Gathmann-Landini v. Lululemon U.S. Inc.
| Decision Date | 13 August 2018 |
| Docket Number | CV 15-6867 (JMA)(AYS) |
| Parties | REBECCA GATHMANN-LANDINI, individually and on behalf of other persons similarly situated, Plaintiffs, v. LULULEMON USA INC.; and any other related entities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff, Rebecca Gathmann-Landini ("Plaintiff" or "Gathmann-Landini") commenced this action, on behalf of herself and others similarly situated, pursuant to the Federal Fair Labor Standards Act of 1938 ("FLSA"), New York Labor Law ("NYLL") Article 19 § 663, NYLL Article 6 §§ 190 et seq., and 12 NYCRR § 142-2.2. Plaintiff seeks unpaid wages, overtime compensation and other damages. Named as defendants are corporate defendant Lululemon USA Inc. and "any other related entities" ("Lululemon" or "Defendants").
Presently before the court is Plaintiff's motion to have this matter proceed conditionally as a collective pursuant to 29 U.S.C. §216(b).1 In the event that this Court approves of the conditional collective, Plaintiff seeks approval of a form of notice advising members of the collective of their right to opt-in to this action, and authorizing the sending and/or posting of notice of the collective. Defendant opposes the motion in its entirety.
For the reasons set forth below, Plaintiff's motion to proceed as a conditional collective is granted. The collectives shall consist of: 1) those employed by Defendant Lululemon USA Inc. as Educators, Key Leaders, and Assistant Managers at any of its New York State retail locations from August 27, 2013 to today, who were not paid straight or overtime compensation for "community work" in at least one work week during this time, and 2) those employed by Defendant Lululemon USA Inc. as Key Leaders and Assistant Managers at any of its New York State retail locations from August 27, 2013 to today who were not paid straight or overtime compensation for "administrative work" in at least one work week during this time. With regard to the form of notice, this Court's "Notice Form" is attached, and is the presumptively correct form to be used in cases before this Court where a collective is certified. Counsel are directed to confer regarding the language of this notice. Any proposed or agreed upon changes to this Court's form are to be submitted for review, along with an explanation as why the change is necessary. This Court will then rule on the appropriate form of notice.
The facts summarized below are drawn from the submissions of the parties as described below. Plaintiff relies on the allegations set forth in her Amended Complaint, ("Am. Compl.") see Docket Entry ("DE") 37, as well as documents and declarations. In particular Plaintiff's counsel has submitted a variety of Lululemon corporate documents and emails. As to factual declarations, Plaintiff submits her own declaration ("Plaintiff Dec.") (DE 55-4), a reply declaration ("Plaintiff Reply Dec.") (DE 56-2), and the declaration of Julia Hammer, a formerLululemon employee ("Hammer Decl.") (DE 55-5) ("Hammer Decl.").2 In response, Lululemon submits factual declarations by numerous if its employees. DE 58. These declarations uniformly refute all of Plaintiff's factual allegations.
Lululemon is a foreign business corporation organized and existing under the laws of the State of Delaware, and is authorized to do business in the State of New York. Am. Compl. ¶ 8. It presently operates 25 retail locations in New York State, which are under common control by Lululemon. Am. Compl. ¶¶ 8-9.
Plaintiff was employed as a seasonal educator from November 1, 2012 to approximately January 2013 at Lululemon's Roosevelt Field location, before being promoted to an Assistant Manager. She worked for Lululemon until her employment ended in approximately November of 2015. Am. Compl. ¶ 24. Plaintiff states that during the entirety of her employment with Lululemon, she was paid an hourly wage rate, which ranged from $12.00 to $22.29 per hour. Am. Compl. ¶ 25. Plaintiff states that her "weekly work schedule varied from day to day and from week to week during her employment," and "her schedule was typically designed toinclude enough shifts and hours to roughly equate to a 40-hour work week 'on the clock.'" Am. Compl. ¶¶ 28-29.
Plaintiff claims that members of the putative class also had work weeks during their employment with Lululemon where they were paid on the clock for at least 40 hours of work. She states that she and members of the putative class commonly worked additional compensable time each week off-the-clock, but were not paid for this work. Am. Compl. ¶¶ 34-35. Plaintiff's claims of unpaid work include claims of unpaid (and required) "community work", as well as claims of performing administrative tasks off the clock so as not to exceed the company's allowable 40 hour work week.
Plaintiff describes required "community work" to include activities such as "organizing and promoting fitness classes and related events for people in the community, attending fitness classes and events in the community, and recruiting fitness instructors in the community to work as brand 'ambassadors,' among other tasks." Am. Compl. ¶¶ 45-46. Plaintiff alleges that she and members of the suggested collective were told by management to perform such work, and that failure to do so would result in discipline or termination. Plaintiff alleges that she and members of the putative collective performed community work without pay in weeks when they were paid on the clock for 40 hours. Had community work been included in hours worked, Lululemon would have been required to pay overtime wages. Am. Compl. ¶ 51.
Plaintiff's allegations of unpaid overtime work also include allegations regarding work performed by above entry-level Lululemon "Educators" who were required to perform administrative work each week as part of their job duties. Am. Compl. ¶ 59. Administrative work "consisted of a variety of tasks that were all part of Plaintiff and other assistant and store managers' job responsibilities," which required them to "submit various daily, weekly, andmonthly reports," "to respond to and make telephone calls" and e-mails, and to make and revise weekly schedules. Am. Compl. ¶ 60. Plaintiff alleges that she and members of the collective were required to work on the retail floor during their scheduled shifts; that there was not enough time during Plaintiff's scheduled weekly shifts, or of other assistant and store managers, to complete all the required administrative work; and thus, Plaintiff and members of the putative class performed administrative work off-the-clock, for which they did not receive compensation of their hourly or overtime wage rate. Am. Compl. ¶¶61, 64-65.
Plaintiff's first cause of action in the Complaint alleges violations of New York Labor Law §191 due to Defendants' failure to pay wages for time worked; and of New York Labor Law §193 due to Defendants allegedly making unlawful deductions from the wages of the Plaintiff and members of the putative class. See Am. Compl. ¶¶ 78-81. Plaintiff's first cause of action further seeks recovery of any such underpayments, together with costs and reasonable attorney's fees pursuant to New York Labor Law §663. Am. Compl. ¶ 82. The second cause of action in the Amended Complaint alleges overtime wage violations pursuant to Title 12 NYCRR §142-2.2. Am. Compl. ¶¶86-90. Plaintiff's third cause of action alleges parallel overtime wage violations pursuant to the FLSA. Am. Compl. ¶¶ 94-96. Plaintiff seeks compensatory damages for herself and those who opt in to the collective, as well as liquidated damages, attorneys' fees and the costs of this action.
Plaintiff seeks to pursue this matter as an FLSA collective action that includes all individuals employed by Lululemon as Educators, Key Leaders, and Assistant Managers at any of its New York State retail locations from August 27, 2013 to date, and who were paid "on the clock" for 38 or more hours in at least one work week during this time. See e.g., Memorandumof Law in Support of Plaintiff's Motion for Conditional Certification Pursuant to 29 U.S.C. §216(b) of the Fair Labor Standards Act ("Pl. Mem"). DE [54] at 1. Members of the proposed collective are alleged to be subject to the same unlawful policy as Plaintiff in that they, like Plaintiff, were required to perform work off-the-clock to skirt the FLSA's overtime provisions. Id. Defendants' conduct with respect to the improper payment of wages is alleged to be willful. Am. Compl. ¶ 96. In furtherance of her request to proceed as a collective action, Plaintiff requests court-authorized notice be published to the putative collective to notify them of the pendency of this action, and of their rights under the FLSA. DE [54] at 2.
As noted, Plaintiff seeks conditional certification of this matter as an FLSA collective, and to have notice of the pendency of this action (and the right to opt in), sent to all potential members of the proposed collective. The individuals to whom notice is proposed to be sent are described as those "employed by Defendant Lululemon USA Inc. as Educators, Key Leaders, and Assistant Managers at any of its New York State retail locations from August 27, 2013 to today and who were paid 'on the clock' for 38 or more hours in at least one work week during this time." See DE 54 at 1. In support of the motion, Plaintiff submits, as noted, her declarations, as well as the Hammer Declaration and supporting affidavits.
Plaintiff's declaration states that she worked a number of hours each week which were off-the-clock and thus, she was not paid for all the hours worked, and that "[m]ost of these 'off-the-clock' hours would have been overtime hours. Gathmann-Landini ...
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