FLSA Collective Action Motion Filed In Gainesville Florida

FIRST AMENDED MOTION TO CONDITIONALLY CERTIFY COLLECTIVE ACTION, AND TO FACILITATE NOTICE, AND FOR LIMITED EXPEDITED DISCOVERY
Plaintiff, Annette Sampson, by and through undersigned counsel, and under 29 U.S.C. § 216(b), hereby moves the Court to conditionally certify a collective action, to facilitate notice to potential plaintiffs, and to require expedited responses to discovery in this action under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et. seq. (“F.L.S.A.”).  This Motion Amends and replaces the Plaintiff’s prior Motion for Collective Action filed as Doc. 4.
CERTIFICATE OF CONFERENCE
Pursuant to Local Rule, counsel for Plaintiffs has conferred in good faith to resolve the issues contained herein by contacting counsel for Defendant. Counsel for Defendant indicated that she was unable to agree to the relief requested at this time (which Defendant has already opposed, via its Doc. 8 filing).  Should Defendant alter this position in the future, the Plaintiff will file a proposed consent order.
BACKGROUND
This suit seeks to redress the failures to pay overtime wages by MM SERVICES, L.L.C., doing business as HTC ONE (“Defendant”) to its employees.  Especially, the Defendant has a “Wage Scale” form that applies explicitly to its Caregivers and Companion Sitters.  See Exhibit A.  This “Wage Scale” sets a “Base Rate” that it agrees to pay its employees.
As denoted in the “Wage Scale” form, the Defendant’s employees are paid a “Bonus Rate” in addition to the “Base Rate” for overtime work. However, Defendant has a pattern and practice of calculating overtime by excluding the “Bonus Rate” from the calculation of the overtime rate.
The “Base Rate” was the only rate used by Defendant to calculate its employee’s overtime rate as proven by Plaintiff’s Declaration and wage statement attached hereto as Exhibits B and C. Although this “Base Rate” varied over time, the fact that Defendant excluded the “Bonus Rate” from its overtime calculations of all of its all Caregivers and Companion Sitters is universal.
Determining the amounts Defendant owes to Plaintiffs would be mathematical. It would merely entail adding the “Bonus Rate” into the employee’s “Base Rate” to determine the correct overtime rate applicable to each employee.  Moreover, four “opt-ins” (including the named Plaintiff) have already elected to join this case, as noted in the attached hereto Exhibit D.  Therefore, this matter is appropriately resolved as a collective action.
ANALYSIS
A Collective Action Is Appropriate
1.  The Threshold for Certifying an F.L.S.A. Collective Action is Low
Section 216(b) of the F.L.S.A. authorizes employees to, among other things, bring “collective actions” against their employers for violations of the F.L.S.A. This section provides in relevant part as follows:
Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their due overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.
An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) 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 such action is brought
29 U.S.C. 216(b) (emphasis added). Although 216(b) does not specifically provide procedural guidance concerning the maintenance of collective actions, it is well settled that district courts have discretionary power to certify a collective class and authorize notice to all putative class members. See Hoffman-LaRoche Inc. v. Sperling, 493 U S. 165 (1989); Dybach v. Fla. Dept, of Corrections, 942 F.2d 1562 (11th Cir. 1991).
The threshold to determining whether to conditionally certify the class under the F.L.S.A. is very low. This Court must only determine: (1) whether other employees desire to opt-in; and (2) whether these employees could be similarly situated concerning their job requirements and pay provisions. See Dybach, 942 F.2d at 1567-68.
In Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208 (11th Cir.2001), the Eleventh Circuit detailed the procedure that this Court is to use in certifying collective actions under section 216(b):
The first determination is made at the so-called “notice stage.” At the notice stage, the district court makes a decision-usually based only on the pleadings and any affidavits which have been submitted—whether notice of the action should be given to potential class members.
Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in “conditional certification” of a representative class. If the district court “conditionally certifies” the group, putative class members are given notice and the opportunity to “opt-in.” The action proceeds as a representative action throughout discovery.
Hipp, 252F.3d. at 1218.
It is not appropriate for the Court to consider the merits of the dispute at this stage. “Even if plaintiffs’ claims turn out to be meritless, or, all plaintiffs turn out not to be similarly situated, notification at this stage, rather than after further discovery, may enable the more efficient resolution of the underlying issue in this case.” (e.s.). Harrison v. Enterprise Rent-A-Carr Co., Case No. 98-233-CIV-T-24(A), 1998 U.S. Dist. LEXIS 13131, at *14 (M.D. Fla. July 1, 1998) (quoting Krueger v. New York Tel Co., 1993 U.S. Dist. LEXIS 9988, *2 (S.D.N.Y. July 21, 1993); Pendlebury v. Starbucks Coffee Company, Case No. 04-80521- CIV-MARRA/SELTZER, 2005 U.S. Dist. LEXIS 574, at *11 (S.D. Fla. January 3, 2005) (holding that factual assertions regarding potential opt-in plaintiffs were “not appropriate for consideration at the notice stage of the litigation.”); Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676, 682 (D. Kan. 2004) (“The court will examine the individual plaintiffs’ disparate factual and employment settings, as well as the various defenses available to the defendant which appear to be individual to each plaintiff, during the ‘second stage’ analysis after the close of discovery.”); Leuthold v. Destination America, 224 F.R.D. 462, 468 (N.D. Cal. 2004) (“Defendants’ arguments in their brief opposition focus on the more stringent second-tier analysis and raise issues that may be more appropriately addressed on a motion for decertification after the notice is given to the proposed class”); Goldman v. Radioshack Corp., Case No. 2:03-CV-032, 2003 LEXIS 7611, at *27 (E.D. Pa. April 16, 2003) (“A fact-specific inquiry is conducted only after discovery and a formal motion to decertify the defendant brings the class.”).
In Zimmerman v. Netco, Inc., Case No. 2:04-cv-234-FtM-33SPC (M.D. Fla. March 1, 2005, Order adopting Report and Recommendation of Magistrate Judge Chappell of February 8, 2005), the Court briefly summarized the issues associated with the determination of the appropriateness of an F.L.S.A. collective action:
This determination is usually based on the pleadings and affidavits and is made using “a fairly lenient standard and typically results in conditional certification.” The “similarly situated” requirement does not require identical positions, and the Plaintiff s burden is not heavy.
The second determination, whether or not the plaintiffs are similarly situated, is typically precipitated by a motion for decertification by the defendant usually filed after discovery is almost complete. Whether or not to allow the F.L.S.A. claim to proceed as a collective action is committed to the sound discretion of the Court.
However, at this point in the proceedings, the Court is not concerned with the second determination.Id. (internal citations omitted and emphasis supplied).
 

  1. Other Employees Desire to Opt-In

In this case, other employees desire to opt-in to the lawsuit. For instance, to date, four employees have filed notices of consent to opt-in this action (including the named Plaintiff). See Exhibit D. This evidence is more than sufficient to establish that other employees wish to join this lawsuit. See Espanol v. Avis Budget Car Rental, LLC., Case No. 8:10-cv-944-T-30AEP, 2011 U.S. Dist. LEXIS 120485, at *5 (M.D. Fla. October 18, 2011) (noting that the eight (8) additional notices of consent already filed show that other employees desire to opt-in the action); Spell v. Voyeur Dorm, L.C., Case No. 8:03-cv-1091-T-26TGW, at 3 (M.D. Fla. August 4, 2003) (“Also informing this Court’s discretionary decision to grant conditional certification is the significant fact that since the filing of the Plaintiffs’ complaint, six other employees of the Defendants have filed consents to opt-in and join this lawsuit.”); see also Bell v. Mynt Entertainment, L.L.C., 223 F.R.D. 680, 683 (S.D. Fla. 2004) (affidavits of original plaintiffs stating that other similarly situated employees “were unhappy” and “would be interested in joining” the action provided “reasonable basis” for collective action to proceed); White v. Osmose, Inc., 204 F.Supp.2d 1309, 1316 (M.D. Ala. 2002) (affidavits from three individuals expressing a desire to join action sufficient to warrant opt-in notice to class).

  1. The Other Employees Are Similarly Situated

The Defendant’s Caregivers and Companion Sitters were all subjects to the Wage Scale by its very terms.  Thus, they are similarly situated for opt-in/collective action purposes.
In Grayson v. K Mart Corp., 19 F. 4d 1086, 1095 (11th Cir. 1996), the Eleventh Circuit held: “the ‘similarly situated’ requirement of §216(b) is more elastic and less stringent than the conditions found in Rule 20 (joinder) and Rule 42 (severance).” See also Hipp, 252 F. 3d at 1219. The Eleventh Circuit also stated, ‘”[P]laintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members.'” Grayson, 79 F.3d at 1096 (quoting Sperling v. Hoffman-LaRoche, Inc., 118 F.R.F. 392, 407 (D.N.J. 1988), aff’d. in part and appeal dismissed in part, 862 F.2d 439 (3d Cir. 1988). Other courts have held that it can be an abuse of discretion not to certify an F.L.S.A. collective action. See Spell v. Voyeur Dorm, L.C., Case No. 8:03-cv-1091-T-26TGW, at 3 (M.D. Fla. August 4, 2003) (abuse of discretion not to grant conditional certification where detailed affidavits showed similarly situated individuals and multiple consents to join had been filed).
Employees are similarly situated where they are subjected to the same unlawful policy or practice. See Brown v. Maximum Efficiency Squared, L.L.C., Case No. 2:07-cv-889- M.E.F., 2008 U.S. Dist. LEXIS 35608, at 3-6 (M.D. Ala. April 30, 2008); Ohsann v. L.V.Stabler Hosp., Case No. 2:07-cv-0875-WKW, 2008 U.S. Dist. LEXIS 47074, at 6-7 (M.D. Ala. June 17, 2008).
For example, in Church v. Consolidated Freightways, Inc., 137 F.R.D. 294 (N.D. Cal. 1991), the court held that a single decision, policy, or plan was sufficient for all employees to constitute a Section 216(b) class. Church, 137 F.R.D. at 306. The court noted that the strict class requirements of Rule 23 were not necessary in Section 216(b) action. Id. The court held that the scope of a class is governed by whether the individuals were affected by a similar payment plan, regardless of whether the individuals worked different jobs, at other locations, and reported to varying supervisors as follows:
a class claim is not defeated simply because the proposed class performed a variety of other jobs at different locations, reported to different supervisors, or left employment for different reasons than the named plaintiffs. What governs the scope of the class is whether the named plaintiffs and their class members were all affected by a similar plan infected by discrimination. The plaintiffs need not be identically situated to potential class members.
 
Id. at 308 (e.s.). Therefore, the fact that individuals who elect to “opt-in” to this action may have different: (i) work locations or supervisors; or (ii) number of uncompensated hours, does not in any way affect the similarity of their positions. See id.
                             B.   Court Supervised Notice Is Appropriate 
Plaintiffs, pursuant to Rule 83 of the Federally Rules of Civil Procedure, hereby move for an order permitting under court supervision notice to Defendant’s employees and former employees of their opt-in rights, and as grounds, therefore, states as follows:
Motion

  1.   Section 16(b) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b) provides, among other things, that an action to recover unpaid overtime compensation may be maintained against any employer in any federal or state court of competent jurisdiction by any one or more employees for and on behalf of himself/herself or themselves and other employees similarly situated.
  2.   As stated by Plaintiff’s complaint and in the Declaration attached hereto as Exhibit B (with supporting exhibits), the allegations of which are incorporated herein by reference, Plaintiffs is a former employee of the Defendant authorized by the above statute to sue in her name in behalf of herself and other employees similarly situated and is of capacity to sue.
  3.   Plaintiff is informed and believe that their claim is typical of the claims of other employees of the Defendant, and standard of the claims of all members of the representative collective described below.  See also the “Wage Scale” form, attached to the Complaint and the attached Declaration.  
  4.   The representative collective consists of employees due to unpaid overtime compensation under the Fair Labor Standards Act.  As per the “Wage Scale” attached hereto as Exhibit A and the attached Declaration, the Defendant had a clear policy and practice of miscalculating its employee’s base wage rates by employing a “bonus” scheme to keep the regular rate low; thus also miscalculating the overtime rate.
  5.   Plaintiffs will fairly and adequately represent and protect the interests of all members of the collective.
  6.   These are common questions of law and fact affecting rights of each member of the collective, as against Defendant named herein, as more fully outlined in the complaint.
  7.   The prosecution of separate actions by or against individual members of the collective would create a risk of adjudications with respect to individual members of the collective which would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.
  8.   The employer herein has acted or refused to act on grounds generally applicable to its current and former employees, thereby making injunctive and equitable relief appropriate with respect to current and former employees as a whole.
  9.   The common questions of law and fact predominate over any questions affecting only the Plaintiffs, and a representative collective action is superior to other available methods for the fair and equitable adjudication of the controversies between the employees herein described and the named Defendant.
  10.   This motion is filed pursuant to Section 215(a)(1) and (2) of the Fair Labor Standards Act of 1938.

Memorandum of Law
This is an action alleging overtime violations under Section 215(a)(1) and (2) of the Fair Labor Standards Act of 1938. The Act at Section 216(b) authorizes one or more employees to bring an action under the Act on behalf of them and others similarly situated.
Rule 83, Federal Rules of Civil Procedure, authorizes courts, in any case not provided for by rule, to “regulate their practice in any manner not inconsistent with” federal or local rules.
Court authorization of notice serves the legitimate goal of avoiding a multiplicity of duplicative suits. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169, 170, 110 S. Ct. 482, 486, 107 L. Ed. 2d 480 (1989). Additionally, the benefits of the collective action provisions of Section 16(b) “depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so they can make informed decisions about whether to participate.” 493 US at 170, 110 S Ct at 486. Thus, the Court, in its discretion, may supervise such notice.
There are questions of law or fact common to the collective, the claims or defenses of the representative parties are typical of the rights or defenses of the collective, and the representative parties will fairly and adequately protect the interests of the collective.
Here, the prosecution of separate actions by or against individual members of the collective would create a risk of adjudications with respect to individual members of the collective which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; and the party opposing the collective has acted or refused to act on grounds generally applicable to the collective, thereby making appropriate final injunctive relief or corresponding declaratory relief concerning the collective as a whole.
Additionally, questions of law or fact common to the members of the collective predominate over any questions affecting only individual members. Thus, a representative collective action is superior to other available methods for the fair and efficient adjudication of the controversy.
            It is the responsibility of the Court to safeguard the rights of potential members in collective actions. See Hoffman-Laroche v. Sperling, 493 U.S. 165, 171 (1989). As Sperling noted, the judicial oversight of the communications with opt-in members protects against misleading communications that may influence the exercise of their rights. See id.
Moreover, not only does an employer’s filtering of information encourage opt-ins not to pursue their claims, but it also discourages current employees from joining collective actions. The courts have specifically recognized the dangers of disinformation and coercion with respect to joining an action that surrounds current employees. See E.E.O.C. v. Morgan Stanley & Co., Inc., 206 F. Supp. 2d 559, 563 (S.D.N.Y. 2002) (“potential class members are at a distinct disadvantage when approached by the parties in this case”); Burrell v Crown Cent. Petroleum, 176 F.R.D. 239, 243 (E.D. Tex. 1997) (where alleged class action has been filed, the court may limit the defendant’s ex parte contact with a class that is misleading or coercive).
In Kleiner v. First Nat’I Bank of Atlanta, 751 F.2d 1193 (11th Cir. 1985), the employer hatched a scheme to influence potential class members’ decisions whether to participate. The Eleventh Circuit declared:
Unsupervised, unilateral communications with the Plaintiff class sabotage the goal of informed consent by urging exclusion on the basis of a one-sided presentation of the facts, without opportunity for rebuttal. The damages from misstatements could well be irreparable.
Id at 1203.
In this case, the Defendant has established a “Bonus Rate” scheme to keep its employees from receiving the entire overtime rate due.  An example of the application of this scheme can be seen on Ms. Sampson’s paychecks – for example, Check Number 4378. This pay stub is attached to Exhibit C.
As noted in Check 4378, Ms. Sampson’s regular rate was $9.5, and her overtime rate was $14.25 (i.e., 1.5 x $9.5). However, the $14.25 overtime rate fails to include the “Bonus Rate” money earned that period of $60. Had that $60 been applied to her regular rate, Ms. Sampson’s overtime rate would have been higher.
Bonuses are required to be added to an employee’s regular rate when calculating overtime.  The F.L.S.A. requires inclusion in the standard rate of pay of all bonuses not otherwise excluded by section 7(e) of the F.L.S.A., 29 U.S.C. § 207(e).  By not including these “Bonus Rate” in the calculation of the overtime rate, the Defendant violated and is continuing to violate the F.L.S.A.
The Content of The Proposed Notice Is Appropriate
In light of the interest exhibited by the opt-ins and the fact that the legal basis for the claims is identical, Plaintiff seeks to maintain this lawsuit as a “collective action” pursuant to § 216 (b) of the F.L.S.A. Plaintiffs, therefore, request that the Court certify a collective action consisting of all current and former employees who worked as Caregivers and Companion Sitters for Defendant at any time during the past three years.
The proposed notice, attached hereto as Exhibit E, describes the circumstances of this case adequately and fairly. It puts potential plaintiffs on notice about the claims and allows them to participate. A Court-approved notice is appropriate because it helps prevent one of the parties trying to put “spin” on the litigation. Similarly, the consent satisfies the requirements of the F.L.S.A.
Courts have consistently required that an F.L.S.A. opt-in notice provided to current and former employees. See, e.g., Spell, Case No. 8:03-cv-1091-T-26TGW, at 1-3 (order granting the motion to provide F.L.S.A. opt-in notice to employees “who worked or currently work for the Defendants.”); see also Pendlebury v. Smellie v. Mount Sinai Hospital, Case No. 03 Civ. 0805, 2004 U.S. Dist. LEXIS 24006, at *24 (S.D.N.Y. November 29, 2004) (order allowing F.L.S.A. opt-in notice to provided to employees “who currently or formerly worked for [defendant] who at any time since [three years before the filing of the lawsuit], and through the date of [the order to provide notice to potential plaintiffs]”).
Under the F.L.S.A., a putative class member is not considered a plaintiff until they file a written consent to join. See 29 U.S.C. § 256; see also 29 C.F.R. § 790.21(b).
 
Expedited Discovery is Necessary
Plaintiffs have the right to seek to discover the identity of those who may be potential opt-ins. Courts across the country have almost universally permitted discovery of the information that the Plaintiffs seek. See Hammond v. Lowe’s Home Ctrs., Inc., 216 F.R.D. 666, 673 (D. Kan. 2003) (“other lower courts addressing whether to permit the discovery of the names and addresses of other similarly- situated employees in section 216(b) F.L.S.A. actions have almost universally permitted discovery of this information”) (collecting cases on this issue). Other courts have also allowed the discovery of this same information. See Tucker v. Labor Leasing, 155 F.R.D. 687, 690 (M.D. Fla. 1994) (granting plaintiffs motion to compel seeking names of all employees of defendant who were due overtime compensation); Spell, Case No. 8:03-cv-1091-T-26TGW, at 4 (same).
The Plaintiff seeks to discover the names, addresses, and phone numbers of any persons who work or have worked for Defendant as Caregivers and Companion Sitters during the past three years.  Plaintiff also seeks the dates of their employment. This is information that is discoverable in F.L.S.A. opt-in collective action litigation and will allow for the orderly notice of the other possible Plaintiffs.  A proposed Order is attached hereto as Exhibit F.
CONCLUSION
Based upon the foregoing, Plaintiffs request that the Court enter an Order: (1) authorizing this matter to proceed as a collective action; (2) approving Plaintiff s Notice to Potential Collective Action Plaintiffs; (3) requiring Defendant to produce the names, addresses, telephone numbers, and dates of employment of all potential collective action plaintiffs; (4) authorizing counsel to mail Court-approved notice to all potential collective action plaintiffs who were employed by Defendant for the three years before the filing of this suit with self-addressed postage-paid return envelopes; and (5) permitting the potential collective action plaintiffs to opt in to this lawsuit for ninety (90) days from the mailing of the Court-approved notice.
March 20, 2014
 
/s/ Michael Massey
Fla. Bar. No. 153680
[email protected]
Massey & Duffy, L.L.C.
855 E. Univ. Ave.
Gainesville, FL 32601
(352) 505-8900
 
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 20th day of March 2014, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send notice of the electronic filing to counsel for the Defendant.
/s/ Michael Massey
Fla. Bar. No. 153680
[email protected]
Massey & Duffy, L.L.C.
855 E. Univ. Ave.
Gainesville, FL 32601
(352) 505-8900
 

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