Opinion
CIVIL ACTION NO. 1:21-cv-223-AT
2022-01-24
Emilio CAMPO, individually and on behalf of those similarly situated, Plaintiff, v. GRANITE SERVICES INTERNATIONAL, INC. ; and Fieldcore Services Solutions, LLC, Defendants.
Andrew W. Dunlap, Pro Hac Vice, Michael A. Josephson, Pro Hac Vice, Richard M. Schreiber, Pro Hac Vice, Josephson Dunlap Law Firm, Houston, TX, Charles Ryan Morgan, Morgan & Morgan, P.A., Orlando, FL, Andrew R. Frisch, Morgan & Morgan, P.A., Plantation, FL, Jeremy Stephens, Morgan & Morgan, PA, Atlanta, GA, for Plaintiff. Brett Christopher Bartlett, Kevin Michael Young, Lennon Haas, Zheyao Li, Seyfarth Shaw, LLP, Atlanta, GA, for Defendants.
Andrew W. Dunlap, Pro Hac Vice, Michael A. Josephson, Pro Hac Vice, Richard M. Schreiber, Pro Hac Vice, Josephson Dunlap Law Firm, Houston, TX, Charles Ryan Morgan, Morgan & Morgan, P.A., Orlando, FL, Andrew R. Frisch, Morgan & Morgan, P.A., Plantation, FL, Jeremy Stephens, Morgan & Morgan, PA, Atlanta, GA, for Plaintiff.
Brett Christopher Bartlett, Kevin Michael Young, Lennon Haas, Zheyao Li, Seyfarth Shaw, LLP, Atlanta, GA, for Defendants.
ORDER
AMY TOTENBERG, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Plaintiff's Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members [Doc. 36]. For the reasons set forth below, Plaintiff's motion is GRANTED IN PART .
I. Background
Defendants Granite Services International, Inc. and FieldCore Services Solutions, LLC provide field, technical, and support services for the power generation and oil and gas industries. (Am. Compl., Doc. 8 ¶ 33.) Plaintiff Emilio Campo alleges that he worked for Defendants as an Environment, Health, and Safety ("EHS") Advisor from approximately August 2019 to February 2020. (Id. ¶ 13.) In the Amended Complaint, Campo alleges that Defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. , by paying him at the same hourly rate for all hours that he worked, including "straight time" pay for overtime hours. (Id. ¶¶ 45–46.) Defendants moved to dismiss the Amended Complaint on March 11, 2021, (Doc. 14), and the Court denied that motion on January 21, 2022, (Doc. 51).
While Defendants’ motion to dismiss was still pending, Campo filed a motion to conditionally certify his FLSA claim as a collective action. See (Pl.’s Mot., Doc. 36.) In that motion, Campo seeks to certify a collective action consisting of "[a]ll employees of Granite Services and FieldCore in the past three years who were paid ‘straight time for overtime.’ " (Id. at 1.) Campo seeks to exclude from that definition all EHS employees who worked for Defendants in Texas; those employees’ claims are already subject to a collective action in a related case, Greinstein v. FieldCore Services Solutions, LLC , No. 2:18-cv-208 (N.D. Tex.). (Id. at 1 n.1) Campo also seeks an order directing Defendants to produce, within 14 days, a list of the potential collective members’ names and last known addresses, phone numbers, and e-mail addresses for purposes of providing notice. (Id. at 2.) In addition, Campo seeks permission to send notice to the potential collective members in the form attached to his motion as Exhibit A, and to send that notice to the potential collective members by first-class mail, e-mail, and text message. (Id. ) Finally, Campo seeks an order providing the potential collective members with 60 days from the date the notices are initially mailed to opt-in to the collective action by filing the consent form attached to his motion as Exhibit B. (Id. )
Defendants filed an opposition to Campo's motion on August 11, 2021. (Defs.’ Opp'n, Doc. 43.) In their motion, Defendants challenge both Campo's request for conditional certification and the manner in which he seeks to provide notice to the potential collective members.
II. Analysis
A. Legal Framework Governing Collective Action Certification Under the FLSA
Section 216(b) of the FLSA authorizes employees to bring a collective action against employers accused of violating the FLSA as follows:
An action ... may be maintained against any employer ... 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 with the court in which such action is brought.
29 U.S.C. § 216(b). This Court has the discretion to authorize the sending of notice to potential members in a collective action. Hoffmann–La Roche Inc. v. Sperling , 493 U.S. 165, 169–70, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ; Hipp v. Liberty Nat'l Life Ins. Co. , 252 F.3d 1208, 1219 (11th Cir. 2001). A collective action is particularly appropriate when it permits the "efficient resolution in one proceeding of common issues of law and fact arising from the same alleged ... activity." Hoffmann–La Roche , 493 U.S. at 170, 110 S.Ct. 482. "The benefits of a collective action ‘depend on employees receiving accurate and timely notice ... so that they can make informed decisions about whether to participate.’ " Morgan v. Family Dollar Stores, Inc. , 551 F.3d 1233, 1259–60 (11th Cir. 2008).
Participants in a putative collective action must affirmatively "opt-in" to the suit. 29 U.S.C. § 216(b). Thus, the decision to certify a collective action, on its own, does not create a collective of plaintiffs; rather the "existence of a collective action under § 216(b) ... depend[s] on the active participation of other plaintiffs." Morgan v. Family Dollar Stores, Inc. , 551 F.3d 1233, 1259–60 (11th Cir. 2008).
The Eleventh Circuit applies a two-stage process to FLSA collective actions. See Hipp , 252 F.3d at 1218 ; Morgan , 551 F.3d at 1260–61. The first stage in determining whether a collective action should be conditionally certified is the notice stage (also referred to as the conditional certification stage) at which time the court determines whether other similarly situated employees should be notified and given the opportunity to opt-into the case as plaintiffs. Morgan , 551 F.3d at 1261. The second stage of the certification process is "typically precipitated by a motion for ‘decertification’ by the defendant usually filed after discovery is largely complete and the matter is ready for trial." Hipp , 252 F.3d at 1218 ; see also Anderson v. Cagle's, Inc. , 488 F.3d 945, 953 (11th Cir. 2007). At the conclusion of discovery when a matter is ready for trial, the district court uses the factual information gathered during discovery to determine whether the plaintiffs are actually similarly situated, and if they are not the court decertifies the collective. Anderson , 488 F.3d at 953.
During the second stage, the standard "is less lenient, and the plaintiff bears a heavier burden." Morgan , 551 F.3d at 1261. The district court "has a much thicker record than it had at the notice stage, and can therefore make a more informed factual determination of similarity." Id.
In the first stage of the certification process, the district court makes a decision based on limited information — such as the pleadings in the complaint and related affidavits — regarding whether notice of the action should be given to potential collective members. Anderson , 488 F.3d at 952–53 ; Hipp , 252 F.3d at 1218. A plaintiff has the burden of showing a "reasonable basis" for his claim that there are other similarly situated employees. Morgan , 551 F.3d at 1260 ; Grayson v. K-Mart Corp. , 79 F.3d 1086, 1096 (11th Cir. 1996). The burden on the plaintiff at this initial stage, however, is not a heavy one. At this stage, because the court has minimal evidence the "determination is made using a fairly lenient standard, and typically results in ‘conditional certification’ of a representative class." Hipp , 252 F.3d at 1218 ; see Morgan , 551 F.3d at 1260 (describing the standard for determining similarity, at this initial stage, as "not particularly stringent," "fairly lenient," "flexib[le]," "not heavy," and "less stringent than that for joinder under Rule 20(a) or for separate trials under 42(b)").
At the second stage, in order to overcome the defendant's evidence opposing certification, plaintiffs must rely on more than just allegations and affidavits. Id.
Courts in this district routinely grant conditional certification under the FLSA applying this fairly lenient standard. See Reece v. United Home Care of N. Atlanta, Inc. , 1:12-cv-2070, 2013 WL 895088, at *3–4 (N.D. Ga. Mar. 8, 2013) (stating that plaintiff had submitted sufficient evidence of similarity to "satisfy the lenient standard for conditional certification," explaining that at the notice stage, "the Court considers whether Plaintiff is similarly situated to the putative class in terms of job position and pay policies" and that at this stage, "the Court need not engage in credibility determinations"); Bradford v. CVS Pharmacy, Inc. , No. 1:12-cv-1159, 2013 WL 425060, at *5 (N.D. Ga. Feb. 4, 2013) (explaining that "Plaintiff meets his fairly lenient burden" in part because "it is not appropriate for the Court to conduct individualized inquiries at the conditional certification stage, or consider the possibility of having to make individualized inquiries in the future when ruling at this stage"); Lawson v. Bell S. Telecomm., Inc. , No. 1:09-cv-3528, 2011 WL 3608462, at *7 (N.D. Ga. Aug. 16, 2011) (granting the plaintiffs’ motion for conditional certification and issuance of notice, stating that a "plaintiff's burden is ‘not heavy’ and rejecting the defendant's arguments regarding geographic diversity and varying duties stating, "[d]ifferences in individual factual and employment settings are generally a consideration for the second stage"); McCray v. Cellco P'ship , No. 1:10-cv-2821, 2011 WL 2893061 (N.D. Ga. Apr. 8, 2011) (rejecting defendant's reliance on non-binding district court decisions and arguments in opposition to certification in recognition that the court's analysis is more stringent, and the plaintiff's burden is heavier at the second decertification stage); Riddle v. Suntrust Bank , No. 1:08-cv-1411, 2009 WL 3148768, at *3 (N.D. Ga. Sept. 29, 2009) (rejecting defendant's argument that putative class members were not similarly situated because some of them have "different higher level responsibilities beyond the core technical services [all putative class members] provide"); Scott v. Heartland Home Fin., Inc. , No. 1:05-cv-2812, 2006 WL 1209813, at *2 (N.D. Ga. May 3, 2006) (declining to resolve factual issues or make credibility determinations at the notice stage); Kreher v. City of Atlanta, Ga. , No. 1:04-cv-2651, 2006 WL 739572, at *4 (N.D. Ga. Mar. 20, 2006) ("[A] court adjudicating a motion to authorize a collective action need not evaluate the merits of plaintiffs’ claims in order to determine whether a similarly situated group exists."); Cash v. Gwinnett Sprinkler Co. , No. 1:08-cv-2858, 2008 WL 5225874 (N.D. Ga. Dec. 12, 2008) (noting the allegation of a common practice by the defendant as the basis for granting certification).
Before granting conditional certification, the Court should determine: (1) whether employees sought to be included in the putative class are similarly situated with respect to their job requirements and pay provisions; and (2) whether there are other employees who wish to opt-in to the action. Dybach v. State of Fla. Dep't of Corr. , 942 F.2d 1562, 1567–68 (11th Cir. 1991) (concluding that the "broad remedial purpose" of the FLSA is best served if the district court is deemed to have the power to give such notice to other potential members of the plaintiff class to "opt-in" if they so desire and that "the district court should satisfy itself that there are other employees of the defendant employer who desire to ‘opt-in’ and who are ‘similarly situated’ with respect to their job requirements and with regard to their pay provisions"). Here, the plaintiff offers declarations from himself and four other employees who wish to opt-in to a potential collective action. Thus, the Court need only determine whether the named plaintiff is similarly situated to these potential collective members based on a lenient proof standard and whether there is a likelihood of other potential plaintiffs being interested in opting-in, if given notice. See Riddle v. Suntrust Bank , No. 1:08-cv-1411, 2009 WL 3148768, at *3 (N.D. Ga. Sept. 29, 2009) (finding that because actual notice has not been sent to putative collective members, the existence of only three opt-in plaintiffs sufficiently demonstrated an interest by other employees to opt-in to the suit and that the "appropriate time to address issues of individual differences between putative class members and whether any particular individual is exempt is after the completion of discovery and during the second stage of the certification determination."); Reece v. United Home Care of N. Atlanta, Inc. , 1:12-cv-2070, 2013 WL 895088, at *4 (N.D. Ga. Mar. 8, 2013) (certifying a collective at the notice stage when only two opt-in plaintiffs had joined the suit).
The focus of the court's inquiry at this stage is not on whether there has been an actual violation of law, but on whether the proposed plaintiffs are similarly situated with respect to their allegations that the law has been violated. Kreher v. City of Atlanta, Ga. , No. 1:04-cv-2651, 2006 WL 739572, at *4 (N.D. Ga. Mar. 20, 2006) (stating that plaintiffs are not required to submit evidence of a highly particularized nature and finding that "[a]lthough lacking in some detail, Plaintiffs’ declarations establish the existence of other employees employed in similar positions and subjected to similar policies"). Applying the fairly lenient standard of the notice/conditional certification stage, plaintiffs are not required to show that they hold identical positions. Hipp , 252 F.3d at 1217 ; Grayson , 79 F.3d at 1096. Rather, for purposes of conditional certification plaintiffs must show either (1) that their job positions and duties are similar to those positions held by the putative collective members, see Hipp , 252 F.3d at 1217 ; Grayson , 79 F.3d at 1096, or (2) that plaintiffs and the putative collective members were all subject to the same unified policy, plan, or scheme that forms the basis of the alleged FLSA violation, see, e.g., Morgan , 551 F.3d at 1262–64 (upholding district court's denial of employer's motion to decertify and finding that "there is nothing unfair about litigating a single corporate decision in a single collective action"); Scott v. Heartland Home Fin., Inc. , No. 1:05-cv-2812, 2006 WL 1209813, at *2 (N.D. Ga. May 3, 2006) (holding that the notice stage requires only "substantial allegations that the putative class members were together the victims of a single decision, policy, or plan"); cf. Lindberg v. UHS of Lakeside, LLC , 761 F. Supp. 2d 752, 758 (W.D. Tenn. 2011) ("[I]t is clear that plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.... Plaintiffs may also meet the similarly situated requirement if they demonstrate, at a minimum, that ‘their claims [are] unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct." (quoting O'Brien v. Ed Donnelly Enters. , 575 F.3d 567, 584 (6th Cir. 2009) )).
B. Application
1. Whether the Potential Collective Members Are Similarly Situated to Plaintiff
Applying these principles to the matter at hand, the Court first addresses whether Campo and the proposed collective members are similarly situated.
In his motion, Campo argues that the putative collective members are similarly situated because they all performed field, technical, and support services for Defendants in the power generation and oil and gas industries, and because they all received straight-time pay for overtime work. As evidence, Campo principally relies on declarations submitted on behalf of himself and several potential collective members.
In his own declaration, Campo claims — as he did in the Amended Complaint — that he performed work for Defendants as an EHS employee from approximately August 2019 to February 2020. (Pl.’s Ex. D, Doc. 37-5 ¶ 3.) He says that he worked for Defendants in States such as Minnesota, Wyoming, and Iowa. (Id. ) Additionally, he claims that when he was hired he was told he "would be paid on an hourly basis." (Id. ¶ 4.) He explains, "The first 40 hours were paid at $48 per hour (a $1,920 per week ‘salary’) and every additional hour was also paid $48 per hour." (Id. ) He claims that consistent with that policy he "was paid at an hourly rate for every approved hour worked at $48 per hour." (Id. ) Campo also claims he has personal knowledge that other employees "were paid straight time for overtime regardless of job position, job location, or any other individualized factor." (Id. ¶ 9.)
Several other employees submitted similar declarations in support of Campo's motion. One employee, Joseph Butcher, stated in his declaration that he had worked for Defendants as a Lead Technical Advisor since May 2017. (Pl.’s Ex. E, Doc. 37-6 ¶ 3.) Butcher stated that he performed work for Defendants in Iowa, Pennsylvania, Missouri, Nebraska, Michigan, Texas, South Carolina, Florida, and New York. (Id. ) Butcher claimed that he was paid at a rate of $50.73 per hour for each hour that he worked. (Id. ¶ 4.) A second employee, Kenneth Millus, stated that he worked for Defendants as a Commissioning Tech and Commissioning Lead between February 2016 and September 2019. (Pl.’s Ex. F, Doc. 37-7 ¶ 3.) Millus claimed that he primarily worked in Iowa. (Id. ) Millus claimed that he was paid at a rate of $38 per hour for each hour that he worked in August 2018 and $39.90 per hour in August 2019. (Id. ¶ 4.) A third employee, Robert Mackenroth, stated that he worked for Defendants as a Site Manager from about 2012 until 2020. (Pl.’s Ex. G, Doc. 37-8 ¶ 3.) Mackenroth claimed that he worked for Defendants primarily in California and Arizona. (Id. ) Mackenroth claimed that he was paid at a rate of $95 per hour for each hour that he worked. (Id. ¶ 4.) Finally, a fourth employee, Colton Melton, stated that he worked for Defendants as an Installation Lead from about September 2017 until September 2019. (Pl.’s Ex. H, Doc. 37-9 ¶ 3.) Melton claimed that we worked for Defendants primarily in Nebraska, North Dakota, and Texas. (Id. ) Melton claimed that during that time he was paid at a rate of $35 per hour for each hour that he worked. (Id. ¶ 4.)
Like Campo, each of these employees claimed to have personal knowledge that other employees have been paid straight time for overtime as well. See (Pl.’s Ex. E, Doc. 37-6 ¶ 9); (Pl.’s Ex. F, Doc. 37-7 ¶ 9); (Pl.’s Ex. G, Doc. 37-8 ¶ 9); (Pl.’s Ex. H, Doc. 37-9 ¶ 9).
Campo contends these declarations show that he and the additional declarants "performed the same type of work providing technical assistance to Defendants’ power plant customers in the energy industry." (Pl.’s Mem. Doc. 37-1 at 16). He adds that each employee was supposedly paid a salary but that the purported salary "was simply their hourly rate multiplied by 40 hours." (Id. at 7.) In reality, he argues, each employee was "only paid by the hour for all hours worked, including straight time for overtime hours worked." (Id. at 16.) Thus, he concludes that each employee shared a "common employment experience" that renders them similarly situated for purposes of conditional certification under the lenient standard applied in this Circuit. (Id. at 8, 33.)
In their opposition, Defendants argue that the lenient standard that ordinarily applies to conditional certification should not apply here because Defendants have already received overlapping discovery in related cases. And they contend that the Court should decline to certify the proposed collective because it involves "a diverse nationwide collective of individuals who performed different jobs in different places in different ways, all while being well compensated under different pay plans." (Defs.’ Opp'n, Doc. 43 at 35.) They note that the collective action that was ultimately certified in Greinstein was considerably narrower than the collective that Campo seeks to certify here, which unlike Campo's proposed collective was "limited to a single state (Texas), a single job (EHS Professional/Specialist), and a single compensation plan." (Id. at 3.)
Defendants first point out that Campo's proposed collective "includes at least four different job titles": EHS Professionals, Installation Leads, Commissioning Leads, and Technical Field Advisors ("TFAs"). (Id. at 4) (emphasis added). They argue that each of these positions entails distinct job responsibilities and duties. As an example, Defendants state that EHS professionals like Campo "ensure safety and regulatory compliance of operations, machinery, and employees on projects of all sizes at plants and facilities across the country." (Id. at 6.) By comparison, Defendants represent that TFAs direct installation and maintenance projects, (id. at 8), Installation Leads oversee installation projects in the wind segment and "are responsible for site operations through mechanical completion of the installation project," (id. at 9), and Commission Leads "are responsible for overseeing commissioning activities on wind turbines," (id. at 10). Defendants contend that these dissimilarities among these employees’ various job responsibilities should preclude a finding that the proposed collective members are similarly situated.
To explain the nuances of each of these different roles, Defendants included deposition testimony from a related case, Trottier v. FieldCore Services Solutions, LLC , No. 2:20-cv-188 (N.D. Tex.), and a declaration from Helen Harmon, who is an HR Manager for FieldCore who focuses on the wind segment. See (Defs.’ Ex. 2, Doc. 43-2); (Defs.’ Ex. 3, Doc. 43-3); (Defs.’ Ex. 4, Doc. 43-4).
Defendants next argue that the employees covered by the collective definition are dissimilarly situated because they were "paid under four distinct pay plans." (Id. at 5.) Defendants aver that Campo was paid under what they refer to as the "Retainer B" plan. They explain that this plan "provides a predetermined salary each week in which an employee performs any work," but that employees under this plan do not receive a salary in weeks in which they perform no work. (Id. at 11.) Some employees are also paid under the "Retainer V1" plan. Like employees paid under the Retainer B plan, employees paid under the Retainer V1 plan receive "a predetermined salary each week"; however, unlike employees paid under the Retainer B plan, "employees under this plan receive their salary even in weeks that they don't work at all." (Id. at 12.) A third type of plan is the "Retainer" plan. Defendants state that under the Retainer plan "employees receive a weekly salary, regardless of the number of hours worked, even if they do not work during an entire workweek" plus "extra pay if they work more than 40 hours in a week." (Id. at 13.) Finally, employees under the "Contingency" plan only work "on occasion" and "receive a weekly salary for any week during which they perform any work." (Id. ) Defendants argue that Campo's refusal to limit the collective to one pay plan "introduces uncertainty and, possibly, variation" into the collective, (id. at 29), and urge the Court, "[i]f the Court were to conditionally certify a collective, it should be expressly limited to the Retainer B plan only," (id. at 30).
To describe each of the four plans, Defendants included various discovery materials from Trottier , as well as a declaration from FieldCore's Chief Diversity Officer and Region HR Leader for North America, Bella Abel, (Defs.’ Ex. 8, Doc. 43-8).
Last, Defendants emphasize that Campo's attorneys have already filed numerous other cases alleging "essentially the same legal claim." (Id. at 3.) Defendants specifically point to six cases: two in the United States District Court for the Northern District of Texas, one in this Court, one in the United States District Court for the Northern District of New York, one in the United States District Court for the Middle District of Pennsylvania, and one in state court in Oregon. Defendants observe that some of these cases involve FLSA claims while others involve claims under state wage and hour laws, and in each case the plaintiffs seek to bring their claims as a collective action. Defendants point out that, as a practical matter, many of the same employees covered by the proposed collectives in those other matters would also be covered by the proposed collective in this matter and "would be eligible to receive notice if this Court accepts Campo's proposed collective definition." (Id. at 15 & n.7). The apparent upshot of Defendants’ argument is that if the Court were to certify Compo's proposed collective action it would result in the filing of improperly overlapping claims.
See Greinstein v. FieldCore Services Solutions, LLC , No. 2:18-cv-208 (N.D. Tex.); Trottier v. FieldCore Services Solutions, LLC , No. 2:20-cv-188 (N.D. Tex.); Rodriguez v. Granite Servs. Int'l, Inc. , No. 1:21-cv-2689 (N.D. Ga.); Lawrence v. Granite Servs. Int'l, Inc. , No. 5:21-cv-636 (N.D.N.Y.); Huffman v. Granite Servs. Int'l, Inc. , No. 4:21-cv-1184 (M.D. Pa.); Miller v. Granite Servs. Int'l, Inc. , No. 21-cv-14774 (Or. Cir. Ct.).
Beginning with Defendant's argument that a heightened standard should apply for conditional certification, the Court notes that while there has been discovery in other related cases, there has not yet been any formal discovery in this case. Although Defendants cite one case, Mason v. Atlanta Beverage Co. , No. 1:17-cv-2293, 2018 WL 3655374 (N.D. Ga. Aug. 2, 2018) for the proposition that a heightened standard should apply when the plaintiffs have already received some discovery, the Court finds Mason distinguishable. In Mason , discovery had been ongoing for four months, which led the court to conclude that it was "in a different procedural posture" from other cases that had applied the more lenient standard. Id. at *2. But because discovery has not yet commenced here, this case is "in a different procedural posture" from Mason. As such, the Court will not depart from the lenient standard that ordinarily applies to conditional certification.
Next, although the Court takes Defendants’ point that the collective definition covers employees in many different roles, the Eleventh Circuit has explained that at the conditional certification stage "courts determine whether employees are similarly situated -- not whether their positions are identical." Morgan , 551 F.3d at 1260. The plaintiff only has to show that he is "similarly situated to the putative class members with respect to the nature of the alleged violations. " Jewell v. Aaron's, Inc. , No. 1:12-cv-563, 2012 WL 2477039, at *5 (N.D. Ga. June 28, 2012) (emphasis added). Accordingly, "variations in specific duties, job locations, working hours, or the availability of various defenses are examples of factual issues that are not considered at this stage" Jackson v. Fed. Nat'l Mortg. Ass'n , 181 F. Supp. 3d 1044, 1061 (N.D. Ga. 2016) (quoting Scott , 2006 WL 1209813, at *3 ); see also, Morgan , 551 F.3d at 1260. Though Defendants contend that the variations in the different employees’ job duties are particularly relevant in misclassification cases such as this one because the outcome of the case depends on whether the plaintiffs performed exempt duties, whether an exemption to the FLSA's overtime requirements applies under the specific factual circumstances presented is ultimately a merits determination. If discovery at its close reveals that some categories of employees within the collective performed exempt duties that should trigger an exemption to the FLSA's overtime requirements in combination with all other factors applicable to establishing an FLSA exemption, Defendants can move to decertify the collective at that later stage.
As noted above, at this stage a plaintiff only needs to show that the proposed collective members either (1) had similar duties; or (2) "were all subject to the same policy, plan, or scheme that forms the basis of the alleged FLSA violation." A plaintiff does not have to establish both. See. e.g., Jackson , 181 F. Supp. 3d at 1062 (certifying collective action when plaintiffs provided evidence that they were "subject to a uniform, unwritten policy requiring uncompensated overtime"); Alexander v. CYDCOR, Inc. , No. 1:11-cv-1578, 2012 WL 1142449, at *4 (N.D. Ga. Apr. 6, 2012) (stating that plaintiffs can satisfy the "light burden" for conditional certification "by making substantial allegations of class-wide [violations]"); cf. id. ("While plaintiffs can meet the similarly situated requirement by showing that they and the potential opt-ins were subject to a unified policy, plan, or scheme that violates the FLSA, such a showing is not necessary."). Thus, as Campo argues, even assuming that the proposed collective members performed disparate job functions, "[u]niformity of a pay practice, alone, is sufficient and justifies conditional certification in cases involving straight time for overtime." (Pl.’s Mem. Doc. 37-1 at 8.)
Decisions from multiple other district courts are in accord. For example, in Wellman v. Grand Isle Shipyard, Inc. , No. 14-831, 2014 WL 5810529 (E.D. La. Nov. 7, 2014), the court granted conditional certification on the ground that "[t]he alleged ‘straight time for overtime’ policy constitutes a ‘factual nexus which binds the named plaintiffs and the potential class members together,’ " and "[t]here is no indication that this policy ‘relates to specific circumstances personal to the plaintiff.’ " Id. at *4 (citations omitted). Similarly, in Klapatch v. BHI Energy I Power Services, LLC , No. 18-11581, 2019 WL 859044 (D. Mass. Feb. 22, 2019), the court certified a collective action consisting of "[a]ll employees of BHI who were, at any point in the past 3 years, paid ‘straight time for overtime’ and staffed to a power plant." Id. at *2. Like Campo does here, the plaintiffs in that case argued that they were similarly situated because they were subject to the same policy "of paying the same hourly rate regardless of the number of hours worked." Id. The court concluded that the employees were similarly situated because they "have made a plausible case that they ... suffered from a common unlawful practice, namely not being paid overtime." Id. And, perhaps most significantly, the court in Greinstein v. Fieldcore Services Solutions, LLC found that the plaintiff and putative collective members there were similarly situated "because they were all subject to a uniform pay scheme." 2020 WL 6821005, at *8 (N.D. Tex. Nov. 20, 2020). The court noted that "the possibly dissimilar responsibilities and duties of individual EHS Managers do not preclude conditional certification" because "Greinstein alleges all EHS Managers were subject to the same pay practices which, if proven, is a per se violation of the FLSA." Id. (emphasis in original).
In response to Defendants’ contention that the collective would involve four distinct pay plans, Campo clarified in his reply that he "seeks to represent only individuals paid like him," and that "workers who were not paid under ‘Retainer B’ but instead were paid pursuant only to the other three pay plans" would be excluded from the collective definition. (Pl.’s Reply, Doc. 45 at 3 & n.1.) With that clarification, the Court finds that the proposed collective would not entail the uncertainty and variation that Defendants suggest. In other words, the collective members would neither be paid under different types of pay plans, nor would their claims impermissibly overlap with any of the claims in proposed collectives in related matters.
The proposed collective would not overlap with the collective in Greinstein because Campo expressly excluded EHS employees in Texas from his proposed collective. The collective also would not overlap with the collective in Trottier because that case involved the Retainer V1 pay plan, which is also excluded from the definition as clarified in Campo's reply. And though the attorneys representing Campo initially sought to raise an overlapping FLSA collective action in the other case currently pending in this court, Rodriguez v. Granite Services International, Inc. , No. 1:21-cv-2689 (N.D. Ga.), they subsequently amended the complaint to remove the collective action for that case, and the plaintiff in Rodriguez instead elected to raise his FLSA claim as an individual. See Amended Complaint, Rodriguez v. Granite Services International, Inc. , No. 1:21-cv-2689 (N.D. Ga.), Doc. 90. The three remaining cases all involve state law claims rather than FLSA claims, meaning that there is no overlapping collective on an FLSA claim in any of those matters.
In short, none of the arguments raised by Defendants preclude the Court from finding that the proposed collective members are similarly situated or would otherwise prevent the Court from certifying a collective action as proposed by Campo.
2. Whether Plaintiff Has Established that Other Employees Would Join the Collective Action
Having determined that the collective members are similarly situated, the Court now turns to the second requirement — "whether there are other employees who wish to opt-in to the action." Campo argues that he has satisfied this requirement because "each Plaintiff who has provided a declaration in this action has attested that others are likely to join if they were to receive Court approved notice." (Pl.’s Mem. Doc. 37-1 at 21.)
For example, Campo states in his own declaration, "I know Defendants’ other workers who were paid straight time for overtime would be interested to learn about their rights and their opportunity to join this Lawsuit (like Ms. Ngya)." (Pl.’s Ex. D, Doc. 37-5 ¶ 11.) Like Campo, each of the additional declarants claims to know other employees who would be interested in joining this lawsuit and specifically mentions some of those other employees by name. See (Pl.’s Ex. E, Doc. 37-6 ¶ 11); (Pl.’s Ex. F, Doc. 37-7 ¶ 11); (Pl.’s Ex. G, Doc. 37-8 ¶ 11); (Pl.’s Ex. H, Doc. 37-9 ¶ 11). Based on this evidence, the Court agrees that Campo has met his burden to show that there are other employees who wish to opt-in to the action. Consequently, the Court will conditionally certify the following collective:
All employees of Granite Services and FieldCore paid under the Retainer B pay plan (excluding EHS employees who worked in Texas) who in the past three years were paid "straight time for overtime."
C. Notice to Potential Collective Members
The Court next addresses the appropriate manner of providing notice to the potential collective members. In their opposition, Defendants raise multiple objections to the manner in which Campo proposes to provide notice to the collective members, including whether notice should even be provided in the first place.
As an initial matter, Defendants argue that the Court should not provide notice to the potential collective members because "Campo's counsel has been advertising the claims in this case on social media since 2018." (Defs.’ Opp'n, Doc. 43 at 18.) Defendants included several examples of these ads in their opposition. As Defendants explain, the ads include language such as, "Did you get paid straight time for overtime while working at FieldCore? Many who worked for them may not have been paid what they were rightly owed." (Id. ) The ads also encourage Defendants’ employees to reach out to Campo's attorneys for more information, and include prompts such as "Get your unpaid overtime" and "Find out if you may be owed unpaid wages." (Id. ) Defendants argue that the Court should not grant any additional notice because these ads are " ‘essentially an improper and unauthorized de facto notice’ that ‘flout[s] the statutory framework for opt-in collective actions.’ " (Defs.’ Opp'n, Doc. 43 at 20) (citing Bouder v. Prudential Fin., Inc. , No. 06-cv-4359, 2007 WL 3396303, at *2 (D.N.J. Nov. 8, 2007) ).
Although Defendants argue that the ads "are improper and should be stopped, or should at least be subjected to this Court's oversight and revision," (Defs.’ Opp'n, Doc. 43 at 18 n.8), they have not formally moved for an order directing Campo's attorneys to cease and desist their advertising campaign.
Defendants rely on Bouder v. Prudential Financial, Inc. , No. 06-cv-4359, 2007 WL 3396303 (D.N.J. Nov. 8, 2007), where the court stated, "Outside the context of a notice process supervised by the Court, plaintiffs’ attorneys are not permitted unilaterally to send unsolicited notices regarding the case to putative FLSA class members not yet parties to an action conditionally certified by the Court." Id. at *2. The solicitation at issue in Bouder was a proposed letter that the plaintiffs in that case planned to send directly to potential collective members. But as Campo observes, courts routinely distinguish between general advertisements and solicitations sent directly to potential collective members. See, e.g., Gardner v. G.D. Barri & Assocs. Inc. , CV-20-01518, 2021 WL 2474032, at *4 (D. Ariz. June 17, 2021) (finding that "counsel should not initiate direct contact (e.g. , emails, letters, text messages, telephone calls) with members of the collective beyond the authorized notice" but "may continue to make general advertisements"); Hamric v. True N. Holdings, Inc. , No. 1:16-cv-01216, 2016 WL 3912482, at *2 (N.D. Ohio July 20, 2016) (concurring with plaintiffs’ attorney's argument that advertisements on Facebook "were not solicitations, because they were not directly targeted at individuals"). Moreover, as the Supreme Court has stated, "Court intervention in the notice process for case management purposes is distinguishable in form and function from the solicitation of claims." Hoffmann-La Roche Inc. v. Sperling , 493 U.S. 165, 174, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Thus far, it appears that Campo's attorneys have only solicited claims from Defendants’ employees through general advertisements. Such conduct does not obviate the need for Court-sponsored notice moving forward. See Calderon v. Geico Gen. Ins. Co. , No. 10cv1958, 2011 WL 98197, at *8 (D. Md. Jan. 12, 2011) ("The importance of timely informing potential opt-in plaintiffs of their rights is not undermined by the actions of Plaintiffs’ counsel in advertising for lead plaintiffs to bring this action.").
With respect to the notice itself, Defendants state, "Defendants object to the substance of the notice, the confusion it would cause as drafted, and the multiple means by which Campo would distribute it." (Defs.’ Opp'n, Doc. 43 at 33.) First, Defendants say, "Campo's draft notice includes a case caption just like an order issued by this Court." (Id. ) They say that "[i]n doing so, it impermissibly suggests judicial approval of Plaintiff's claims" and that "using an official case caption thumbs the scale in Campo's favor." (Id. ) Next, Defendants argue that the proposed notice does not contain a sufficient description of Defendants’ "denials and defenses" and that "the notice inaccurately portrays the consequences of opting in." (Id. at 34.) They say that based on the language of Campo's preferred notice, "[r]eaders are left with the impression that opting in does nothing more than open the door to gain" and "[i]t never mentions the very real possibility that an opt-in could recover nothing at all yet still expose themselves to probing discovery, if not court costs." (Id. )
Defendants also request an opportunity to meet and confer with Campo in an effort to prepare a jointly proposed notice as an alternative to the one unilaterally presented by Campo. And they request that a third-party administrator send out the notice instead of Campo's counsel, citing "Campo's counsel's pattern of tactically utilizing litigation to drive up costs and rile up claims." (Id. )
Given that the only proposed notice that is currently before the Court was unilaterally prepared by Campo — without any input from Defendants — the Court will grant Defendants’ request for an order directing the parties to meet and confer. Cf. Greinstein , 2020 WL 6821005, at *9 (granting defendants’ request to meet and confer with plaintiff about the contents and methods of notice when defendants asserted that plaintiff's proposed notice was "neither fair nor neutral"); Klapatch , 2019 WL 859044 at *3 (denying plaintiffs’ request "that the court adopt their proposed notice and consent form, opt-in procedures, and schedule, all of which [defendant] opposes" and instead "direct[ing] the parties to file a joint proposal"). Before they do so, however, the Court provides the parties with some general guidance with respect to the issues raised by Defendants.
Regarding Defendants’ objection to including the case caption on the notice, the Court does not believe that the inclusion of a case caption is per se improper. Inclusion of a case caption would seemingly be permissible as long as the notice does not otherwise contain an "appearance of judicial endorsement of the merits of the action." Hoffmann-La Roche Inc. , 493 U.S. at 174, 110 S.Ct. 482 ; see, e.g., Allen v. Hartford Fire Ins. Co. , No. 6:16-cv-1603, 2017 WL 3701139, at *11 (M.D. Fla. Aug. 25, 2017) (approving notice with case caption in the heading when the notice also included a statement that the court "has taken no position on the merits of this case, or as to the claims or defenses," which was "sufficient to dispel any notion of judicial endorsement").
Further, the Court notes that some of the additional language Defendants wish to include about the consequences of opting in could potentially chill participation. See Miller v. FleetCor Techs. Operating Co., LLC , No. 1:13-cv-2403, 2014 WL 12543337, at *8 (N.D. Ga. Apr. 8, 2014). That includes the proposed language stating that opting into the collective could potentially subject a collective member to document discovery, depositions, or the obligation to testify at trial. Id. There are clearly alternative neutral ways of simply advising collective members that they may be required to present some manner of information regarding their employment and salary payments during the course of the litigation.
The Court also observes that notification by e-mail and text message seems appropriate here. By way of analogy, in one case cited by Campo, Landry v. Swire Oilfield Services, L.L.C. , 252 F. Supp. 3d 1079 (D.N.M. 2017), the court approved notice by e-mail and text message on the theory that the collective members "likely are ‘dispersed to various wellsites around the country and may be away from their homes and addresses of record for weeks or months at a time.’ " Id. at 1129. Similarly, each of the declarants here contended that notice by e-mail and text message would be beneficial because Defendants’ employees often work in remote locations. (Pl.’s Ex. D, Doc. 37-5 ¶ 12); (Pl.’s Ex. E, Doc. 37-6 ¶ 12); (Pl.’s Ex. F, Doc. 37-7 ¶ 12); (Pl.’s Ex. G, Doc. 37-8 ¶ 12); (Pl.’s Ex. H, Doc. 37-9 ¶ 12). In these circumstances, notice by e-mail and text message may be the best means of reaching the collective members.
Lastly, for the Court to approve a request for a third-party administrator to send out the notices, Defendants would have to provide "concrete reasons" for why Campo's attorneys "cannot be trusted with the information requested." Stitt v. Am. Disposal Servs. of Ga., Inc. , No. 1:18-cv-2516, 2018 WL 6716046, at *4 (N.D. Ga. Dec. 20, 2018). Defendants’ general displeasure with opposing counsel's indirect solicitation of potential claims will not suffice.
An administrator conceivably might be helpful if the potential collective is very large, but the Court has no information before it that suggests that.
III. Conclusion
For the foregoing reasons, the Court GRANTS Plaintiff's Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members [Doc. 36] IN PART . The Court conditionally certifies a collective action consisting of "All employees of Granite Services and FieldCore paid under the Retainer B pay plan (excluding EHS employees who worked in Texas) who in the past three years were paid ‘straight time for overtime.’ "
The Court DIRECTS the parties to meet and confer for the purpose of preparing a joint proposed notice to potential collective members. Defendants are further DIRECTED to run a list of potential collective members and the full contact information available for such members. This will facilitate counsel's practical assessment of any adjustments required in the notice plan. The Court ORDERS the parties to submit a joint proposed notice and proposed method of delivery by no later than February 14, 2022 . If there are minor disagreements, the parties should note those disagreements and their respective suggested language alternatives on the proposal, using the "track changes" editing feature. If counsel are unable to reach an agreement in substance, each party is directed to submit its own version of the proposed notice and proposed method of delivery to the Court by no later than February 15, 2022 .
IT IS SO ORDERED this 24th day of January, 2022.