In Lopes v. Heso, Inc., the Eastern District of New York addressed four discrete legal issues related to the dissemination of a notice to putative members of a conditionally certified collective. See No. 16-CV-6796 (MKB) (RML). Specifically, at the request of the parties, the Court addressed: (i) whether the notice should cover a three- or six-year period; (ii) the proper date for calculating the look back period; (iii) whether the employer would be required to post a copy of the notice in the workplace; and (iv) whether a reminder notice would be sent to the original recipients. The Court took a particularly expansive approach with respect to each issue and departed from authority suggesting a more narrow approach.
First, the Court held that notice should be distributed over a six-year period. While the Court acknowledged that the six-year period was associated with the New York Labor Law limitations period, rather than the three-year FLSA limitations period, the Court found it appropriate because any untimely claims could be dealt with at a later time with minimal burden to the employer. The Court acknowledged the split in the Second Circuit on this issue and dutifully cited to a wealth of contrary authority.
Second, the Court resolved whether the six-year period should be measured back from the date of the filing of the Complaint or the date on which the notice was ultimately to be distributed. The Court held that the six-year look back period would extend from the filing of the Complaint to allow plaintiffs to raise equitable tolling arguments, as necessary. The Court again noted that the employer would face a minimal burden in seeking dismissal of any claims it deemed untimely.
Third, the Court required that the notice be posted at all work-sites, even those of third-party work-sites, as well as the employer’s corporate offices. The Court rejected all arguments concerning burden and potential confusion among the workforce, as well as arguments concerning the lack of efficacy of a posting given the transient nature of the workforce at issue.
Finally, the Court found a reminder notice appropriate. The Court required, however, that the notice contain a conspicuous disclaimer noting that the Court neither encouraged nor discouraged participation in the lawsuit.
Litigation over the scope of the court-authorized notice following conditional certification of an FLSA collective is important as it very likely will impact the size of the collective. The Court in Lopes ruled against the employer on nearly every issue in favor of ensuring that notice would reach the broadest potential audience and imposing on the employer the burden, which it deemed minimal, of winnowing untimely claims later. Employers should be aware that there is a wealth of authority that can be used to achieve a different result with respect to each of these issues.