Plaintiff worked an alleged 518.5 hours between February 2000 and March 2001, for which he was owed the minimum wage of $5.15 per hour, but for which he received public assistance benefits as compensation instead of his salary.
Subsequently, the Social Security Administration ("SSA") found Plaintiff to have been totally disabled throughout this period and granted him retroactive Supplementary Security Income ("SSI") benefits. Defendants, however, recouped a total of $4779.50 of these retroactive benefits from the SSA, apparently as reimbursement for some or all of the public assistance that Plaintiff received during the period. Plaintiff claims that Defendants actions violated the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., because federal law required him to be treated as an employee of defendants from February 2000 through March 2001 and therefore, he was entitled to be paid the minimum wage under the FLSA. Consequently, Plaintiff alleges that Defendants' recoupment of $2670.27, the calculated amount for the work he performed, violated the FLSA.
Presently, Plaintiff moves this Court to give notice to other potential plaintiffs whose SSI payments Defendants may also have recouped in alleged violation of the FLSA.
III. Discussion
A. The Court's power to give notice
As a threshold matter, it is well settled that district courts have discretion to authorize notice to a potential class of plaintiffs under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et. seq.. Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482 (1989); Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335, 336 (2d Cir. 1978).
Furthermore, the Court may authorize notice to such potential plaintiffs at an early stage in the litigation, prior to completion of the discovery period, in order to further the remedial goals of the FLSA and to promote efficient case management. See Braunstein, 600 F.2d at 336 (finding that notification of putative plaintiffs "comports with the broad remedial purpose of the [Fair Labor Standards] Act, which should be given a liberal construction, as well as with the interest of the courts in avoiding multiplicity of suits"); Schwed v. General Electric Co., 159 F.R.D. 373, 375 (N.D.N.Y. 1995) ("even where later discovery proves the putative class members to be dissimilarly situated, notice to those preliminarily identified as potential plaintiffs prior to full discovery is appropriate as it may further the remedial purpose of the [FLSA]").
B. The standard for notification of a potential class of plaintiffs under the FLSA
In order for a court to authorize notice under the FLSA, a plaintiff must demonstrate that the putative class members are "similarly situated" to the plaintiff. 29 U.S.C. § 216(b). To meet this "similarly situated" standard, plaintiffs must make a "modest factual showing that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Hoffmann v. Sbarro, 982 F. Supp. 249, 261 (S.D.N.Y. 1997); see also Schwed, 159 F.R.D. at 375-76 ("plaintiffs need only describe the potential class within reasonable limits and provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist"); Jackson v. New York Telephone Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995) ("plaintiffs are only required to demonstrate a factual nexus that supports a finding that the potential plaintiffs were subjected to a common discriminatory scheme"). Substantial allegations by a plaintiff that a defendant's actions violated the FLSA, plus an admission by the defendant that the actions of which plaintiff complains are the result of a company-wide policy, sufficiently demonstrate that class members are similarly situated for the purpose of authorizing notice under the FLSA. Sbarro, 982 F. Supp. at 262. If, on the other hand, there exists a total absence of factual support for a discriminatory policy common to all class members, the court will not find the putative plaintiffs to be similarly situated based solely on a plaintiff's allegations of a uniform discriminatory policy. Sbarro, 982 F. Supp. at 262.
This standard is markedly different and significantly less strict than that for class certification under Federal Rule of civil Procedure 23. See Hoffmann v. Sbarro, 982 F. Supp. 249, 263 (S.D.N.Y. 1997) (noting "the consistent view in this circuit and elsewhere that Rule 23 requirements do not apply to FLSA actions"); Heagney v. European American Bank, 122 F.R.D. 125, 127 (E.D.N.Y. 1988) ("the "similarly situated' requirement of 29 U.S.C. § 216 (b) is considerably less stringent than the requirement of Fed.R.Civ.P. 23(b)(3) that common questions "predominate'").
In the instant matter, the plaintiff has adequately demonstrated that there is a potential class of plaintiffs who was subjected to the same SSI benefit recoupment of which he complains. Plaintiff's substantial allegations of a widespread policy of SSI recoupment are corroborated by defendants' recognition, in their Affidavit and Response in Opposition, that any recoupment of plaintiff's 551 benefits was the result of regulations mandated by the agencies of the State of New York. In short, Defendants have admitted that recoupment in circumstances similar to Downer's has occurred in other instances. Plaintiff has thus satisfied the burden of proving that other potential plaintiffs, subject to the same regulations, are similarly situated. Further, although the parties do not address the potential merit of the claim in any detail, on the face of the complaint, the Plaintiff has alleged a violation of the FLSA. That is, he alleges he was an employee within the meaning of the statute, that the County was an employer within the meaning of the statute, and that he was not compensated at the minimum wage, in violation of the statute. See 29 U.S.C. § 201 et seq. Consequently, notice to the prospective class members is appropriate.
Neither party has, at this time, addressed the merits of Plaintiff's claim. Defendants state generally that their actions were in accordance with New York State law and federal law, but cite no statutes, case law, or regulations. The court declines to consider the merits of Plaintiff's claim on such a paltry record.
Furthermore, the Court, ultimately, is unconvinced by defendants' objections regarding both the confidentiality of the information to be conveyed and the qualifications of Mark A. Schneider, Esq., to represent the proposed class. New York law does indeed protect the confidentiality of those who receive social security assistance. N.Y. Soc. SERV. LAW § 136(1) (McKinney 2002). However, this confidentiality is not absolute, and such public assistance records may be released in certain circumstances and under certain conditions. See New York Times Co. v. City of New York, 176 Misc.2d 872, 673 N.Y.S.2d 569, 578 (N.Y.Sup.Ct. N.Y. Co. 1998) (permitting newspaper to inspect public assistance records, provided the names and information discovered are not made known to the public); People v. McFadden, 178 Misc.2d 343, 683 N.Y.S.2d 694, 695 (N.Y.Sup.Ct. Munroe Co. 1998) ("statutory confidentiality of DSS records is not always sacrosanct, and upon the basis of a proper showing they may be released upon court order after an in camera inspection"); People v. Truick, 175 Misc.2d 460, 669 N.Y.S.2d 1018, 1022 (N.Y.Sup.Ct. Kings Co. 1998) (permitting release of plaintiff wife's DSS records to defendant husband after in camera review, since Justices of the court are State officials and therefore fall within a listed exception to § 136).
Keeping in mind the broad remedial purpose of the FLSA, and the fact that claims may possibly be lost as a result of the two-year statute of limitations applicable to FLSA claims, the Court finds the instant situation to be one in which confidentiality is outweighed by the possible loss that may result to putative plaintiffs if they are not informed of the present suit. The Court commits the determination of what information shall be divulged and the procedure for doing so to the sound discretion of the magistrate judge.
It is acceptable for the court to fashion guidelines for the putative class of plaintiffs where the Court feels that the plaintiff's proposed notification guidelines are not appropriate and defendants have raised objections to these proposed guidelines. See e.g., Sbarro, 982 F. Supp. at 264. Here, the Court finds that the magistrate judge is in the best position to manage the discovery surrounding notification and to fashion an appropriate notification system.
Furthermore, the Court is not required to scrutinize the adequacy of Plaintiff's counsel in ELSA collective actions with the same fervor as class actions brought under Rule 23, and in the interest of preserving the possible claims of the proposed class of plaintiffs, the Court will allow Mr. Schneider to continue as counsel at this time. Should discovery reveal some reason Mr. Schneider is not qualified to serve as counsel for the class, a further motion may be made at that time. See Sbarro, 982 F. Supp. at 263-63 ("in light of the FLSA's silence on this issue, the consistent view in this Circuit and elsewhere that Rule 23 requirements do not apply to ELSA actions, and the FLSA's broad remedial intent favoring early notice to potential plaintiffs, the Court will not delay authorizing notice pending defendant's completion of discovery on adequacy of representation issues")
IV. Conclusion
For the foregoing reasons, and under the foregoing conditions, Plaintiff's motion to give notice to potential class members pursuant to 29 U.S.C. § 201, et. seq. is GRANTED. The parties shall attend a conference with Magistrate Judge David Peebles to work out a procedure for notification of the potential plaintiffs. Defendants may renew their objections to Mr. Schneider's adequacy as counsel should that become appropriate at a later date.