OPINION & ORDER This is an action brought by Plaintiff Adam Sarr against Defendants Sinergia, Inc. (“Sinergia”) and Donald Lash1 for alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201 et seq., and New York Labor Law (“NYLL”). Plaintiff moves for conditional collective certification pursuant to 29 U.S.C. §216(b), see Mot., Dkt. 26, which Defendant opposes, see Def. Opp., Dkt. 31. For the reasons stated below, Plaintiff’s motion for collective certification is GRANTED in part. BACKGROUND Plaintiff Adam Sarr was employed as a direct support professional by Sinergia, a nonprofit organization dedicated to helping “people with disabilities[] and underserved people with various limitations” in New York City, from September 2020 to November 2021. Compl., Dkt. 1 6; see also id. 23. As is relevant to the current motion, Plaintiff alleges that Defendants unlawfully failed to compensate Plaintiff for all hours worked. She specifically complains that she was not compensated for travel time between assignments and for meal breaks even though, at times, she was required to work during the meal break.2 Id.
27, 28. Plaintiff now seeks to certify a collective “comprised of all non-exempt workers employed by” Sinergia during the past six years.3 Pl. Mem., Dkt. 27 at 3. I. Plaintiff Has Established that Certain Members of the Proposed Collective Are Similarly Situated to Her A. Legal Standard The Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201 et seq.,4 permits employees to maintain an action for and on “behalf of…themselves and other employees similarly situated,” 29 U.S.C. §216(b). In determining whether to certify a collective action, courts in the Second Circuit use a two-step process. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). At the notice stage, a plaintiff must establish that other employees “may be ‘similarly situated’” to her. Id. at 555 (citation omitted). To meet this burden, the plaintiff need only “make a ‘modest factual showing’ that [she] and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the law.’” Id. (citation omitted). “[I]f named parties and party plaintiffs share legal or factual similarities material to the disposition of their claims, dissimilarities in other respects should not defeat collective treatment.” Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 516 (2d Cir. 2020) (internal quotation omitted). Although that burden is modest, “it is not non-existent,” Fraticelli v. MSG Holdings, L.P., No. 13-CV-6518, 2014 WL 1807105, at *1 (S.D.N.Y. May 7, 2014) (internal quotation marks and citation omitted), and it generally cannot be satisfied by “unsupported assertions,” Myers, 624 F.3d at 555 (internal quotation marks and citation omitted). Nonetheless, courts employ a “low standard of proof because the purpose of this first stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist.” Id. (citation omitted). Courts do not examine at this point “whether there has been an actual violation of law.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (citing Krueger v. N.Y. Tel. Co., No. 93-CV-178, 1993 WL 276058, at *2 (S.D.N.Y. July 21, 1993)). At the second stage, when the court has a more developed record, the named plaintiffs must prove that “the plaintiffs who have opted in are in fact ‘similarly situated’” to the named plaintiffs and that they were all subject to a common illegal wage practice. She Jian Guo v. Tommy’s Sushi Inc., No. 14-CV-3964, 2014 WL 5314822, at *2 (S.D.N.Y. Oct. 16, 2014) (quoting Myers, 624 F.3d at 555). The action may be “‘de-certified’ if the record reveals that [the opt-in plaintiffs] are not [similarly situated], and the opt-in plaintiffs’ claims may be dismissed without prejudice.” Myers, 624 F.3d at 555 (citation omitted). B. Plaintiff Has Met the Notice-Stage Burden as to Direct Support Professionals Plaintiff seeks to certify a collective of “all non-exempt” employees who were employed by Sinergia. Pl. Mem. at 3. Because courts do not examine “whether there has been an actual violation of law” at the notice stage, Young, 229 F.R.D. at 54 (citation omitted), the Court need not delve into whether Plaintiff has stated a claim under federal law. Instead, the proper inquiry is whether Plaintiff has demonstrated that she is similarly situated vis-à-vis her FLSA claim to the putative collective members. The Court finds that she has carried this burden with respect to other direct support professionals only. Plaintiff’s motion for collective certification states that the members of the proposed collective are similarly situated to Plaintiff but does nothing to support that assertion as to individuals in job categories other than her own. Plaintiff includes no information about the duties, hours worked, or names of persons who worked in other jobs categories. Nevertheless, based entirely on Plaintiff’s experience as a direct support professional, she asserts that “all non-exempt workers” should be included in the proposed collective. Pl. Mem. at 3. While the burden of proof at the notice stage is low, it is not this low. Plaintiff is not required to provide details about “every single non-exempt employee,” Pl. Reply, Dkt. 32 at 3, but Plaintiff is expected to provide “a modest factual showing” in support of her assertion that members of the proposed collective suffered FLSA violations similar to the ones Plaintiff alleges to have experienced, Myers, 624 F.3d at 555 (cleaned up). Because Plaintiff entirely failed to do so as to job categories other than her own, Plaintiff’s motion to include job categories other than direct support professionals is denied.5 Plaintiff’s declaration is (barely) adequate to show that all direct support professionals were “victims of a common policy or plan that violated the law.” Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006) (internal quotation omitted). While Plaintiff has submitted only her own declaration in support of her motion, see Sarr Decl., Dkt. 29; Pl. Mem. at 4-5, that is not fatal. A plaintiff seeking conditional certification is not “required to buttress his motion with affidavits besides his own or with other documentary evidence.” Mata v. Foodbridge LLC, No. 14-CV-8754, 2015 WL 3457293, at *3 (S.D.N.Y. June 1, 2015). Courts in this Circuit routinely grant conditional collective certification based only on representations contained within the plaintiff’s affidavit. Id. (citing Hernandez v. Bare Burger Dio, Inc., No. 12-CV-7794, 2013 WL 3199292, at *3 (S.D.N.Y. June 25, 2013) (collecting cases)). Plaintiff states that she knows that members of the proposed collective suffered violations under a similar wage policy based on her conversations with coworkers, including ten direct support professionals with whom she discussed Defendants’ employment practices.6 Sarr Decl. 2; see also id. 3. Plaintiff and three other direct support professionals — Ravan (last name unspecified), Tanisha De Jesus, and Tiffany Thomas — discussed Defendants’ practice of automatically deducting meal breaks “every day while working on the job site, in the office during training, and also while we were relieving each other of our shifts.” Id.
