Opinion
Civil Action 2:04-CV-774.
May 11, 2005
OPINION AND ORDER
I. Background
On August 19, 2004, Plaintiff Jason Smith commenced this action against his employer, Lowe's Home Centers [hereinafter "Lowe's"], alleging that Lowe's failed to pay him appropriate overtime compensation under both federal and state law. The complaint seeks relief under the Fair Labor Standards Act, 29 U.S.C. § 210 et seq. [hereinafter "FLSA"], and asserts this claim on behalf of Jason Smith and other similarly situated employees as a collective action under § 16(b) of the FLSA, 29 U.S.C. § 216(b). Complaint, at ¶¶ 31, 47-50. The complaint also seeks relief under the Ohio Minimum Wage Act, O.R.C. § 4111.01 et seq. [herinafter "OMWA"], and asserts this claim on behalf of Jason Smith and other similarly situated employees as a traditional class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Id., at ¶¶ 32, 51-54.
Since the institution of the action, additional individuals have joined as plaintiffs in the action.
According to the complaint, Lowe's has failed to pay full overtime benefits to a class of employees identified as "non-exempt salaried employees" such as department managers, assistant department managers and specialists. Id., at ¶ 16. It is alleged that these employees are regularly scheduled to work a minimum of 48 hours per week and are subject to Lowe's "Salaried Plus Overtime Eligible Compensation Plan." Id., at ¶ 18; Exhibit A, attached to Plaintiff's Motion for Expedited Discovery and Court-Supervised Notice to Potential Opt-In Plaintiffs [hereinafter "Plaintiff's Motion"]. The complaint alleges that Lowe's violated the FLSA and the OMWA by paying these employees overtime compensation pursuant to the "fluctuating workweek" method set forth in 29 C.F.R. § 778.114; according to Plaintiff, this method of payment enables employers to pay overtime premiums that are significantly less than the premiums that would otherwise apply under the FLSA. Complaint, at ¶ 22. An employer may utilize the fluctuating workweek method only if each of the following four conditions is satisfied: (1) the employee's hours of work must fluctuate from week to week; (2) the employee must receive a fixed salary that does not vary with the number of hours worked during the week (excluding overtime premiums); (3) the amount of salary must be sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours he or she works is greatest; and (4) the employer and employee must share a "clear mutual understanding" that the employer will pay that fixed salary regardless of the number of hours worked. O'Brien v. Town of Agram, 350 F.3d 279, 288 (1st Cir. 2003); 29 C.F.R. § 778.114. The complaint asserts that Lowe's has failed to satisfy the above conditions.
The regulations provide that overtime compensation is calculated pursuant to a fluctuating workweek plan at one-half the rate of the employee's salary calculated as straight time compensation for all hours worked. See 29 C.F.R. § 788.114(a).
On October 13, 2004, Plaintiffs served Lowe's with an initial set of interrogatories seeking the identity, contact information and pertinent employment dates for each non-exempt salaried employee employed at Lowe's Ohio retail or warehouse establishments since August 19, 2001. Exhibit C, attached to Plaintiffs' Motion. The motion to expedite explains that this information is necessary in order to provide notice to all potential opt-in plaintiffs.
II. Application
A. Standard
Plaintiffs seek conditional class certification to pursue their claims and authorization to send notice of this lawsuit to potential opt-in plaintiffs pursuant to § 216(b) of the FLSA. Section 216(b) provides:
Action to recover . . . [for violation of § 207 of the FLSA] 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 action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.29 U.S.C. § 216(b). Therefore, "to be bound by the judgment" or "benefit from it," potential plaintiffs must "opt-in" to an FLSA collective action, and only by "opting-in" can potential plaintiffs' claims be tolled. Hoffman v. Sbarro, 982 F. Supp. 249, 260 (S.D.N.Y. 1997). The United States Supreme Court has made it clear that the collective action provisions of the FLSA authorize a district court to issue court-supervised notice to potential class members. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989) ("[D]istrict courts have discretion . . . to implement [§ 216(b)] . . . by facilitating notice to potential plaintiffs"). Notice at an early stage of litigation is appropriate to further the FLSA's broad remedial goals and to promote efficient case management. Id., at 169-171; Braunstein v. Eastern Photographic Labs, Inc., 600 F.2d 335, 336 (2nd Cir. 1978) (notification of putative plaintiffs "comports with the broad remedial purpose of the Act, which should be given a liberal construction, as well as with the interest of the courts in avoiding multiplicity of suits").
Unlike a Rule 23 class action, the commencement of a representative action under § 216(b) does not toll the running of the 2-3 year statute of limitations period applicable to FLSA actions. See 29 U.S.C. § 256(b); Cahill v. City of New Brunswick, 99 F. Supp. 2d 464, 479 (D.N.J. 2000).
The strict requirements of Rule 23 of the Federal Rules of Civil Procedure do not apply to FLSA collective actions. Miklos v. Golman-Hayden Companies, Inc., 2000 WL 1617969, at *1 (S.D. Ohio 2000); Hoffman, 982 F. Supp. at 263. Thus, no showing of numerosity, typicality, commonality, and representativeness is required. Id. Instead, the only threshold requirement plaintiffs must meet is to demonstrate that potential class members are "similarly situated." 29 U.S.C. § 216(b). Although the FLSA does not define this term, courts have held that "plaintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members." Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988), aff'd in part and appeal dismissed in part, 862 F.2d 439 (3rd Cir. 1988); aff'd, 493 U.S. 165 (1989); Prichard v. Dent Wizard International Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002); Viciedo v. New Horizons Computer, Learning Center of Columbus, Ltd., 2:01-cv-250 (S.D. Ohio 2001).
Plaintiffs bear the burden of establishing that they and the class they wish to represent are similarly situated. See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996). Most courts hold that the determination of whether FLSA claimants are "similarly situated" for the purposes of § 216(b) is a two-step procedure. Felix de Asencio v. Tyson Goods, Inc., 130 F. Supp. 2d 660, 663 (E.D. Pa. 2001), Briggs v. United States, 54 Fed. Cl. 205, 206 (2002). The first step, which is generally conducted early in the litigation process, is a preliminary inquiry into whether the plaintiffs' proposed class is constituted of similarly-situated employees. Fexlix de Asencio, 130 F. Supp. 2d at 663; Briggs, 54 Fed. Cl. at 206. The second step, which is usually conducted after the completion of class-related discovery, is a specific factual analysis of each employee's claim to ensure that each actual claimant is appropriately made party to the suit. Felix de Asencio, 130 F. Supp. 2d at 663, Briggs, 54 Fed. Cl. at 206.
B. Application
Although Plaintiffs need not meet the Rule 23 standards for class certification, in order to create a conditional class under § 216(b), Plaintiffs must demonstrate that they and the class they wish to represent are "similarly situated." Plaintiffs request that the Court allow them to send notice of this lawsuit to all non-exempt salaried employees employed at Lowe's Ohio retail or warehouse establishments since August, 2001. Lowe's contends that Plaintiffs have not carried their burden of showing that the members of this class of potential plaintiffs are similarly situated to Plaintiffs.
The Sixth Circuit has not yet determined what standard to apply in considering whether potential class members are "similarly situated." Pritchard, 210 F.R.D. at 595; Viciedo, No. 2:01-cv-250 (S.D. Ohio 2001). However, "courts generally do not require prospective class members to be identical." Moss v. Crawford Co., 201 F.R.D. 398, 409 (W.D. Pa. 2000). In the absence of appellate guidance, this Court looks to other districts and circuits, which have applied varying standards. "Some courts hold that a plaintiff can demonstrate that potential class members are `similarly situated,' for purposes of receiving notice, based solely upon allegations in a complaint of class-wide illegal practices." Pritchard, 210 F.R.D. at 595 (quoting Belcher v. Shoney's, Inc., 927 F. Supp. 429, 251 (M.D. Tenn. 1996)). Other courts generally apply a more stringent, although nonetheless lenient, test that requires that plaintiff make a "modest factual showing" that the similarly situated requirement is satisfied. Pritchard, 210 F.R.D. at 595-96; Belcher, 927 F. Supp. at 251. Courts requiring a factual showing "have considered factors such as whether potential plaintiffs were identified; whether affidavits of potential plaintiffs were submitted; and whether evidence of a widespread discriminatory plan was submitted." Pritchard, 210 F.R.D. at 596 ( quoting HR Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) (citations omitted)).
See, e.g.,; Goldman v. Radio Shack Corp., 2003 WL 21250571, *8, (E.D. Pa. 2003) ("During this first-tier inquiry, we ask only whether the plaintiff and the proposed representative class members allegedly suffered from the same scheme."); Felix de Asencio, 130 F. Supp. 2d at 663 ("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." (internal quotations omitted)); Allen v. Marshall Field Co., 93 F.R.D. 438, 442-45 (N.D. Ill. 1982).
See, e.g., Dyback v. Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991) ("Before determining to exercise [its] power [to approve notice to potential plaintiffs], the district court should satisfy itself that there are other employees . . . who desire to `opt-in' and who are `similarly situated' . . ."); Mueller v. CBS, Inc., 201 F.R.D. 425, 428 (W.D. Pa. 2001) (requiring plaintiff to provide "a sufficient factual basis on which a reasonable inference could be made" that potential plaintiffs are similarly situated (internal quotations omitted)); Harper v. Lovett's Buffet, Inc., 185 F.R.D. 358, 362 (M.D. Ala. 1999) ("Plaintiffs have the burden of demonstrating that a reasonable basis for crediting their assertions that aggrieved individuals exist in the broad class that they propose."); Jackson v. New York, 163 F.R.D. 429, 431 (S.D.N.Y. 1995) ("Plaintiffs need merely to provide some factual basis from which the court can determine if similarly situated potential plaintiffs exist." (internal quotations omitted)); Briggs, 54 Fed. Cl. at 207 (requiring "modest factual showing that [plaintiffs] are similarly situated with other, un-named potential plaintiffs").
In the case at bar, this Court concludes Plaintiffs have sufficiently alleged a collective action under § 216(b) of the FLSA to proceed with conditional certification. Plaintiffs have met their burden of showing that they are similarly situated to those whom they request to represent under either standard set forth above. Applying the less restrictive standard, i.e., mere allegations in the complaint of class-wide illegal practices, the Court concludes that Plaintiffs have sufficiently set forth allegations of Lowe's class-wide practice of not paying full overtime wages to its "non-exempt salaried employees." Applying the more restrictive standard, i.e., factual support for the class allegations in the complaint, the Court concludes that Plaintiffs have met this standard as well. The affidavits of the six opt-in Plaintiffs demonstrate that potential class members are "similarly situated." Each of the opt-in Plaintiffs purports to be similarly situated to Plaintiff Jason Smith; that he or she was required to work a minimum of 48 hours per week and that he or she did not have a clear understanding that his or her salary was fixed (excluding overtime premiums), despite the number of hours worked. See Affidavit of Consent of Gary L. Austin, at ¶ 4; Affidavit of Consent of Wendell G. Estep, at ¶ 8; Affidavit of Consent of Jack W. Angle, at ¶ 7; Affidavit of Consent of Rick Gressner, at ¶ 7; Affidavit of Consent of Robin L. King, at ¶ 7; and Affidavit of Consent of Ronald E. Roar, at ¶ 4. Plaintiffs also submit documentation outlining the job description of a specialist, assistant manager and manager. This documentation explains that employees in these positions are "generally scheduled [to work] for 48 hours [per week]." Exhibit A, attached to Plaintiff's Motion. Furthermore, Plaintiffs submit evidence that suggests that Lowe's implements its fluctuating workweek program pursuant to standard and company-wide policies and practices. Affidavit of Aleda Jo Howard, at ¶ 6, attached as Exhibit B to Plaintiffs' Motion.
Under the FLSA, the statute of limitations period continues to run against each potential class member until he or she formally elects to join the collective action. 29 U.S.C. § 256(b). For this reason, it is widely accepted that, at the notice stage of a § 216(b) collective action, the plaintiff's burden of establishing that he is similarly situated to potential opt-in class members is extremely light. See e.g., Cameron-Grant v. Maxim Healthcare Serv., Inc., 347 F.3d 1240, 1243 (11th Cir. 2003); Theissen v. GE Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001); Mooney v. Aramco Services Co., 54 F.3d 1207, 1214 (5th Cir. 1995). At this early stage of the case, courts generally "examine the record and affidavits to determine whether notice should be given to potential plaintiffs." Clausman v. Nortel Networks, Inc., 2003 WL 21314065, * 3 (N.D. Ind. 2003) ( citing Mosses v. Crawford Co., 201 F.R.D. 398 (W.D. Pa. 2000)). "The standard at this time is `fairly lenient' and often results in the `conditional certification' of the class." Id. Plaintiffs have met this burden.
In light of the foregoing discussion, Plaintiffs' motion for expedited discovery and courtsupervised notice to potential opt-in plaintiffs, Doc. No. 30, is GRANTED. It is hereby ORDERED that Defendant respond to the October 13, 2004 discovery requests within twenty (20) days of the date of this Order. Furthermore, within ten (10) days of this Order, the parties shall submit to the Court proposed language for the notification and consent forms.