Louis v. Ajay Glass & Mirror Co., Inc. et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
GARDY LOUIS and SHERRON
SAWYER, individually and on
behalf of all others similarly situated,
Plaintiffs,
-v- 	3:24-CV-00462 (AJB/ML)
AJAY GLASS & MIRROR CO., et al.,
Defendants.
_____________________________________
APPEARANCES: 	OF COUNSEL:
MCLAUGHLIN & STERN, LLP 	BRETT R. GALLAWAY, ESQ.
Attorneys for Plaintiffs 	JASON GIAIMO, ESQ.
260 Madison Avenue 	LEE S. SHALOV, ESQ.
New York, NY 10016
WOODS OVIATT GILMAN LLP 	WILLIAM G. BAUER, ESQ.
Attorneys for Defendants
1900 Bausch & Lomb Place
Rochester, NY 14604
Hon. Anthony Brindisi, U.S. District Judge:
DECISION & ORDER
I. 	INTRODUCTION
Plaintiffs are current and former hourly employees of defendants Ajay Glass & Mirror
Company, Jim Stathopoulos, Steve Stathopoulos, and Dean Stathopoulos (collectively
“defendants”). They allege that defendants have engaged in a policy and practice of not paying
plaintiffs and other similarly situated employees for all straight and overtime hours worked in
violation of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).
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Before the Court is plaintiffs’ motion for an order conditionally certifying a collective
action and approving plaintiffs’ proposed form and manner of notice to potential opt-in plaintiffs.
For the reasons below, plaintiffs’ motion is GRANTED IN PART and DENIED IN PART.
II. 	BACKGROUND
Defendant Ajay Glass & Mirror Company (“Ajay Glass”) is “one of the largest glass
subcontractors in the Northeastern United States[.]” Pls.’ Mot. for Conditional Certification,
Dkt. No. 62-14 at 10. The individual defendants possess ownership interests in the company.
See Am. Compl., Dkt. No. 24 ¶¶ 11–13. Defendants employ an array of workers and tradesmen.
See O’Shell Depo., Dkt. No. 62-12 at 6, 11.
The full range of these roles is unclear, as position- or trade-specific titles are seemingly
not used by defendants, though some are named in connection with this action: for instance,
glaziers, ironworkers, fabricators, and drivers. See Dkt. No. 62-14 at 12; see also Dkt. No. 62-12
at 6 (“Q: What are the different job titles of the non-exempt employees[?] A: Titles of non-
exempt employees—[t]hey’re going to be foremen, journeymen, and apprentices. Q: [T]he
journeymen and the apprentices, those can be trade specific. Right? A: Correct.”).
Regardless, whether in the “shop” or “field,” these workers all are considered “non-
exempt[,] hourly employees[.]” Dkt. No. 62-12 at 4; see id. at 8 (“Q: [O]f the non-exempt
employees, what is the . . . percentage who work in the shop compared to in the field on a . . .
daily basis? A: [I] would say 25 percent in the shop versus 75 percent in the field.”); id. at 9
(“Q: [A]nd . . . the non-exempt employees, they’re all hourly regardless of whether they work in
the shop or . . . field? A: Correct.”).
Named plaintiffs Gardy Louis and Sherron Sawyer and opt-in plaintiff Jay Printup were
glaziers for defendants: Louis from June 2023 to April 2024; Sawyer between October 2018 and
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November 2019; and Printup from September 2009 to February 2020. See Louis Decl., Dkt. No.
62-1 ¶ 2; Sawyer Decl., Dkt. No. 62-2 ¶ 2; Printup Decl., Dkt. No. 62-4 ¶ 1. Opt-in plaintiff
Justin Bryant drove and managed shipping services for defendants from April 2021 to May 2022.
See Bryant Decl., Dkt. No. 62-3 ¶ 1. And between 2021 and 2024, opt-in plaintiff Gary Wallace
was an ironworker for defendants. See Wallace Decl., Dkt. No. 62-5 ¶ 1. Each was a non-
exempt, hourly employee. See Dkt. No. 62-1 ¶ 1; Dkt. No. 62-2 ¶ 2; Dkt. No. 62-3 ¶ 1; Dkt. No.
62-4 ¶ 2; Dkt. No. 62-5 ¶ 1.
Plaintiffs allege that defendants maintain timekeeping policies and practices whereby
hourly employees are not compensated for all hours worked, including applicable overtime rates.
See Dkt. No. 24 ¶ 55. Specifically, they claim that defendants “automatically penalize” hourly
employees by paying based on the hours they were scheduled, not for time worked. See id. ¶ 56;
see, e.g., id. ¶ 57 (“For example, if an Hourly Employee is scheduled to end his shift at 4:00
p.m., and he stops performing his work duties at 4:10 p.m., he is paid only until 4:00 p.m.”); see
also id. ¶ 55 (“[H]ourly employees . . . therefore [are] not compensated for all hours worked,
including at the applicable overtime rate for hours worked in excess of 40 hours in a week.”).
III. 	STANDARD OF REVIEW
“The principal congressional purpose in enacting the [FLSA] was to protect all covered
workers from substandard wages and oppressive working hours, ‘labor conditions [that are]
detrimental to the maintenance of the minimum standard of living necessary for health,
efficiency and general well-being of workers.’” Mei Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395,
402 (2d Cir. 2019) (quoting Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739
(1981)).
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The Act “establishes minimum wage, overtime pay, recordkeeping, and other
employment standards.” Osorio v. Vector Structural Pres. Corp., 2024 WL 4607175, at *3
(E.D.N.Y. Oct. 28, 2024). “Section 216(b) of the FLSA provides a private right of action to
recover unpaid overtime compensation ‘against any employer . . . by any one or more employees
for and [o]n behalf of himself or themselves and other employees similarly situated.’” Batten v.
Citi Gen. Hardware, Inc., 2025 WL 2751149, at *1 (E.D.N.Y. Sept. 29, 2025).
Unlike a Rule 23 class, members of an FLSA collective action must affirmatively “opt
in.” Wilk v. Quality Installations of NY, Inc., 724 F. Supp. 3d 76, 83 (E.D.N.Y. 2024); see 29
U.S.C. § 216(b) (“No employee shall be a party plaintiff to any [collective] action unless he
gives his consent in writing to become such a party and such consent is filed in the court in
which such action is brought.”); see also Cooke v. Frank Brunckhorst Co., LLC, 722 F. Supp. 3d
127, 134 (E.D.N.Y. 2024) (“Under the FLSA[,] ‘conditional certification’ does not produce a
class with an independent legal status, or join additional parties to the action. The sole
consequence of conditional certification is the sending of court-approved written notice to
employees[.]”) (quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 (2013)).
IV. 	DISCUSSION
Plaintiffs seek conditional certification of an FLSA collective comprised of “all current
and former non-exempt hourly employees who were employed by Defendants . . . from April 2,
2021, through the trial of this action[.]” Not. Mot., Dkt. No. 62 at 1.
“The Second Circuit has endorsed a two-step method to certify FLSA collective actions.”
Zhao v. Surge Priv. Equity LLC, 2023 WL 3477591, at *3 (S.D.N.Y. May 16, 2023); see Son v.
Hand Hosp., 768 F. Supp. 3d 526, 538 (S.D.N.Y. 2025); see also Glatt v. Fox Searchlight
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Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016) (“In Myers, we endorsed a two-step process for
certifying FLSA collective actions.”) (citing Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010)).
“First, a motion for conditional certification is filed and the Court ‘must determine
whether there are any ‘similarly situated’ potential plaintiffs who should receive notice of the
pending action and have an opportunity to opt in.’” Aboah v. Fairfield Healthcare Servs., Inc.,
662 F. Supp. 3d 192, 202 (D. Conn. 2023) (quoting Gui Zhen Zhu v. Matsu Corp, 424 F. Supp.
3d 253, 263 (D. Conn. 2020)).
“To achieve conditional certification, plaintiffs must ‘make a modest factual showing that
they and potential opt-in plaintiffs together were victims of a common policy or plan that
violated the law.’” Laskowski v. St. Camillus Nursing Home Co., Inc., 2024 WL 4132198, at *7
(N.D.N.Y. Sept. 10, 2024) (Hurd, J.) (quoting Myers, 624 F.3d at 555) (internal quotations
omitted). “This modest factual showing cannot be satisfied via ‘unsupported assertions,’ but is a
forgiving standard of proof because the purpose of this first stage is merely to determine whether
‘similarly situated’ plaintiffs do in fact exist.” Provencher v. Bimbo Bakeries USA, Inc., 2024
WL 5197291, at *3 (D. Vt. Apr. 2, 2024).
“Where conditional certification is warranted, the Court, acting within its discretion, may
also order notice to potential opt-in plaintiffs.” Bryan v. Patriot LLC, 2025 WL 1730192, at *3
(N.D.N.Y. June 23, 2025) (Hurd, J.); see also Brickey v. Dolgencorp., Inc., 272 F.R.D. 344, 346–
47 (W.D.N.Y. 2011) (“Because a collective action requires written consent from the opt-in
plaintiffs, it lies within the discretion of a district court to begin its involvement early, at the
point of the initial notice, in order to ensure that the drafting and distribution of the notice is
timely, accurate and informative.”) (internal quotations and citation omitted).
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“At the second stage, the Court will, on a fuller record, decide whether the collective
action ‘may go forward by determining whether the plaintiffs who have opted in are in fact
‘similarly situated’ to the named plaintiffs.’” Laskowski, 2024 WL 4132198, at *2 (quoting
Myers, 624 F.3d at 555); see Mizzero v. Albany Med Health Sys., 2024 WL 4343584, at *3–4
(N.D.N.Y. Sept. 30, 2024) (Suddaby, J.). If the record reveals that they are not, “[a] defendant
can then move to decertify” the collective. Davella v. Ellis Hosp., Inc., 2024 WL 98352, at *1
(N.D.N.Y. Jan. 9, 2024) (D’Agostino, J.); see Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 123
(S.D.N.Y. 2011) (citing Myers, 624 F.3d at 554–55).
“In some cases where parties have completed, or substantially completed, conditional
collective certification discovery, some courts have applied a ‘modest plus’ standard of review.”
Tay v. New York & Presbyterian Hosp., 2024 WL 4286226, at *6 (S.D.N.Y. Sept. 24, 2024)
(internal alterations and citations omitted). “[T]he difference between the original and ‘modest-
plus’ standard[ ] is whether the court considers only the pleadings and attached documents, or
those documents plus the defendant’s opposing materials.” Martinez v. Elegante Servs., Inc.,
2025 WL 3281405, at *3 (S.D.N.Y. Nov. 25, 2025) (quoting Tay, 2024 WL 4286226, at *6).
“However, even under the modest-plus rubric, courts do not weigh the merits of the
underlying claims.” Carollo v. United Cap. Corp., 528 F. Supp. 3d 37, 61 (N.D.N.Y. 2021)
(Hurd, J.) (citing Julian v. MetLife, Inc., 298 F. Supp. 3d 699, 703 (S.D.N.Y. 2018)).
Defendants wish for the Court to apply the “modest plus” standard in its review of the
pending motion. See Dkt. No. 65-7 at 19 (“Where, as here, discovery has been extensive, courts
in this Circuit have emphasized the need for more than generalities or speculation—applying the
heightened, Modest Plus standard.”) (citing Korenblum v. Citigroup, Inc., 195 F. Supp. 3d 475,
481–82 (S.D.N.Y. 2016)).
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“The Court finds it unnecessary to apply the modest-plus standard, as the Second Circuit
has not endorsed such a standard.” Davella, 2023 WL 5367791, at *4. “However, even if the
Court utilized the modest-plus standard, [p]laintiffs meet their burden as the allegations,
testimonies, and evidence discussed [below] support their claims that Defendant engaged in a
practice of not compensating employees for off-the-clock work[.]” Id.
A. Commonality
Defendants argue that the pending motion should be denied, as “[p]laintiffs fail to make
the modest showing required to demonstrate that they were subject to a common policy or
plan[.]” Defs.’ Resp., Dkt. No. 65-7 at 19. However, “[a]t this stage, even minimal information,
such as a pleading or affidavit, is sufficient to allege a common policy affecting similarly
situated employees.” Davella, 2023 WL 5367791, at *5; id. (“[C]ourts have routinely found that
the allegations in the pleadings and the personal observations of one plaintiff’s affidavit are
sufficient to make the modest factual showing necessary to conditionally certify [a] class[.]”)
(quoting Valerio v. RNC Indus., LLC, 314 F.R.D. 61, 66 (E.D.N.Y. 2016)) (internal quotations
and citation omitted).
Defendants believe that plaintiffs’ accounts are too “individualized and inconsistent” to
evidence commonality. See Dkt. No. 65-7 at 16–17 (“Declarants held different job titles with
distinct responsibilities [and] were members of different unions. Their work duties, schedules,
and locations across New York . . . varied[.]”); id. at 14 (“The few specific allegations offered
point not to a unifying company-wide policy, but to scattered, site-specific experiences that vary
by foreman, job site, and job title.”).
But “[p]otential plaintiffs may be deemed similarly situated for the purpose of
preliminary certification under the FLSA despite not occupying the same positions or performing
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the same job functions as long as they are subject to a common unlawful policy or practice.”
Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677, 694 (N.D.N.Y. 2015); see also Morales v.
Rochdale Vill. Inc., 2016 WL 11190525, at *6 (E.D.N.Y. Aug. 15, 2016) (“The fact that
employees held different positions at different location does not prevent conditional
certification.”) (internal quotations and citation omitted); Viriri v. White Plains Hosp. Med. Ctr.,
320 F.R.D. 344, 348 (S.D.N.Y. 2017) (“Any factual variances that may exist between the
plaintiff and the putative class do not defeat conditional class certification, and even if dates of
employment and hours worked are unique to each employee, that does not necessarily create
dissimilarity under the FLSA[.]”) (internal citations and alterations omitted). Furthermore, “at
the conditional certification stage . . . [p]laintiffs need not show that ‘all managers . . . [acted] in
lockstep’ . . . to make a modest factual showing that they were subject to a common policy or
practice.” Amador v. Morgan Stanley & Co. LLC, 2013 WL 494020, at *6 (S.D.N.Y. Feb. 7,
2013) (quoting Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 408–09 (S.D.N.Y. 2012)).
Whether tied to similar sham time-keeping processes or no process at all, plaintiffs allege
they were subjected to the same unlawful payment scheme. Dkt. No. 62-1 ¶ 4 (“Throughout my
employment[,] I was required to fill out a hard copy sign-in sheet to record my hours on a
weekly basis[,] [and] I was specifically directed to only record my scheduled hours rather than
all hours actually spent working.”); Dkt. No. 62-1 ¶ 5 (“I regularly worked before and/or after
my scheduled shift, but was not properly paid for all hours worked.”); Dkt. No. 62-2 ¶ 5
(“During my employment[,] there was no timekeeping system in place. Rather, I was simply
paid a fixed amount per day based on my scheduled hours, irrespective of the hours I actually
worked.”); Dkt. No. 62-3 ¶ 2 (“Throughout my employment, I was required to fill out sign-in
sheets to record my hours. However, I was specifically directed to only record my scheduled
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hours rather than all hours actually spent working.”); Dkt. No. 62-4 ¶ 3 (“I was required to fill
out hard copy sign-in sheets to record my hours. Rather than recording the precise amount of
time I worked, I was directed to only record my scheduled hours on my sign-in sheet as a fixed,
flat number.”); Dkt. No. 62-5 ¶ 2 (“Throughout my employment, Defendants never tracked the
amount of time I actually spent working even though I regularly arrived at work before my
scheduled shift and immediately began performing my job responsibilities and regularly
performed work after my scheduled shift, which my supervisor [] frequently demanded.”); Dkt.
No. 62-5 ¶ 6 (“Despite performing substantial work prior to the start of my scheduled shift, and
after the conclusion of my scheduled shift, I was only paid based on my scheduled hours.”).
Each plaintiff states that Ajay management directed or was complicit in these pay
practices. See Dkt. No. 62-1 ¶ 7 (“My managers and supervisors . . . were well aware that I
worked before and after the start and end of my scheduled shifts but did nothing to ensure I was
paid for this time.”); Dkt. No. 62-2 ¶ 8 (“My supervisors were aware that I was performing work
for which I was not being compensated, but did nothing to ensure I was properly paid for that
time.”); Dkt. No. 62-3 ¶ 6 (“Defendants were well aware that I was performing work prior to the
start of my shift and after the end of my shift, but did nothing to ensure I was compensated for
this time worked.”); Dkt. No. 62-4 ¶ 8 (“Defendants were well aware that I was performing work
prior to the start of my shift and after the end of my shift, but never paid me for this time.”); Dkt.
No. 62-5 ¶ 7 (“Defendants were well aware that I was performing work prior to the start of my
shift, but did nothing to ensure I was compensated for this time worked.”). And plaintiffs assert
reasonable belief that co-workers, several of whom they name specifically, were similarly
subjected to these practices. See, e.g., Dkt. No. 62-1 ¶ 8; Dkt. No. 62-2 ¶ 9; Dkt. No. 62-4 ¶ 9;
Dkt. No. 62-5 ¶ 7.
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To split hairs, defendants emphasize the “decentralized” nature of their “operation.” See
Dkt. No. 65-7 at 17 (“AJAY performs field work throughout the state.”); id. at 21 (“[T]he record
reveals only a patchwork of site-specific allegations[.]”). Even taking defendants’ decentralized
operations at face value, though, the Court does not see how that undercuts plaintiffs’ allegations
of a common illicit pay practice. Besides, as defendants acknowledge, “[c]rews rotate across job
sites[.]” Id. at 17.
Moreover, although defendants deny knowledge of any illicit pay practice, executives
affirm that the company’s overtime policy and time-recording system were the same for hourly
employees regardless of title or site location. See, e.g., Stathopoulos Depo., Dkt. No. 62-11 at 4
(“All non-office employees use hourly timecards on a daily basis.”); O’Shell Depo., Dkt. No. 62-
12 at 21 (“Q: Employees are not directed to record the[ir] specific time in and out[,] [r]ight?
They just record a fixed number of hours each day? A: Correct.”); see also Dkt. No. 62-12 at 22
(“Q: [T[he hours that are submitted daily, they’re always round . . . or whole numbers? A: I
mean, it could be quarter hours. It could be half hours. So, it’s not just whole numbers. No. Q:
But it’s not to the minute. Correct? A: No, it’s not.”).
Defendants also argue that “[e]ach individual . . . received overtime, thereby completely
contradicting Plaintiffs’ argument[.]” Dkt. No. 65-7 at 7; see, e.g., id. at 8 (“[T]he proof of
overtime pay analysis directly undermines and contradicts Plaintiffs’ claim that AJAY employed
a policy or procedure not to pay overtime.”); id. at 15 (“Further, the payroll records contradict
Plaintiffs’ claim of a widespread failure to pay overtime[:] Discovery produced to Plaintiffs
demonstrate that over 550 AJAY employees (approximately 75% of non-exempt employees),
including Louis and all declarants, were paid overtime during their employment.”); id. (“Several
of these declarants received overtime in the same weeks they now allege systemic
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underpayment[.] This alone cuts against any claim of a uniform practice. More fundamentally,
it contradicts Plaintiffs’ central theory: that employees routinely worked a straight, unbroken ‘8’
hour day that did not reflect actual time worked. If that were true, and those ‘8’ hour entries
were systematically underreported, employees would rarely – if ever – cross the 40-hour
threshold to qualify for overtime.”).
Yet “[t]his argument is beside the point.” Amador, 2013 WL 494020, at *8. “The
question for the Court is not whether Defendants paid any overtime to some of the Plaintiffs but
whether they paid all overtime or had a policy of limiting the amount of overtime pay—through
the explicit or implicit actions of their managers and supervisors—that [they] were entitled to
receive.” Id. (citing Hens v. ClientLogic Operating Corp., 2006 WL 2795620, at *5 (W.D.N.Y.
Sept. 26, 2006)).
The mere fact that defendants paid overtime to hourly employees is “not dispositive or
even relevant at the conditional certification stage.” Amador, 2013 WL 494020, at *8. Plaintiffs
have introduced evidence that the Court may credit at this stage indicating a scheme extending to
all of defendants’ hourly employees.
In sum, the Court finds that plaintiffs have sufficiently demonstrated a common de facto
policy or practice. Plaintiffs have likewise satisfied their minimal burden and may disseminate
court-authorized notice to other potentially “similarly situated” members of the collective.
B. Notice
Plaintiffs propose that notice be provided to prospective collective members “employed
by Defendants beginning six years prior to the commencement of this lawsuit.” Dkt. No. 62-14
at 27. Although plaintiffs acknowledge that “[t]he statute of limitations for bringing claims
under the FLSA is two years for non-willful violations and three years for willful violations[,]”
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id. (citing 29 U.S.C. § 255(a)), they contend “it is entirely appropriate to provide for notice
extending to co-workers employed six years prior to the date the lawsuit was commenced
because Plaintiffs’ analogous NYLL claims for failure to pay overtime have a six-year statute of
limitations.” Id.
As the Court has not yet considered Rule 23 certification of plaintiffs’ NYLL claims, it
will confine notice to the three-year period. See, e.g., Cooke, 722 F. Supp. 3d at 142; Munoz v.
Grp. US Mgmt. LLC, 348 F.R.D. 192, 207 (S.D.N.Y. 2025); Franze v. Bimbo Foods Bakeries
Distrib., LLC, 2019 WL 1417125 at *4 (S.D.N.Y. Mar. 29, 2019); Alvarez v. IBM Rests. Inc.,
839 F. Supp. 2d 580, 586 (E.D.N.Y. 2012) (noting “growing trend” in the Eastern District had
been to limit notice to three years, especially when there were not a significant number of
potential plaintiffs).
Defendants request that defense counsel’s contact information be added to the notice.
See Dkt No. 65-7 at 22. “The Court agrees with other courts in this Circuit, which have
generally concluded that the contact information of defendants’ counsel is appropriate for
inclusion in a notice of collective action.” Cuaya v. VI Dev. Grp., LLC, 2020 WL 5494371, at
*10 (S.D.N.Y. Sept. 10, 2020) (collecting cases) (internal alterations omitted). The notice of
collective certification should include contact information for both plaintiffs’ and defendants’
counsel.
In turn, plaintiffs ask the Court to compel defendants to “furnish the names, last known
physical addresses, last known email addresses and last known telephone numbers of those
individuals in the collective action[.]” Dkt. No. 62-14 at 7. Defendants oppose, though provide
no caselaw supporting their opposition. See Dkt. No. 65-7 at 24–25. The Court finds the request
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reasonable, see Sharma v. Burberry Ltd., 52 F. Supp. 3d 443, 465 (E.D.N.Y. 2014) (collecting
cases), and will compel defendants to provide the requested information.
V. 	CONCLUSION
Therefore, it is
ORDERED that
1. Plaintiffs’ motion (Dkt. No. 62) is GRANTED IN PART and DENIED IN PART;
2. The Court CONDITIONALLY APPROVES the following putative FLSA collective:
All current and former non-exempt hourly employees who were employed by
Defendants Ajay Glass & Mirror Co., Jim Stathopoulos, Steve Stathopoulos, and
Dean Stathopoulos (collectively, “Defendants”) from April 2, 2021 through the
date of trial.
3. Plaintiffs are ORDERED to submit a Proposed Publication Order, Consent to Join
Form, and Notice of Lawsuit that comply with the above decision for the Court’s approval within
fourteen (14) days.
The Clerk of the Court is directed to terminate the pending motions.
SO ORDERED.
Dated: February 20, 2026
Utica, New York
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