Brown v. Avalonbay Cmtys., Inc.

• Decision Date: 29 March 2019
• Docket Number: CV 17-6897 (AKT)
• Parties: ERIKA BROWN, KAMARIEA MAGETTE, and DIANA RUFUS, on behalf of themselves and all others similarly situated, Plaintiffs, v. AVALONBAY COMMUNITIES, INC. Defendant.
• Court: U.S. District Court — Eastern District of New York

ERIKA BROWN, KAMARIEA MAGETTE, and DIANA RUFUS,on behalf of themselves and all others similarly situated, Plaintiffs, v. AVALONBAY COMMUNITIES, INC.Defendant.

CV 17-6897 (AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 29, 2019

MEMORANDUM AND ORDER

A. KATHLEEN TOMLINSON, Magistrate Judge:

I.PRELIMINARY STATEMENT

PlaintiffsErika Brown("Brown"), Kamariea Magette("Magette"), and Diana Rufus("Rufus")(collectively, "Plaintiffs") commenced this putative collective and class action against DefendantAvalonBay Communities, Inc.("AvalonBay" or "Defendant") for violations of the Fair Labor Standards Act("FLSA"), the New York Labor Law("NYLL"), and myriad other state wage and hour laws.See generallyPlaintiff's Amended Complaint ("Am. Compl.")[DE 10].Plaintiffs seek to recover, among other things, for Defendant's alleged failure to pay overtime wages.Seeid.Plaintiffs now move for conditional certification as a collective action and for permission to disseminate court-authorized notice, pursuant to Section 216(b) of the FLSA.See generallyPlaintiffs' Memorandum in Support of their Motion for Conditional Certification("Pls.'Mem.")[DE 18]; Plaintiffs' Memorandum in Reply ("Pls.'Reply")[DE 21].Defendant opposes Plaintiffs' motion, arguing that Plaintiffs have failed to make the modest factual showing required for conditional certification.See generallyDefendant's Memorandum in Opposition to Plaintiffs' Motion ("Def.'s Opp'n.")[DE 20].

After reviewing the motion papers submitted by counsel as well as the applicable law, the Court GRANTS Plaintiffs' motion for the reasons set forth below and subject to the directives of this Memorandum and Order.

II.BACKGROUND

A.Allegations in Plaintiffs' Amended Complaint

The following facts taken from Plaintiffs' Amended Complaint are assumed to be true for purposes of the instant motion.AvalonBay is a publicly traded real estate investment trust incorporated in Maryland and headquartered in Arlington, Virginia.Am. Compl. ¶ 6.AvalonBay develops, owns, operates, manages, and maintains luxury apartment communities throughout the United States.Id.Members of the collective and putative class in this action are current and former hourly employees of AvalonBay who worked under various job titles, including "Leasing Consultants"(also known as "Community Concierges"), "Technicians"(which includes "Technician 1,""Technician 2," and "Technician 3" positions), and other maintenance and service-related positions.Id.¶ 7.Named Plaintiffs Brown, Magette, and Rufus are current and former Leasing Consultants assigned to work at multiple AvalonBay properties in New York.Id.¶ 8.As Leasing Consultants, Plaintiffs were responsible for showing and renting units to residents and prospective residents.Id.Their employment spans the period from 2011 to the present.Id.

1.Plaintiff Brown

Plaintiff Brown was employed as a Leasing Consultant at seven of AvalonBay's New York properties: (1)"Avalon Commons" located at 313Avalon Cir., Smithtown, NY 11787; (2)"Avalon Court" located at 100 Court N. Dr., Melville, NY 11747; (3)"Avalon Rockville Centre" located at 80 N. Centre Ave., Rockville Centre, NY 11570; (4)"Avalon Garden City" located at 998 Stewart Ave., Garden City, NY 11530; (5)"Avalon Towers" located at 10W. Broadway,Long Beach, NY 11561; (6)"Avalon Fort Greene" located at 343 Gold St., Brooklyn, NY 11201; and (7)"Avalon Riverview" located at 4-75 48^th Ave., Long Island City, NY 11109. Am. Compl. ¶ 23.Brown was employed by AvalonBay for approximately twenty-five months, from May 28, 2012 to June 30, 2014.Id.¶ 24.Her primary work duties consisted of leasing units to tenants and prospective tenants at her assigned property.Id.¶ 25.She was also responsible for staging apartments and assisting tenants with moving in and out.Id.Brown worked with approximately one to five other Leasing Consultants at each of her assigned properties, including April Converse("Converse"), who was employed with AvalonBay from 2008 to 2013. Id.¶ 26.Converse worked with Brown at Avalon Commons in Smithtown, NY, and with Danielle Martin("Martin"), who was employed with AvalonBay from September 2009 to June 2014.Id.Martin worked with Brown at Avalon Fort Greene in Brooklyn, NY as well as Avalon Riverview in Long Island City, NY.Id.Depending on her assigned property, Brown's work schedule was either 8:30 a.m. to 5:30 p.m. or 9 a.m. to 6 p.m., five days per week, with a one-hour lunch break each day.Id.¶ 66.Her rate of pay was $22 per hour.Id.Brown recorded her time by using Defendant's finger print system to "clock in" when she arrived at the premises and "clock out" when she left for the day.Id.¶ 67.She also clocked in and out when she took her one-hour lunch break.Id.

2.Plaintiff Rufus

Plaintiff Rufus has worked at various AvalonBay properties as both a Concierge and a Leasing Consultant.Am. Compl. ¶ 30.She began her employment with AvalonBay in 2011 as a Concierge at AvalonBay Fort Green.Id.¶ 31.As a Concierge, Rufus was primarily responsible for customer service, and she would greet residents, check-in visitors, and distribute packages to residents.Id.¶ 32.Rufus worked with three to five other Concierges at Avalon Fort Greene,including Gladys Galarza("Galarza").Id.¶ 33.As a Concierge, Rufus' schedule was 7 a.m. to 3 p.m., Sunday through Thursday, with a one-hour lunch break each day.Id.¶ 70.Her rate of pay as a Concierge was $20.22 per hour.Id.On February 13, 2013, Rufus transitioned from a Concierge position at Avalon Fort Greene to a Leasing Consultant position at that location - a position she held from 2013 to February 2017.Id.¶ 34.While a Leasing Consultant at Avalon Fort Greene, Rufus' work schedule was 9 a.m. to 6 p.m., five days per week, with a one-hour break for lunch each day.Id.¶ 75.Her rate of pay as a Leasing Consultant at Avalon Fort Green was $22.96 per hour.Rufus worked with approximately three to five other Leasing Consultants while at Avalon Fort Green, including Plaintiff Brown, Plaintiff Magette, and current Leasing Consultants Jeanelle Mothersill ("Mothersill"), David Greene("Greene"), Denise Torres("Torres"), Richard Castillo("Castillo"), Nazila Ali("Ali"), and Shafira C. Id.¶ 36.Currently, Rufus works with two other Leasing Consultants at Avalon Brooklyn Bay, where her schedule is 9 a.m. to 6 p.m. and her rate of pay is $23.63 per hour.Id.¶ 76.Throughout her employment with AvalonBay, Rufus recorded her time by using a finger print system to "clock in" when she arrived at the premises and "clock out" when she left for the day.Id.¶ 78.She also clocked in and out when she took her one-hour lunch break.Id.

3.Plaintiff Magette

Plaintiff Magette was employed by Defendant as a Leasing Consultant at Avalon Fort Greene for approximately two years and eight months, from July 2012 to March 2015.Am. Compl. ¶ 40.Magette worked with approximately three to five other Leasing Consultants while working at Avalon Fort Greene, including Plaintiff Rufus and Jeanelle Mothersill.Id.¶ 42.While at Avalon Fort Greene, Magette's work schedule was 9 a.m. to 6 p.m., five days a week, with a one-hour break for lunch each day.Id.¶ 82.Magette recorded her time by usingDefendant's finger print system to "clock in" when she arrived and "clock out" when she left for the day.Id.¶ 84.She also clocked in and out when she took her one-hour lunch break.Id.

4.Defendant's Allegedly Unlawful Practices

Plaintiffs allege that AvalonBay improperly categorized certain time worked by Plaintiffs and other putative class and collective members as "Non-Productive Hours."Am. Compl. ¶ 9.Specifically, Defendant required Plaintiffs and their co-workers to attend work-related meetings and events, which were labeled as "non-productive" time.As per Defendant's practice, an employees' "non-productive" hours are not eligible for overtime compensation even when an employee works more than 40 hours in a work week.Id.¶10.Plaintiffs contend that Defendant's policy and practice of assigning different pay rates for productive and non-productive hours is a unilateral employment decision that is not reflected in any agreements between Defendant and its employees.Id.¶ 11.

According to Plaintiffs and other current and former AvalonBay workers, Defendant's Non-Productive Hour policy was not limited to maintenance and service workers employed at Defendant's New York properties.To the contrary, this was a nation-wide practice applicable to all hourly employees, including Leasing Consultants, Concierges, Maintenance Technicians, and other service-related employees working at all AvalonBay properties throughout the United States.Am. Compl. ¶ 14.Plaintiffs state that Defendant classified time spent at staff meetings, training sessions, employee lunches, and other work-related events which Plaintiffs and other putative collective members were required to attend, as "non-productive hours."Id.¶ 85.These required events could last for several hours depending on the nature of the event.Id.Plaintiffs clam they often had discussions with their Leasing Consultant and Concierge co-workers, including Mothersill, Ali, Gutie, Whiteman, Vargas, Keith, and Sierra, regarding Defendant'sNon-Productive Hours policy.Id.¶ 89.Pursuant to the policy, any "non-productive" work exceeding 40 hours per week was compensated at Plaintiffs' regular rate of pay, and, therefore, if Plaintiffs worked 45 hours in a given week and five hours were "non-productive" hours, they would receive their regular rate of pay for all 45 hours.Id.¶ 93.

Plaintiffs allege that Defendant actually admitted that its Non-Productive Hours policy was unlawful.In the fall of 2017, AvalonBay held several staff meetings at which Supervisors, including AvalonBay's Director of National Labor Board Relations and Human Resources, stated that the company had made a mistake with...