Eastern District of New York Approves FLSA Notice That Includes Plaintiff’s Law Firm’s Website

Kemper v. Westbury Operating Corp., 12-cv-0895 (E.D.N.Y. Oct. 18, 2012): The plaintiff, a former housekeeper, alleged that the defendant failed to pay overtime in violation of the Fair Labor Standards Act (FLSA) and New York Labor Law. The plaintiff sought conditional authorization to proceed as a collective action under Section 216(b) of the FLSA and approval to distribute a notice and consent form. The court granted the plaintiff’s motion, finding that she met the modest threshold of establishing a similarly situated class of potential plaintiffs. The court then rejected the defendant’s argument that the references to the plaintiff’s New York Labor Law claims in the proposed notice to the class were inappropriate. The court explained that potential plaintiffs with timely federal claims may want to consider the state law in deciding whether to opt in to the collective action or pursue their claims in a different forum. The defendant also argued that references to the website of the plaintiff’s counsel were inappropriate because the website contained attorney advertisements and this information did not add any value to the notice. The court rejected these arguments, and held that the website contained information falling within the boundaries of permissible attorney advertisements, and in any event, the information was readily available to any potential plaintiff who researched the law firm on an internet search engine.