OPINION AND ORDER Victor H. Alvarado Balderramo (“Alvarado”) brings this FLSA collective action and class action lawsuit against Go New York Tours Inc. and its president and owner, Asen Kostadinov (collectively “Defendants”). Plaintiffs have alleged violations of the minimum wage and overtime provisions of the Fair Labor Standards Act (“FLSA”) and related violations of New York Labor Law (“NYLL”).1 Before the Court is Defendants’ motion for summary judgment, or alternatively, to stay the action pending resolution of a New York State Department of Labor (“NYSDOL”) investigation pursuant to the primary jurisdiction doctrine. For the reasons discussed below, Defendants’ motion is DENIED. I. BACKGROUND A. Factual and Procedural History Plaintiffs first brought this action on March 27, 2015. Alvarado is a former tour bus driver for Go New York, which provides guided bus tours of New York City. Alvarado has alleged that Defendants failed to provide appropriate minimum wage and overtime compensation, failed to provide “spread of hours” pay as required under 12 N.Y. Comp. Codes R. & Regs. (“NYCRR”) §142-2.4, did not provide uniform maintenance pay under 12 NYCRR §142-2.5(c), did not make timely payment of wages as required by NYLL §191(d), and did not provide wage statements or wage notices as required by NYLL §§195(1)-(3). Alvarado alleges that he worked between 70 and 87 hours per week, often for more than ten hours per day. Doc. 16 at
18-20. After filing an amended complaint, which added Luis Falquez as a plaintiff, Plaintiffs moved to conditionally certify this matter as a FLSA collective action on January 22, 2016. Doc. 18. Following Defendants’ consent to this conditional certification, the Court granted Plaintiffs’ motion on April 29, 2016. Doc. 33. The Court issued an order and notice conditionally certifying this case as a collective action on May 9, 2016. Doc. 35. The order covered “all employees of the defendants who worked as tour bus drivers and who were employed at any time since March 27, 2012.” Id. at 2. Twenty-two individuals consented to become party plaintiffs in the following months. Plaintiffs then filed a motion seeking to certify a class under Fed. R. Civ. P. 23(b)(3), as well as to conditionally certify a collective action for tour guides (in addition to the bus drivers who were covered by the Court’s May 9, 2016 order). Doc. 66. On June 28, 2017, the Court granted Plaintiffs’ motion for class certification but denied Plaintiffs’ motion to conditionally certify a class encompassing tour guides. Doc. 104. Following a subsequent request by the parties, the Court issued an order on January 29, 2020 clarifying the scope of the classes. See Doc. 165. The Court noted that the “Rule 23 class is composed of bus drivers employed from March 27, 2009 on — the end of the class period will be subject to an opt-out deadline.” Id. at 6. Following the Court’s June 2017 class certification decision, there was no activity in this case for about twenty-two months. However, after the Court sua sponte dismissed this case for failure to prosecute in April 2019, Plaintiffs wrote that they had been pursuing settlement negotiations and requested that the case be re-opened. Doc. 108. The Court granted the request to re-open the case. Doc. 109. Defendants thereafter moved to dismiss on the basis of Plaintiffs’ failure to prosecute. Doc. 137. The Court denied this motion on November 1, 2019. Doc. 159. The parties have since been engaged in discovery. B. The NYSDOL Investigations Defendants now move for summary judgment, arguing that this action must be dismissed or stayed due to overlapping investigations by the NYSDOL. As described in more detail in §I.B.ii-iv., the record reflects that the NYSDOL has conducted three investigations into Defendants’ labor practices, though two have been consolidated. i. Background Regarding NYSDOL Investigations Under New York Labor Law, the NYSDOL may investigate suspected labor law violations such as those alleged by Plaintiffs. See generally NYLL §21. The NYSDOL has the power to investigate or bring a civil suit on behalf of an employee. See, e.g., NYLL §663(2) (authorizing the NYSDOL to bring legal action to collect unpaid wages). However, this power is not exclusive. As relevant here, under the NYLL an aggrieved employee with wage and hour claims may either file a complaint directly with the NYDSOL, or file a private lawsuit. See §663(1), (3) (providing for a private cause of action and noting that “[i]nvestigation by the commissioner shall not be a prerequisite to nor a bar against a person bringing a civil action under this article”); see also NYLL §196-a(a) (permitting employees to file complaints directly with the NYSDOL). At the end of the NYSDOL’s investigation, it may issue an “Order to Comply,” or otherwise notify the parties that the investigation has concluded. See NYLL §663(3). If an Order to Comply is issued, it is appealable to the Industrial Board of Appeals (“IBA”). NYLL §101, see also 12 NYCRR §66.1; Doc. 190-2, Defs’ Ex. N (website excerpts explaining the IBA appeal process). An IBA appeal approximates a judicial proceeding and the NYSDOL would appear as a party. 12 NYCRR §66.1(c). Following the IBA’s determination, a party may appeal to state court pursuant to CPLR Article 78. Id. §102(2). ii. Investigation 1185 At an unidentified date, the NYSDOL began investigation number LS012012011185 (“Investigation 1185″), which examined Defendants’ treatment of several employees during the time period of March 19, 2012 to April 6, 2014. Doc. 191-1, Defs’ Ex. L, at D010570.2 This investigation resulted in a settlement on or about March 24, 2017, in which Defendants paid $18,066.89 to nine employees, three of whom — Michael Ray, Rory Friday, and Erick Espinosa — were bus drivers. See id. at D010597-98; D010629-30, 36-38.3 A fourth driver, Juan Peralta, was identified as part of the investigation, but does not appear to have been included in the ultimate settlement. Id. at D010596, D010629-30. The four bus drivers included in the NYSDOL investigation are also included in the instant collective action. Compare Doc. 213 at 24 with Doc. 191-1 at D010629-30. The NYSDOL settlement was based on the agency’s finding that Defendants “failed to provide the correct wages for overtime hours worked and failed to pay workers their complete regular wages.” Id. at D010570. The settlement also imposed penalties for Defendants’ alleged failure to provide meal breaks, and failure to provide wage statements. A letter from the NYSDOL to Defendants’ former counsel also indicates that the NYSDOL found violations of NYLL §191a, failure to timely pay wages, though the settlement does not appear to have imposed penalties based on this violation. Id. at D010659. The settlement agreement provides that the NYSDOL “will not issue future assessments against [Defendants] for unpaid wages and/or wage benefits due to any of the employees…for the period covered therein, but reserves the right to investigate any claims of wages and/or wage benefits due to: other employees during any time period; or the employees…for time period other than those set forth therein.” Id. at D010637. The agreement also provided that no party could seek further redress at the IBA or in court regarding “such matter…except as may be necessary to enforce the terms of this Stipulation.” Id. at D010638. However, Plaintiffs have taken the position that because Ray, Friday and Espinosa did not execute any waiver of rights in connection with the NYSDOL investigation — and because the parties to the settlement were the NYSDOL and Defendants (as opposed to the drivers themselves) — nothing prevents these drivers from pursuing this action. Doc. 215, Pls. Opp. at 5. iii. Investigations 7786 and 1502 On undisclosed dates in 2014 and 2015, the NYSDOL instituted two additional investigations of Defendants, investigation numbers LS202014007786 (“Investigation 7786″) and LS20215001502 (“Investigation 1502″). Doc. 187, Defs’ 56.1 at
