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granting conditional certification where plaintiffs alleged a common policy of employer denying employees payment and finding affidavits and other documentary evidence sufficient to support the allegations
Summary of this case from Bridges v. Absolute Lawn Care La, LLCOpinion
CIVIL ACTION NO: 04-170, SECTION: "J"(4)
May 24, 2004
MINUTE ENTRY
Before the Court is the Motion to Certify a Collective Action Pursuant to § 216(b) of the Fair Labor Standards Act ("FLSA"), and to Approve a Proposed Notification. Rec. Doc. 14. Defendants oppose the motion. The motion, set for hearing on May 26, 2004, is before the Court on briefs without oral argument.
BACKGROUND
Plaintiffs are current and former employees of defendant Francis Services, Inc., d/b/a Francis Torque Services ("Francis"). They allege that they were denied overtime payments due to them by Francis as a result of two Francis policies: failing to pay time and a half for hours worked in excess of 40 hours per week; and, when paying overtime, calculating time and a half on an inaccurate base pay that did not reflect true base wages because it did not include amounts described as "discretionary bonuses" which were in fact part of regular pay. Complaint, ¶ 12. They seek certification of a collective action class of Francis employees who are or were similarly situated, in that they were deprived of rightful overtime pursuant to the same Francis policies.
Defendant counters that certification of a collective action on this basis would be inappropriate, because the putative plaintiffs are not similarly situated. According to defendant, this is due to the fact that the proposed plaintiffs' class includes individuals who hold positions involving "different job descriptions, duties, pay rates, pay scales, pay practices, and/or work locations." Memo in Opp., Rec. Doc. 15, at 6.
DISCUSSION
To certify a collective action under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"), two requirements must be met. First, the named representatives and the putative members of the prospective FLSA class must be similarly situated. Whitworth v. Chiles Offshore Corp., 1992 WL 235907, *1 (E.D. La. 1992). Second, the action at issue must have a general effect. Id. "A court may deny a plaintiff's right to proceed collectively only if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice." Id., citing Burt v. Manville Sales Corp., 116 F.R.D. 276, 277 (D. Colo. 1987).
To resolve the question whether putative collective action members are similarly situated, courts may employ a two-step analysis for conditional certification as established by the Fifth Circuit in Mooney v. Aramco. Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995). First, at the so-called "notice stage," the district court decides whether notice of the action should be given to potential class members. 54 F.3d at 1213-14. This decision is usually based only on the pleadings and any affidavits which have been submitted. Id. It is made applying a fairly lenient standard, and usually results in "conditional certification" of a representative class. Id. "At the notice stage, courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan infected by discrimination." Id. at 1213-14 n. 8 (citations and quotations omitted) (emphasis added). Following conditional certification, putative class members are given notice and the opportunity to opt: in to the collective action. Id. at 1214. The case then proceeds throughout discovery as a collective action. Id.
A second step takes place later on, when and if the defendant files a motion for decertification, after more extensive discovery has taken place. Id.
At this stage, the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question. If the claimants are similarly situated, the district court allows the representative action to proceed to trial. If the claimants are not similarly situated, the district court decertifies the class, and the opt-in plaintiffs are dismissed without prejudice. The class representatives — i.e. the original plaintiffs — proceed to trial on their individual claims.Id. at 1214,
Whether at the notice stage or on later review, collective action certification is not precluded by the fact that the putative plaintiffs performed various jobs in differing departments and locations. Heagney v. European American Bank, 122 F.R.D. 125, 127 (E.D.N.Y. 1988) (citations omitted); accord, Burt, 116 F.R.D. at 277 (citations omitted).
In the instant case, the Court finds that plaintiffs have met the requirements for conditional certification. Plaintiffs are similarly situated to potential collective action members. The named plaintiffs and putative collective action members are current and former non-exempt Francis employees, who allege that they were not paid overtime for hours worked in excess of 40 per week, and also, that when they were paid overtime, their base rates were improperly calculated due to a Francis policy of classifying part of their base pay as a discretionary bonus. This factual nexus arising from an alleged violation of the FLSA is satisfactory for purposes of a conditional certification. Further, plaintiffs do not allege that they were singled out for underpayment, but that all hourly employees who worked overtime and/or were paid discretionary bonuses not included in their base pay for calculation of overtime, were affected by the company's policy. Finally, in connection with the motion to certify, plaintiffs have submitted affidavits and other documentary evidence in support of these allegations. Given these facts, and the lenity with which conditional certification decisions must be made under Mooney, the Court finds that a FLSA class should be conditionally certified to include:
All current and former employees of Francis Services Inc. and/or Francis Torque Services who were paid on an hourly basis at any time between January 15, 2001 to present, and who worked, at any time therein, over 40 hours per week without being paid time and a half for the hours worked over 40 per week; or, who were paid overtime for hours worked over 40, but whose overtime was calculated on a base rate which did not include regularly paid "discretionary bonuses."
The Court recognizes that this class definition is slightly different than the one proposed by plaintiffs, but considers it to narrow the class somewhat without excluding anyone who has a right to opt in under the facts as alleged by plaintiffs.
The Court rejects defendants' argument that such a class is problematic because it includes individuals from various positions, locations, etc.; the law is plain that that does not undermine the "similarly situated" requirement. See Heagney, Burt, supra. However, as discovery proceeds, defendants may move to decertify of modify the conditionally certified class as defined if appropriate.
With respect to plaintiffs' request for notice to be sent to potential collective action members, for an order requiring defendants to provide the names and addresses of all potential collective action members for notice purposes, and an order prohibiting retaliation against or coercion of Francis employees who opt in to the class, the Court agrees with plaintiffs' argument in their Reply memo (albeit made only with respect to the question of Notice), that this can be worked out. The Court therefore instructs counsel to work together to draft an appropriate Notice and the other orders requested, and make a joint proposed submission to the Court. Accordingly,
IT IS ORDERED that plaintiffs' Motion to Certify a Collective Action Pursuant to § 216(b) of the Fair Labor Standards Act ("FLSA"), and to Approve a Proposed Notification, Rec. Doc. 14, should be and is hereby GRANTED in part as set forth hereinabove;
IT IS FURTHER ORDERED that counsel shall make the required joint submission (Proposed Notice and miscellaneous orders) within 21 days of entry of this order.