Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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`No. 3:19-cv-01773 (VAB)
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`MARIA GORZKOWSKA, MARIA
`DRWIEGA, PATRYCJA MARTINEZ, and
`BARBARA DRELICHOWSKI, individually
`and on behalf of all others similarly situated,
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`Plaintiffs,
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`EURO HOMECARE LLC and ELZBIETA
`DARMOROS,
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`Defendant.
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`v.
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`RULING AND ORDER ON CONDITIONAL CERTIFCATION
`AND NOTICE TO POTENTIAL PLAINTIFFS
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`Maria Gorzkowska, Maria Drwiega, Patrycja Martinez, and Barbara Drelichowski
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`(together, “Plaintiffs”), individually and on behalf of other similarly situated current and former
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`employees of Euro Homecare LLC (“Euro Homecare”), filed this action against Euro Homecare
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`and Elzbieta Darmoros (together, “Defendants”) under the Fair Labor Standards Act (“FLSA”),
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`29 U.S.C. § 201 et seq., alleging FLSA overtime violations, overtime violations under
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`Connecticut law, and failure to pay wages. Class and Collective Action Compl., ECF No. 1 ¶¶
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`50–70 (Nov. 11, 2019) (“Compl.”).
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`Plaintiffs now move for conditional certification and notice to potential plaintiffs. Pls.’
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`Mot. for Conditional Certification and Notice to Potential Pls., ECF No. 24 (Mar. 20, 2020)
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`(“Pls.’ Mot.”); Mem. in Supp. of Pls.’ Mot. for Conditional Certification and Notice to Potential
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`Pls., ECF No. 24-1 (Mar. 20, 2020) (“Pls.’ Mem.”); Pls.’ Corrected Mot. for Conditional
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`Certification and Notice to Potential Pls., ECF No. 25 (Mar. 23, 2020) (“Pls.’ Am. Mot.”).
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`Defendants object to this motion. Defs.’ Obj. to Pls.’ Mot. for Conditional Certification and
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 2 of 19
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`Notice to Potential Pls., ECF No. 29 (May 4, 2020) (“Defs.’ Obj.”); Defs.’ Obj. to Pls.’ Mot.,
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`ECF No. 30 (May 4, 2020).1
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`For the following reasons, Plaintiffs’ motion is GRANTED.
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`The Court grants conditional certification for all current and former employees of
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`Defendants who provided live-in caregiver and/or companion services to Defendants’ clients at
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`any time between November 7, 2016 and present, finding that Plaintiffs have made the factual
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`showing required to infer that these employees were subject to a common policy or plan that
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`violated the law. See Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010).
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`The Court orders that the notice to potential opt-in plaintiffs (1) be provided in both
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`English and Polish; (2) include contact information for both Plaintiffs’ and Defendants’ counsel;
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`(3) provide notice of possible litigation requirements for opt-in plaintiffs; and (4) provide a one
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`hundred and twenty (120)-day opt-in period. This notice shall be mailed and sent by e-mail to
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`potential opt-in plaintiffs. The Court will not require the posting of the notice at the Euro
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`Homecare LLC offices.
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`The Court orders the parties to confer and revise the notice and consent form described in
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`the preceding paragraph consistent with this Order and submit a final version for the Court's
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`approval by February 5, 2021.
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`The Court further orders Defendants to disclose to Plaintiffs’ counsel the names, dates of
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`employment, last known home addresses, e-mail addresses, and telephone numbers of Euro
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`Homecare employees within the proposed opt-in plaintiff class by February 22, 2021, within
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`thirty (30) days of this Order. At this time, the Court declines to order the disclosure of social
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`security numbers and dates of birth of the proposed opt-in plaintiff class.
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`1 Euro Homecare and Ms. Darmoros file individual, but identical objections. Defs.’ Obj.; Defs.’ Obj. to Pls.’ Mot.,
`ECF No. 30. The Court will cite to Euro Home Care’s objection, Defs. Mot., ECF No. 29, for both defendants.
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 3 of 19
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`I. FACTUAL AND PROCEDURAL BACKGROUND
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`A. Factual Allegations
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`Plaintiffs allege that Euro Homecare is “a provider of home healthcare services, including
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`‘live-in’ services, which [Euro Homecare] advertises on its website as ‘providing 24 hours
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`around the clock continued support.’” Pls.’ Mem. at 2–3 ¶ 2 (alterations omitted).
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`Ms. Darmoros is allegedly the owner of Euro Homecare and a resident of Plainville,
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`Connecticut. Compl. ¶ 10. Ms. Darmoros allegedly “employed Plaintiffs and participated directly
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`in employment decisions.” Id. ¶ 11.
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`Plaintiffs allege that they each “worked as a live-in caregiver during all or some of [their]
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`employment with [Euro Homecare].” Pls.’ Mem at 3 ¶ 3.
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`“Beginning with the week ending October 30, 2016 and continuing through the present,”
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`Defendants allegedly “have had a policy of requiring live-in homecare workers to report taking
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`an hour each for breakfast, lunch, and dinner, and having eight uninterrupted hours for sleep
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`during each and every 24-hour period of live-in employment.” Id. at 3 ¶ 4. Defendants also
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`allegedly “have had a policy of compensating live-in workers for no more than 13 hours per each
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`24-hour period of live-in employment.” Id. at 3 ¶ 5.
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`Plaintiffs allege, however, that “if they had any daytime breaks at all, [they] were never
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`relieved of their duties for a full three hours.” Id. at 3 ¶ 6. Plaintiffs further allege that their
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`“sleeping times were frequently interrupted by the clients’ needs,” which “sometimes le[ft]
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`Plaintiffs with less than five hours for sleep per night.” Id. at 3 ¶ 7.
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 4 of 19
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`B. Procedural Background
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`On November 11, 2019, Plaintiffs filed a Complaint against Defendants. Compl.
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`On December 12, 2019, Defendants moved for an extension of time to file a response to
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`the Complaint. Mot. for Extension of Time, ECF No. 9 (Dec. 12, 2019). The next day, The Court
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`granted this motion. Order, ECF No. 10 (Dec. 13, 2019).
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`On January 17, 2020, Defendants moved for an additional extension of time to file their
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`response to the Complaint, filing two identical motions. Mot. for Extension of Time, ECF No. 15
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`(Jan. 17, 2020); Mot. for Extension of Time, ECF No. 16 (Jan. 17, 2020). On January 21, 2020,
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`the Court granted these motions. Order, ECF No. 18 (Jan. 21, 2020).
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`On February 20, 2020, Defendants filed identical Answers. Answer, ECF No. 22 (Feb.
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`20, 2020); Answer, ECF No. 23 (Feb. 20, 2020).
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`On March 20, 2020, Plaintiffs filed a motion for conditional certification and notice to
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`potential plaintiffs with supporting materials. Pls.’ Mot.; Pls.’ Mem; Decl. of Maria Gorzkowska,
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`Ex 1 to Pls.’ Mot., ECF No. 24-2 (Mar. 20, 2020) (“Gorzkowska Decl.”); Decl. of Maria
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`Drwiega, Ex 2 to Pls.’ Mot., ECF No. 24-3 (Mar. 20, 2020) (“Drwiega Decl.”); Decl. of Patrycja
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`Martinez, Ex 3 to Pls.’ Mot., ECF No. 24-4 (Mar. 20, 2020) (“Martinez Decl.”); Decl. of Barbara
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`Drelichowski, Ex 4 to Pls.’ Mot., ECF No. 24-5 (Mar. 20, 2020) (“Drelichowski Decl.”).
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`On March 23, 2020, Plaintiffs filed a corrected motion for conditional certification and
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`notice to potential plaintiffs. Pls. Am. Mot.
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`On March 31, 2020, Defendants separately moved for an extension of time to file a
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`response to Plaintiffs’ amended motion, filing identical motions. Mot. for Extension of Time,
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`ECF No. 26 (Mar. 31, 2020); Mot. for Extension of Time, ECF No. 27 (Mar. 31, 2020). The next
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`day, the Court granted these motions. Order, ECF No. 28 (Apr. 1, 2020).
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 5 of 19
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`On May 4, 2020, Defendants objected to Plaintiffs’ amended motion. Defs.’ Obj.; Mem.
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`in Supp. of Defs.’ Obj., ECF No. 29-1 (May 4, 2020) (“Defs.’ Mem.”); Defs.’ Obj. to Pls.’ Mot.,
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`ECF No. 30.
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`On January 19, 2021, the Court decided to resolve the pending motion based on the
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`written submissions of the parties alone, without oral argument on Plaintiff’s motion. Order, ECF
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`No. 32 (Jan. 19, 2021).
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`II.
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`STANDARD OF REVIEW
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`In 1938, Congress enacted the Fair Labor Standards Act (“FLSA”) to “eliminate” “labor
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`conditions detrimental to the maintenance of the minimum standard of living necessary for
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`health, efficiency, and general well-being of workers.” 29 U.S.C. § 202 (a–b). “In furtherance of
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`this goal, the FLSA imposes numerous ‘wage and hour’ requirements, including an overtime
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`provision mandating employers to pay non-exempt employees time-and-a-half for each hour
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`worked in excess of 40 hours per week.” Lassen v. Hoyt Livery Inc., No. 3:13-CV-01529 JAM,
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`2014 WL 4638860, at *3 (D. Conn. Sept. 17, 2014). Section 216(b) of the Act creates a private
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`cause of action for FLSA violations for individual employees or collectives of “similarly
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`situated” employees. 29 U.S.C. § 216(b); Lassen, 2014 WL 4638860, at *3.
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`The Second Circuit has adopted a two-step approach to FLSA conditional certification.
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`Myers, 624 F.3d at 554-55. “Although they are not required to do so by FLSA, district courts
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`have discretion, in appropriate cases, to implement § 216(b) by facilitating notice to potential
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`plaintiffs of the pendency of the action and of their opportunity to opt-in as represented
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`plaintiffs.” Id. at 554 (alterations and internal quotation marks omitted). “In determining whether
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`to exercise this discretion in an ‘appropriate case,’ the district courts of this Circuit appear to
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`have coalesced around a two-step method, a method which, while again not required by the
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 6 of 19
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`terms of FLSA or the Supreme Court’s cases, we think is sensible.” Id. at 554–55 (alterations
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`omitted).
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`“The first step involves the court making an initial determination to send notice to
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`potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs with respect to
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`whether a FLSA violation has occurred.” Id. at 555. “The court may send this notice after
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`plaintiffs make a ‘modest factual showing’ that they and potential opt-in plaintiffs ‘together were
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`victims of a common policy or plan that violated the law.’” Id. (quoting Hoffmann v. Sbarro,
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`Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (“Plaintiffs have amply satisfied this burden. They
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`have made substantial allegations, both in their Complaint and supporting affidavits, that
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`Sbarro’s restaurant managers were subject to reductions in their compensation as result of a
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`uniform company–wide policy requiring them to reimburse defendant for cash shortages and
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`other losses.”)).
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`Some courts adopt a modest-plus, or heightened, review standard once some discovery
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`has been completed. See Korenblum v. Citigroup, Inc., 195 F. Supp. 3d 475, 480–81 (S.D.N.Y.
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`2016) (“Where, as here, a conditional certification motion is made after some, but not all,
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`discovery has occurred, it remains an open question whether some kind of ‘intermediate
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`scrutiny’ should apply. . . . [T]here is less consensus within the Circuit than might appear at first
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`blush.”). The Second Circuit, however, has yet to adopt a modest-plus or intermediate scrutiny
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`standard. See Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016) (“We
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`certified for immediate review the question of whether a higher standard, urged by defendants,
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`applies to motions to conditionally certify an FLSA collective made after discovery. We do not
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`need to decide that question, however, because . . . we cannot, on the record before us, conclude
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 7 of 19
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`that the plaintiffs in [the] proposed collective are similarly situated, even under the minimal pre-
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`discovery standard.”).
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`Thus, while a court will review the evidence produced through pre-certification discovery
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`carefully, the “modest factual showing” standard still governs that review. Myers, 624 F.3d at
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`555. “The modest factual showing cannot be satisfied simply by unsupported assertions, but it
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`should remain a low standard of proof because the purpose of this first stage is merely to
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`determine whether similarly situated plaintiffs do in fact exist.” Id. (internal quotation marks,
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`emphasis and citations omitted). Then, “[a]t the second stage, the district court will, on a fuller
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`record, determine whether a . . . collective action may go forward by determining whether the
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`plaintiffs who have opted in are in fact similarly situated to the named plaintiffs.” Id. (internal
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`quotation marks omitted). “The action may be de-certified if the record reveals that they are not,
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`and the opt-in plaintiffs’ claims may be dismissed without prejudice.” Id. (internal quotation
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`marks omitted)).
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`III. DISCUSSION
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`A. Conditional Certification
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`“To clear the first hurdle of collective action certification, FLSA plaintiffs must make a
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`‘modest factual showing that they and potential opt-in plaintiffs together were victims of a
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`common policy or plan that violated the law.’” Shillingford v. Astra Home Care, Inc., 293 F.
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`Supp. 3d 401, 407 (S.D.N.Y. 2018) (quoting Myers, 624 F.3d at 555). A conditional certification
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`may be granted on as modest a factual showing as “a single plaintiff’s affidavit.” Escobar v.
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`Motorino E. Vill. Inc., No. 14 CIV. 6760 (KPF), 2015 WL 4726871, at *2 (S.D.N.Y. Aug. 10,
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`2015). “This simple [or modest] showing requirement can be met by evidence that other
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`employees had similar job requirements and pay provisions.” Lassen v. Hoyt Livery Inc., No.
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`3:13-CV-01529 JAM, 2014 WL 4638860, at *4 (D. Conn. Sept. 17, 2014) (internal quotation
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`marks omitted). “[A]t this first stage, the [C]ourt does not resolve factual disputes, decide
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`substantive issues going to the ultimate merits, or make credibility determinations.” Escobar,
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`2015 WL 4726871, at *2 (internal quotation marks omitted).
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`This burden, however, “is not non-existent and the factual showing, even if modest, must
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`still be based on some substance.” Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469, 480
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`(S.D.N.Y. 2010). “[When] deciding whether to grant the [conditional certification] motion, the
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`Court must merely find some identifiable factual nexus which binds the named plaintiffs and
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`potential class members together as victims of a particular practice.” Alvarez v. Schnipper
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`Restaurants LLC, No. 16 CIV. 5779 (ER), 2017 WL 6375793, at *2 (S.D.N.Y. Dec. 12, 2017)
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`(internal quotation marks and alterations omitted).
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`Plaintiffs argue that their “sworn declarations easily meet the minimal burden for
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`conditional certification.” Pls.’ Mem. at 7. Plaintiffs “attest[] that they provided around-the-clock
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`care and were subjected to the same policy of requiring live-in homecare workers to falsely
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`report taking three hour-long breaks during each day and having eight uninterrupted hours for
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`sleep each night.” Id.; see Gorzkowska Decl. ¶ 6; Drwiega Decl. ¶ 5; Martinez Decl. ¶ 6;
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`Drelichowski Decl. ¶ 6. They further attest that “they could not and did not take all such
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`breaks[,] but were nevertheless paid for only 13 hours per each 24-hour period of live-in
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`employment.” Pls.’ Mem. at 7; see Gorzkowska Decl. ¶ 14; Drwiega Decl. ¶ 11; Martinez Decl.
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`¶ 10; Drelichowski Decl. ¶ 8. Plaintiffs argue that their affidavits “show that live-in caregivers
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`and companions are similarly situated in their working conditions and compensation practices.”
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`Pls.’ Mem. at 7.
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`Defendants argue that Plaintiffs have “failed to meet their burden of proof necessary to
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`justify the granting of their motion.” Defs.’ Mem. at 1. In Defendants’ view, Plaintiffs “have
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`failed to offer sufficient proof that [D]efendants have a policy in violation of law that deprives
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`[P]laintiffs of overtime wages.” Id. at 2.
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`Defendants claim that Plaintiffs “kept their own time[sheets]” and were “paid for all
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`hours that they claimed that they worked.” Id. Defendants further claim that when they were
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`“notified that one of its clients failed to give its employee [eight] hours of sleep time, Euro
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`Homecare would either advise such client that [they] needed to get a family member to cover the
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`sleep period, or Euro Homecare would assign another caregiver to cover the night shift, in which
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`case the client would be billed the time for that additional caregiver.” Id. at 3–4 (citing Decl. of
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`Elzbieta Darmoros, ECF No. 29-2 ¶¶ 10–12 (May 4, 2020)).
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`Defendants argue that Plaintiffs’ motion should be denied because they fail to identify
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`who at Euro Homecare allegedly instructed them to submit timesheets with only 13 hours of
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`work per 24-hour work period, see id. at 2–3, fail to “provide any specific dates for when they
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`allege[dly could not] take the requisite sleep or meal breaks,” id. at 4, and do not “allege that
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`they provided [D]efendants with notice” of this issue, id.
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`The Court disagrees.
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`With their affidavits, Plaintiffs have met their burden of a “modest factual showing.”
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`Myers, 624 F.3d at 555. Plaintiffs attest that Euro Homecare required them to submit timesheets
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`claiming only 13 hours in a 24-hour work period regardless of their ability to fully take the
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`breaks for meals and sleep. See Pls.’ Mem. at 7.
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`Some courts in this Circuit have granted conditional certification for live-in workers who
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`submitted declarations and payroll evidence. See Shillingford, 293 F. Supp. 3d at 409 (granting
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`conditional certification for similarly situated live-in care workers); Downie v. Carelink, Inc.,
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`No. 16-CV-5868 (JPO), 2018 WL 3585282, at *4 (S.D.N.Y. July 26, 2018) (same); Carrasco v.
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`Life Care Servs., Inc., No. 17-CV-5617 (KBF), 2017 WL 6403521, at *8 (S.D.N.Y. Dec. 15,
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`2017) (same). But payroll evidence is not required to grant conditional certification and a
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`declaration alone can satisfy the modest factual showing standard. See Fracasse v. People's
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`United Bank, No. 3:12-CV-670 JCH, 2013 WL 3049333, at *2 (D. Conn. June 17, 2013)
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`(“Under the ‘modest factual showing standard, courts ‘regularly rely on plaintiffs' affidavits and
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`hearsay statements.’”(quoting Zaniewski v. PRRC Inc., 848 F. Supp. 2d 213, 220 (D. Conn.
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`2012)); Escobar, 2015 WL 4726871, at *2 (collecting cases).
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`In this case, Plaintiffs’ sworn statements meet this standard because they indicate that
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`there were “similar job requirements and pay provisions,” Lassen, 2014 WL 4638860, at *4
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`(internal quotation marks omitted), between the named plaintiffs, and that they “together[, with
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`potential opt-in plaintiffs,] were victims of a common policy or plan that violated the law.”
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`Myers, 624 F.3d at 555.
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`Although Defendants argue that Plaintiffs assertions are false and attest that they did not
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`have the policy described by the Plaintiffs, nor would they have any reasons to have such a
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`policy, Defs.’ Mem. at 2–4, at this initial stage, the Court will not “resolve factual disputes,
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`decide substantive issues going to the ultimate merits, or make credibility determinations.”
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`Escobar, 2015 WL 4726871, at *2 (internal quotation marks omitted).
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`Accordingly, Plaintiffs’ motion for conditional certification will be granted.
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`B. Proposed Opt-In Class
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`Plaintiffs request “Court-supervised notice and conditional certification for the following
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`group of prospective opt-in plaintiffs: all current and former employees who provided live-in
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`caregiver and/or companion services to Defendants’ clients at any time between November 7,
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`2016 and the present.” Pls.’ Mem. at 8 (emphasis omitted).
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`Defendants object to this proposed opt-in class. Defs.’ Mem. at 6. Rather than including
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`the proposed class on November 7, 2016, Defendants argue that “the appropriate time period
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`should commence from a date no more than three years from the date of this Court’s Order.” Id.
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`(citing Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 451 (S.D.N.Y. 2011)).
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`Defendants raise the issue of the time period of the proposed class without citing to any
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`specific statute of limitations. Without more information, the Court will not sua sponte limit the
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`proposed plaintiff class at this initial stage. Moreover, in Whitehorn, the case cited by
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`Defendants, the court decided that despite an applicable statute of limitations, “it [wa]s
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`appropriate for notice to be sent to the larger class of prospective members, with the
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`understanding that challenges to the timeliness of individual plaintiffs' actions w[ould] be
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`entertained at a later date” due to the potential applicability of equitable tolling. 767 F. Supp. 2d
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`at 451.
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`Accordingly, the Court will grant notice to this proposed class.
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`C. Notice to Potential Plaintiffs
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`The parties make several specific requests with regard to notice.
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`i. Notice Language
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`Plaintiffs anticipate that “most of the prospective opt-in plaintiffs are native Polish
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`speakers” and request that “notice[] be translated into the Polish language and circulated in both
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`English and Polish.” Pls.’ Mem. at 8 (citing Valerio v. RNC Indus., LLC, 314 F.R.D. 61, 76
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`(E.D.N.Y. 2016) (“Generally, courts permit notice to be translated into the mother tongue of
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`non-English speaking groups of potential plaintiffs.”) (internal quotation marks omitted)).
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`As the translation will assist in the identification of potential opt-in plaintiffs, and
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`Defendants do not object, the Court will grant Plaintiffs’ request for both Polish and English
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`translations of notice.
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`Defendants also make several requests with respect to the form of the notice. First, they
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`request that “the notice provide contact information for Defendants’ counsel in addition to that of
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`the Plaintiffs’ counsel.” Defs.’ Mem. at 7. Plaintiffs did not respond to this request.
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`Courts in this Circuit “have generally concluded that the contact information of
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`defendants' counsel is appropriate for inclusion in a notice of collective action.” Benavides v.
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`Serenity Spa NY Inc., 166 F. Supp. 3d 474, 486 (S.D.N.Y. 2016) (internal quotation marks and
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`alterations omitted) (collecting cases). This contact information, however, must be sufficiently
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`set apart and explained to “avoid unnecessary confusion.” Whitehorn, 767 F. Supp. 2d at 451
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`(“Defendant's request to include defense counsel's contact information is . . . reasonable, and the
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`notice should be so amended. However, this information belongs under a separate heading . . . in
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`order to avoid unnecessary confusion.” (citation omitted)). Contact information about
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`Defendants’ counsel
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`should be set apart in two separate sections. The first section should
`state that, if a potential plaintiff joins this suit and agrees to be
`represented by the named plaintiff through her attorney, he or she
`will be represented by [Plaintiffs’ counsel] and provide plaintiffs
`counsel's full names, mailing address, and phone number. The
`second section should state that defendants in this case are
`represented by [Defendants’ counsel], provide counsel's full names,
`mailing address, and phone number, and include the following
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`language: If you decide to join this case, you should not contact the
`defendants' lawyer but instead rely on your counsel to do so.
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`Benavides, 166 F. Supp. 3d at 487 (emphasis in original) (citations omitted).
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`Accordingly, the Court will grant this request to include contact information of
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`Defendants’ counsel. The notice shall include two separate sections for each set of counsel. The
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`first section shall state that “if a potential plaintiff joins this suit and agrees to be represented by
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`the named plaintiff through her attorney, he or she will be represented by Plaintiffs’ counsel and
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`provide plaintiffs counsel's full names, mailing address, and phone number.” Id. The second
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`section shall state that “[D]efendants in this case are represented by [Defendants’ counsel and]
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`provide counsel's full names, mailing address, and phone number, and include the following
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`language: If you decide to join this case, you should not contact the defendants' lawyer but
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`instead rely on your counsel to do so.” Id.
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`Defendants further request that “the notice advise the potential class members that they
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`may be subject to responding to discovery and to testifying in court or at a deposition.” Defs.’
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`Mem. at 8. Plaintiffs did not respond to this request.
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`“Courts in this District have commonly approved requests for language notifying
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`potential opt-ins that they may be required to participate in the litigation in such ways.” Cortes v.
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`New Creators, Inc., No. 15 Civ. 5680 (PAE), 2015 WL 7076009, at *5 (S.D.N.Y. Nov. 12, 2015)
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`(emphasis in original) (collecting cases); see also Whitehorn,767 F. Supp. 2d at 450 (noting that
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`that notice regarding the “possibility that [opt-in plaintiffs] will be required to participate in
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`discovery and testify at trial” is “routinely accepted,” and collecting cases).
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`[A] brief explanation of the potential responsibilities of opt-in
`plaintiffs is warranted, as it will help putative class members make
`an informed decision about whether to join this litigation. However,
`because the scope of the responsibilities imposed on various class
`members may vary, the Notice need only frame such requirements
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 14 of 19
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`as possible—rather than certain—consequences of opting into the
`litigation.
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`Cortes, 2015 WL 7076009, at *5.
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`
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`The Court will grant Defendants’ request to include language notifying potential opt-in
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`plaintiffs of possible litigation requirements. The notice shall state that potential opt-in plaintiffs
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`“may be required” to participate in some aspects of litigation, “fram[ing] such requirements as
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`possible—rather than certain.” Id. (emphasis omitted).
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`ii. Opt-in Period
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`Plaintiffs also request a longer opt-in period of four months due to the work schedule of
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`live-in caregivers, which may require them to work “seven days per week for months at a time”
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`and prevent them from “timely review[ing] the [n]otice.” Pls.’ Mem at 8 (citing Roebuck v.
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`Hudson Valley Farms, Inc., 239 F. Supp. 2d 234, 240-41 (N.D.N.Y. 2002) (granting a nine-
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`month opt-in period)).
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`Defendants argue that opt-in period should be no more than 60 days. Defs.’ Mem. at 7
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`(citing Yap v. Mooncake Foods, Inc., 146 F. Supp. 3d 552, 566–67 (S.D.N.Y. 2015)).
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`In Yap, the court restricted the opt-in period to 60 days because the plaintiffs in that case
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`“ma[d]e no substantive arguments in response to Defendants' proposed sixty-day period, such as
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`explaining why special circumstances in th[at] case would warrant a longer-than-normal opt-in
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`period.” 146 F. Supp. 3d at 566 (citing Fa Ting Wang v. Empire State Auto Corp., No. 14–cv–
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`1491 (WFK), 2015 WL 4603117, at *11 (E.D.N.Y. July 29, 2015) (collecting cases in which 60-
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`day period is imposed due to absence of plaintiff's arguments in support of ninety-day period)).
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`Here, Plaintiffs have provided an explanation for the longer opt-in period: the anticipated
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`difficulty in contacting live-in caregivers that work away from home for extended period of
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`times. Pls.’ Mem. at 8. In Roebuck, which Plaintiffs cite, the court provided a nine month opt-in
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 15 of 19
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`period where the “anticipate[d] . . . difficulties in locating potential opt-in plaintiffs” were
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`“significant” as “they migrate[d] not only within North America, . . . but from as far away as
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`Bangladesh.” 239 F. Supp. 2d at 240-41. While the difficulties outlined by Plaintiffs in this case
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`do not rise to that level, they still suggest than a longer than normal opt-in period is “not
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`unreasonable.” Id. at 241. And as the “defendants [have not] made any showing that an opt-in
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`period of this length will prejudice them in any way,” id., the Court will grant Plaintiffs’ request
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`for a one hundred and twenty (120)-day opt-in period.
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`iii. Proposed Plaintiffs Information Disclosure
`
`Plaintiffs request “an Order from this Court requiring Defendants to disclose . . .
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`information regarding the above-defined group of prospective opt-in plaintiffs.” Pls.’ Mem. at 9.
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`Specifically, Plaintiffs seek “names, dates of employment, last known home addresses, e[-]mail
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`addresses, telephone numbers, dates of birth, and the last four digits of social security numbers.”
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`Id. Plaintiffs anticipate it will be difficult to reach potential opt-in plaintiff because “some do not
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`maintain permanent residences,” the addresses for former employees may be “incorrect,”
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`“Defendants did not routinely collect the e-mail address of their employees,” many do not use
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`e-mail, and “others intermittently change their . . . phone service or use other people’s phones.”
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`Id.
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`Defendants object to this request, arguing that “this information is confidential and/or
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`unnecessary at this point in time.” Defs.’ Mem. at 5. “Absent a showing of actual need,”
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`Defendants object to providing information beyond “names, dates of employment, and last
`
`known addresses.” Id. at 6.
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`“In general, it is appropriate for courts in collective actions to order the discovery of
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`names, addresses, telephone numbers, e-mail addresses, and dates of employment of potential
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 16 of 19
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`collective members.” Valerio, 314 F.R.D. at 74–75 ; Gui Zhen Zhu v. Matsu Corp, 424 F. Supp.
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`3d 253, 273 (D. Conn. 2020) (“At the notice stage in FLSA collective actions, plaintiffs are
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`generally permitted to discover contact information of similarly situated employees—including
`
`their names, addresses, telephone numbers, and dates of employment.”). “Courts are reluctant,
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`however, to authorize disclosure of private information, such as dates of birth and social security
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`numbers in the first instance and without a showing that the information is necessary for the
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`plaintiff to notify potential opt-ins of the collective action.” Valerio, 314 F.R.D. at 75 (collecting
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`cases).
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`Although Plaintiffs assert that there will be difficulty in reaching the potential opt-in
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`plaintiffs, see Pls.’ Mem. at 9, they have not sufficiently demonstrated that the information
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`normally disclosed would not be adequate to reach potential plaintiffs. Until a showing that
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`notice is undeliverable by the traditional means, the Court will not order the disclosure of social
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`security numbers and dates of birth. See Valerio, 314 F.R.D. at 75 (limiting disclosure of private
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`information “without a showing that the information is necessary for the plaintiff to notify
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`potential opt-ins of the collective action”); Whitehorn, 767 F. Supp. 2d at 448 (“[D]iscovery [of
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`information such as social security numbers] is permitted where Plaintiff can demonstrate that
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`names and contact information are insufficient to effectuate notice.”).
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`Defendants also “object to Plaintiffs’ request that Defendants must provide the
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`information sought within ten (10) days of the Court’s Order,” flagging their reduced operating
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`capacity due to COVID-19. Defs.’ Mem. at 5. Defendants request a 30-day deadline to comply
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`with the Court’s Order. Id. Given the challenges presented by the COVID-19 pandemic, “the
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`Court is granting Defendants’ request for 30 days to provide the information at issue.” Ni v. Red
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`Case 3:19-cv-01773-VAB Document 33 Filed 01/22/21 Page 17 of 19
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`Tiger Dumpling House Inc, No. CV 19-3269 (GRB) (AKT), 2020 WL 7078533, at *14
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`(E.D.N.Y. Nov. 30, 2020).
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`Accordingly, the Court will order the disclosure of names, dates of employment, last
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`known home addresses, e-mail addresses, and telephone numbers of Euro Homecare employees
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`within the proposed opt-in plaintiff class by February 22, 2021, within thirty (30) days of this
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`Order.
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`iv. Service of the Notice
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`Finally, Plaintiffs request that the notice and consent forms be both mailed and sent by e-
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`mail to class members, and that that the Court order the posting of the notice and consent forms
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`at Euro Homecare’s building. See Pls.’ Mem. at 10.
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`Defendants object to the posting of notice at their office “[a]bsent a showi