In Galicia v. 34th Street Coffee Shop, Inc., the Court conditionally certified a collective FLSA action on behalf of restaurant workers contending that they were not paid minimum wages and overtime. See No. 16-CIV-1170 (RWS) (S.D.N.Y. Aug. 30, 2017). The decision highlights the almost non-existent burden a plaintiff faces on such a motion.

The plaintiff alleged that he worked as a busboy for approximately five months in 2015 and was paid $240/week in cash for working approximately 69 hours/week. The plaintiff alleged that he and other similarly situated employees were not paid minimum wages or overtime, and otherwise did not receive notice of their rights. The plaintiff supported his motion with a declaration in which he contended that he observed other employees working hours for which they were not paid proper wages, and in which he recounted an alleged conversation with another employee who similarly stated that she was paid the same amount in cash each week irrespective of hours worked.

The Court referred to the familiar two-step certification standard endorsed in Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) and emphasized the “low” and “modest” burden a plaintiff faces on such a motion. The Court found the plaintiff’s affidavit, although thin, to satisfy this standard insofar as he identified other persons who, if his testimony were credited, were paid less than that required under the FLSA and NYLL. The Court rejected the employer’s request to consider the affidavit of the employer and the plaintiff’s contradictory deposition testimony, stating that consideration of such materials invited a credibility determination that was inappropriate at the conditional certification stage.

Galicia is illustrative of an unfortunate reality faced by employers in opposing a motion for conditional certification in New York: the potential for a meritorious employer argument to be dismissed simply be reference to the “low” burden a plaintiff needs to meet. Here, this point was driven home by the Court’s disregard of the plaintiff’s deposition testimony, which presumably contradicted the testimony set forth by the plaintiff in his declaration. The Court excused it with minimal analysis as a “credibility determination.” While employers should nevertheless continue to advance such arguments, opposing efforts are best directed at establishing the non-existence of similarly situated individuals or the absence of a common policy, plan or practice capable of binding a group of plaintiffs.