Qi Zhang v. Bally Produce


New York Law Journal


Magistrate Judge Joan Azrack

Plaintiff, a vegetable loader, loads and unloads trucks under its driver's supervision and direction. He was classified as exempt and not paid overtime. His coworkers did not opt-in to his putative collective action under the Fair Labor Standards Act seeking unpaid overtime. Noting that plaintiff's job implicated the FLSA's "Motor Carrier Exception" the court—informed by the Second Circuit's ruling in Myers v. Hertz Corp.—denied plaintiff conditional certification for failing to meet his "modest" burden of showing the existence of similarly situated employees. Because numerous points within his papers confined the putative class to vegetable loaders, the court limited its analysis to whether plaintiff himself similarly situated to other vegetable loaders. Plaintiff did not identify what positions other "coworkers" allegedly not paid overtime held or what their duties were. Nor did he submit an amended affidavit correcting such deficiencies. The court refused to certify as collective action plaintiff's unwillingness or inability to offer evidence that other vegetable loaders had similar duties and responsibilities. Plaintiff offered no evidence specifically indicating that other vegetable loaders exist or that other vegetable loaders were classified as exempt.

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