Sharma v. Burberry Ltd.

• Decision Date: 04 September 2014
• Docket Number: No. 12–6356 LDWAKT.,12–6356 LDWAKT.
• Citation: 52 F.Supp.3d 443
• Parties: Poonam SHARMA, Brian Roach, Ronnel Jarin, and Nikita Simon, on behalf of themselves and all others similarly situated, Plaintiffs, v. BURBERRY LIMITED a/k/a Burberrys Limited, Defendant.
• Court: U.S. District Court — Eastern District of New York

52 F.Supp.3d 443

Poonam SHARMA, Brian Roach, Ronnel Jarin, and Nikita Simon, on behalf of themselves and all others similarly situated, Plaintiffs

v.BURBERRY LIMITED a/k/a Burberrys Limited, Defendant.

No. 12–6356 LDWAKT.

United States District Court, E.D. New York.

Signed Sept. 4, 2014.

Daniel Maimon Kirschenbaum, Douglas Weiner, Joseph & Kirschenbaum LLP, New York, NY, David Harrison, Harrison, Harrison & Associates, Ltd., Red Bank, NJ, for Plaintiffs.

Amy L. Bess, Vedder Price P.C., Washington, DC, Joseph K. Mulherin, Vedder Price PC, Chicago, IL, Lyle S. Zuckerman, Vedder Price P.C., New York, NY, for Defendant.

DECISION AND ORDER

A. KATHLEEN TOMLINSON, United States Magistrate Judge.

Plaintiffs Poonam Sharma (“Sharma”), Brian Roach (“Roach”), Ronnel Jarin (“Jarin”), and Nikita Simon (“Simon”) (collectively, “Plaintiffs”) bring this action on behalf of themselves and all similarly situated persons seeking unpaid overtime compensation from Defendant Burberry Limited a/k/a Burberrys Limited (“Defendant” or “Burberry”), pursuant to the Fair Labor Standards Act of 1938 (“FLSA”), as amended, 29 U.S.C. §§ 201 et seq. and the New York Labor Law.

Plaintiffs have moved for conditional certification as a collective action and for notice of pendency to potential collective action members, pursuant to 29 U.S.C. § 216(b) (“Plaintiffs' Motion for Conditional Certification”). DE 46. Plaintiffs have also filed two motions to compel documents, including a representative sample of nationwide employee data. DE 43, 64. Defendant has moved to strike portions of Plaintiffs' evidence submitted in support of Plaintiffs' Motion for Conditional Certification (“Defendant's Motion to Strike”) [DE 51] and has filed two motions to supplement the record [DE 62, 66]. Plaintiffs have also moved to supplement the record. DE 75. Based on the Court's review of the parties' submissions as well as the applicable case law: (1) Plaintiffs' Motion for Conditional Certification is hereby GRANTED in part and DENIED in part; (2) Defendant's Motion to Strike is DENIED; (3) Plaintiffs' and Defendant's motions to supplement the record are GRANTED; and (4) Plaintiffs' motions to compel are GRANTED in part and DENIED in part to the extent set forth below.

I. Background

A. Plaintiffs' Motion for Conditional Certification

The following alleged facts are taken from the Amended Complaint filed in this case on April 15, 2013 [DE 16] and the declarations submitted by the four named Plaintiffs and two opt-in Plaintiffs—including the declaration of Danny Kozak (“Kozak”), a former manager at Burberry—in support of Plaintiffs' Motion for Conditional Certification [DE 46] and in support of Plaintiffs' letter motion to supplement the record [DE 75]. See “Kozak Decl.”; “Sharma Decl.”; “Roach Decl.”; “Jarin Decl.”; “Simon Decl.”; “Sioson Decl.”; and “Simms Decl.,” attached as Exs. 1–6 to Plaintiffs' Motion for Conditional Certification [DE 46] and Ex. 1 to Plaintiffs' letter motion to supplement the record [DE 75].

Burberry is an international high-end retail fashion enterprise, operating approximately 65 retail store establishments in the United States. Kozak Decl. ¶ 1. Burberry employs Sales Associates (“SAs”) in each store to attend to retail customers and make sales of merchandise. Id. ¶ 3.

An SA is a non-exempt position which is paid an hourly rate plus a commission based on sales of merchandise. Id. All of the Plaintiffs worked as SAs for Burberry. Am. Compl. ¶ 2. Plaintiff Sharma was employed at Burberry's Manhasset, New York store from May 2010 to January 2012. Sharma Decl. ¶¶ 2–3. Plaintiff Roach was employed at Burberry's Manhasset, New York store from July 2011 to June 2012. Roach Decl. ¶¶ 2–3. Plaintiff Jarin was employed at Burberry's Manhasset, New York store from October 2011 to October 2012. Jarin Decl. ¶¶ 2–3. Plaintiff Simon was employed at Burberry's Manhasset, New York store from August 2011 to May 2012. Simon Decl. ¶¶ 2–3. Plaintiff Sioson was employed at Burberry's Short Hills, New Jersey and Manhasset, New York stores from January 2009 to February 2012. Sioson Decl. ¶¶ 2–3. Plaintiff Damien Dane Simms was employed at Burberry's Manhasset, New York and Roosevelt Field Mall, New York stores from June 2008 to July 2012. Simms Decl. ¶¶ 2–3.

1. Plaintiffs' Declarations

Plaintiffs allege that they regularly worked more than 40 hours per week without being paid for overtime. Am. Compl. ¶¶ 36–37. Specifically, Plaintiffs allege that they were scheduled to work and were paid for 39 or 40 hours per week, but that they actually worked many more hours for which they were not compensated.¹ Sharma Decl. ¶¶ 4–5; Roach Decl. ¶¶ 4–5; Jarin Decl. ¶¶ 4–5; Simon Decl. ¶¶ 4–5; Sioson Decl. ¶¶ 4–5; Simms Decl. ¶ 6–7. According to Plaintiffs, they were required to work before and after their scheduled shifts, through meal periods, and extra hours during the holidays. Sharma Decl. ¶ 5; Roach Decl. ¶ 5; Jarin Decl. ¶ 5; Simon Decl. ¶ 5; Sioson Decl. ¶ 6; Simms Decl. ¶ 7. Working extra unpaid time was primarily due to (1) Burberry's practice of scheduling meetings before the start of the workday; (2) Burberry's strong emphasis on a high level of customer service; (3) understaffing at the stores; (4) high numbers of customers and heavy workload; (5) aggressive sales and related goals; and (6) Burberry's closing policies which required SAs to do a lot of work in the evening, after the store closed. Sharma Decl. ¶ 6; Roach Decl. ¶ 6; Jarin Decl. ¶ 6; Simon Decl. ¶ 6; Sioson Decl. ¶ 7. Notwithstanding Plaintiffs' actual hours worked, Burberry's policy was not to pay overtime to its SAs. Sharma Decl. ¶¶ 10–11; Roach Decl. ¶¶ 9–10; Jarin Decl. ¶¶ 9–10; Simon Decl. ¶¶ 9–11; Sioson Decl. ¶¶ 0–10; Simms Decl. ¶ 8–9. Instead, Burberry's policy required SAs to record scheduled hours only (and not actual hours worked) in order to avoid showing overtime on the weekly time sheets. Sharma Decl. ¶ 9; Roach Decl. ¶ 5; Jarin Decl. ¶ 9; Simon Decl. ¶ 9; Sioson Decl. ¶ 9; Simms Decl. ¶¶ 8–9. Thus, the weekly timesheets were inaccurate because they did not include the time SAs actually worked before and after scheduled shifts or during an unpaid lunch break. Sharma Decl. ¶ 8; Roach Decl. ¶ 8; Jarin Decl. ¶ 8; Simon Decl. ¶ 8; Sioson Decl. ¶ 9; Simms Decl. ¶ 8.

According to Plaintiffs, Burberry's managers, including Kozak, a General Manager (“GM”), and “Christine” and “Raphael,” managers at the Manhasset store, told the SAs that it was Burberry's policy not to pay overtime to its SAs. Sharma Decl. ¶ 10; Jarin Decl. ¶ 23; Simon Decl. ¶ 10; Sioson Decl. ¶ 26; Simms Dec. ¶ 4. In addition, according to opt-in Plaintiff Simms, who worked at the Manhasset and Roosevelt Field Mall locations, GMs Danny Kozak, Jamie Hollis and Eric Ali often told the SAs during meetings that overtime pay was not an option (except for sometimes during the holidays) and that overtime was not within Burberry's approved budget. Simms Decl. ¶ 20. Lastly, Plaintiffs claim that Regional Manager Barbara Hill personally observed SAs working off-the-clock after their shifts and it was “obvious” to her they were not being paid for off-the-clock time. Sharma Decl. ¶ 23; Simon Decl. ¶ 21.

Plaintiffs all claim that Burberry's pay practices were “widespread” and were the same at other Burberry stores as well. Plaintiffs Sharma, Jarin, Simon and Sioson claim they know the practice to be widespread “from what [they] w[ere] told by other Sales Associates.” Sharma Decl. ¶ 27; Jarin Decl. ¶ 27; Simon Decl. ¶ 26; Sioson Decl. ¶ 26. Plaintiff Roach states that the practices were widespread but proffers no explanation as to how he knows this. Roach Decl. ¶ 22. Plaintiffs Jarin and Simon, who worked at the Manhasset store, state that they spoke to SAs at the Roosevelt Field Mall store who told them that the SAs there routinely worked extra hours for which they were not paid. Jarin Decl. ¶ 25; Simon Decl. ¶ 27. These Roosevelt Field Mall SAs are identified by either first name only or both first and last name. Jarin Decl. ¶ 25; Simon Decl. ¶ 27.

2. Kozak's Declaration

In support of Plaintiffs' Motion for Conditional Certification, Plaintiffs submit the declaration of Danny Kozak, former GM of Burberry. Kozak explains that at each store, Burberry employs a GM to manage the business operation of the store. Kozak Decl. ¶ 1. GMs report to one of four Regional Managers, who in turn report to Burberry's President of Stores. Id. Kozak worked for Burberry for over ten years earning promotions from SA to Men's Selling Manager, to Assistant General Manager (AGM) and, lastly, to GM, a position he held until Burberry terminated him in January 2012. Id. He is not asserting an overtime claim because he was promoted to a salaried position in Burberry's management prior to the period covered in this lawsuit. Id.

Kozak was hired as an SA in November 2001 and worked as an SA in the Manhasset store through 2007. Id. ¶ 4. During those years, he was only paid for his scheduled 40 hours weekly, notwithstanding the fact that he routinely worked 50 hours per week and even more during holidays. Id. According to Kozak, Regional Manager Barbara Hill told him that it was “standard in the retail industry for employees to work off the clock, and that customer service was Burberry's top priority and overtime pay was not authorized.” Id.

In 2006, Kozak was promoted to the position of Men's Selling Manager (“MSM”). “In each store [he] worked,” Kozak saw the same practice of Burberry requiring Sales Associates to work off the clock. Id. ¶ 5.

In 2009, Kozak was promoted to AGM. As an AGM, he worked at all six stores in New York, Boston, Baltimore, and New Jersey. Id. ¶ 6. His duties included scheduling SAs in Burberry's stores and “following the same time keeping and weekly payroll procedures [he] had been taught by Burberry management.” Id. “Under the training, supervision and direction of Burberry's Regional Manager Barbara Hill, [he] reported [SAs'] scheduled hours for time keeping and...