Summary
granting motion for conditional certification on basis of two affidavits while explicitly refusing to consider other documentary evidence
Summary of this case from Beauperthuy v. 24 Hour Fitness USA, Inc.Opinion
Civil No. 00-1627-KI
August 24, 2001
A. E. Bud Bailey, James Dana Pinney, Bailey, Pinney Associates, LLC, Tualatin, Oregon, for Plaintiff.
John F. Neupert, J. Michael Porter, Miller Nash LLP, Portland, Oregon, for Defendant.
OPINION AND ORDER
Plaintiff, Michael Ballaris, is a former employee of the defendant, Wacker Siltronic Corporation ("Wacker"). Plaintiff brings this action alleging that Wacker had a policy and practice of denying its workers required overtime wages, requiring its workers to conduct preparatory and concluding activities while "off the clock," and altering employee time records in order to reduce its obligation to pay overtime wages. Plaintiff alleges that he and other hourly workers at Wacker were not paid for their overtime work and that Wacker's failure to pay overtime wages constitutes a willful violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). Plaintiff further alleges that Wacker's failure to pay overtime wages violates the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. ("ERISA"), and Oregon wage laws, including O.R.S. 652.020 and 652.140.
Before the court is plaintiff's Motion to Allow Notice to All Employees of Their Opt-In Rights (#26). The court understands this motion to be one seeking approval of notice to similarly situated persons of their right to "opt-in" to a collective action as to plaintiff's claims under the FLSA, pursuant to 29 U.S.C. § 216(b). For the reasons set forth below, and subject to the restrictions set forth below, I grant the motion for approval of notice to similarly situated persons. In so doing, I certify a collective action under the FLSA, but only for the purposes of notice and discovery.
DISCUSSION
The FLSA allows for a type of class action, known as a "collective action," for employees who are "similarly situated" to the plaintiff(s) and who file a consent in writing with the court (i.e., "opt in" to the case). 29 U.S.C. § 216(b). If employees do not opt in by filing a written consent, they are not bound by the outcome of the collective action and may bring a subsequent private action. EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1508 n. 11 (9th Cir.), cert. denied, 111 S.Ct. 55 (1990).
The statute provides in pertinent part:
An action . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which the action is brought.
This district and a number of other courts have held that the full extent of procedural restrictions that apply to class actions, pursuant to Fed.R.Civ.P. 23, do not apply to certification of a class under Section 216(b) of FLSA. See Daggett v. Blind Enterprises of Oregon, et al., No. 95-421-ST, p. 9 (D.Or. April 18, 1996) ("I am persuaded that FRCP 23 does not apply to a § 216(b) class action."); Jackson v. New York Tel. Co., 163 F.R.D. 429, 432 (S.D.N.Y. 1995) (holding that Fed.R.Civ.P. 23 should not be applied at the preliminary notice stage of an ADEA class action brought under Section 216(b) of FLSA).
The procedural protections of Fed.R.Civ.P. 23 are generally not necessary for a § 216(b) collective action because of that statute's opt-in requirement. As Judge Stewart explained in Daggett:
A plaintiff who opts in presumably has decided that the benefits of joining the class outweigh any benefits of bringing an individual action . . . [T]here is no need for the court to determine whether a class action is the most efficient method to proceed because each individual plaintiff has already concluded that a sufficiently common issue of fact or law exists and that he or she will be adequately represented. In addition, the due process protections of FRCP 23 are not as crucial when absent class members are not bound by the judgment.
Daggett at 10.
Along these lines, the "similarly situated" standard under Section 216(b) is less stringent than the requirement under Fed.R.Civ.P. 23(b)(3) that common questions of law or fact predominate over questions affecting only individual members. Church v. Consolidated Freightways, Inc., 137 F.R.D. 294, 306 (N.D.Cal. 1991); see also Wertheim v. State of Arizona, 1993 WL 603552, *1 (D.Ariz. Sept. 30, 1993) ("The requisite showing of similarity of claims under the FLSA is considerably less stringent than the requisite showing under Rule 23 of the Federal Rules of Civil Procedure"). In fact, the Eleventh Circuit has held that the similarly situated requirement is more flexible than the requirements of Fed.R.Civ.P. 20 (joinder) and 42 (severance). Grayson v. Kmart Corp., 79 F.3d 1086, 1096 (11th Cir.), cert. denied, 117 S.Ct. 435 (1996). As such, the claims and positions of employees need not be identical in order to meet the lower standards of § 216(b). Id.
In Thiebes v. Wal-Mart Stores, Inc., 1999 U.S. Dist LEXIS 18649, *6-7 (D.OR 2001), this court outlined the standard that applies in determining if a collective action is appropriate:
"[F]or prospective plaintiffs to be similarly situated, there must be a factual nexus which binds them together as victims of an alleged policy or practice." Wyatt v. Pride Offshore, Inc., 1996 WL 509654, *2 (E.D.La. Sept. 6, 1996); see also Realite v. Ark Restaurants Corp., 7 F. Supp.2d 303, 306 (S.D.N Y 1998) (plaintiffs can show that potential class members are similarly situated "by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs were victims of a common policy or plan that violated the law."); Wertheim, supra ("All that need be shown by the plaintiff is that some identifiable factual or legal nexus binds together the various claims of the class members in a way that hearing the claims together promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA").
In this case, plaintiff alleges that Wacker's policy requiring workers to change into and out of their plant uniform and clean room suit while off the clock, as well as Wacker's practice of adjusting employee time sheets so as to limit overtime hours, constituted a specific scheme that resulted in consistent under-compensation of all Wacker employees working in clean rooms.
The affidavits submitted by the plaintiff, together with the allegations of the Amended Complaint, are sufficiently specific regarding how the alleged policies and practices are manifested and how they generally affect those employees working in Wacker's clean rooms. See Bonilla v. Las Vegas Cigar Company, 61 F. Supp.2d 1129, 1139 n. 6 (D.Nev. 1999) (noting that plaintiffs bear the burden of showing that they are similarly situated, but that it "is a lenient burden for plaintiffs to meet, and can be supported by affidavits").
Plaintiff Ballaris and Julie Duncan, another former Wacker employee, both assert in their affidavits that Wacker's workplace policies necessitated their working off the clock. In particular, they allege that Wacker did not compensate them for the time required to change into and out of their plant uniforms and clean suits, and that Wacker required them to be "on the floor" for debriefing before the start of their scheduled shift. Mr. Ballaris and Ms. Duncan further allege that on those instances where Wacker employees did clock in prior to the start of the shift, Wacker supervisors altered the time cards.
I acknowledge that employees in the clean room in Fab 1 did not have to change into the plant uniform while some or all of the employees in the clean rooms of Fab 2 were required to make that change. I also realize that there is a discrepancy on whether workers in some of the clean rooms punch in before or after changing into their bunny suits. I think the overriding factor at this stage of the litigation is that all of the employees in the proposed class must change into and out of bunny suits. Classes can be adjusted after discovery if necessary. Consequently, I approve the class as:
all hourly employees of the defendant having been assigned to work in clean rooms of Wacker Siltronic corporation in Portland, Oregon, from November 27, 1997 to November 27, 2000.
In addition to the employee affidavits, the plaintiffs have submitted documents detailing the findings of the Oregon Bureau of Labor and Industries (Affidavit of A.E. Bud Bailey In Support of Motion to Allow Notice to Present and Former Employees of Wacker Siltronic Corporation, Exhibits B-E). Given defendant's concern that consideration of these documents could result in unfair prejudice, and because the affidavits of Mr. Ballaris and Ms. Duncan alone are sufficient to certify the collective action, I will not rely on the BOLI documents at this time.
I find that plaintiff's burden has been met and thereby grant the motion to allow notice to similarly situated persons. I emphasize, however, that I am certifying the collective action only for notice and discovery purposes. I am not holding at this time that all members of the proposed class who will be sent notices are, in fact, similarly situated to plaintiffs. Far too little discovery has been taken for me to make such a determination now. Furthermore, should discovery reveal that plaintiffs are not similarly situated to some or all of the persons who may choose to opt in, I may later decertify the class or divide the class into subgroups, if appropriate. Reservation of this right to subdivide or decertify members of the class should alleviate defendant's concern, expressed in its response to the plaintiff's motion, that the proposed notice targets too large a class. Plaintiff's reply suggests a notice that addresses some of the defendant's concerns. I will allow a revised notice to be sent after September 4, 2001. This gives the parties time to reach a final agreement on the form of the notice. If the parties are unable to reach agreement, I am available to assist via a telephone conference.
CONCLUSION
Subject to the above qualifications, plaintiffs motion to allow notice to all employees of their opt-in rights (#26) is granted.
IT IS SO ORDERED.