Motion to Facilitate

IN THE CIRCUIT COURT IN AND FOR

ALACHUA COUNTY FLORIDA

 

REDACTED,Plaintiff,v.

REDACTED

Defendants.

_________________________________________/

COLLECTIVE ACTION

 

 

      

 

PLAINTIFF’S MOTION TO FACILITATE NOTICE AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEREOF  [29 U.S.C. § 216(b)]

Plaintiff moves this court for an order to have this case proceed as a collective action for overtime compensation, under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b).

Specifically, the Plaintiff moves to (1) authorize this matter to proceed as a collective action; (2) authorize mailing of the proposed notice (attached hereto as Exhibit A) to all similarly situated persons employed by the Defendant during the three-year period immediately preceding the filing of this action; (3) require the Defendant to produce a computer-readable data file containing the names, addresses, and telephone numbers of all such potential opt in plaintiffs so that notice may be implemented; and (4) for an order prohibiting the Defendant from communication with any current or former hourly employees about matters covered by this suit.

 

 

I.  INTRODUCTION

The Plaintiff filed a collective action overtime complaint against the Defendant, pursuant to the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 216(b) and 28 U.S.C. §§ 1331, 1337.

In connection with the Plaintiff’s claims, the Plaintiff requested a list of the Defendant’s employees.  This list would have served at least two important functions:  1) it would lead to other witnesses (other than those whose affidavits are attached to the Plaintiff’s complaint) to the fact that the Defendant’s owners pressured its managers to cut employee hours, and 2) it would allow any additional persons to “opt-in” to this suit.  In response, the Defendant has objected to production of these lists.

Plaintiff seeks this Court’s authorization to have this case proceed as a collective action for overtime compensation, under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), on behalf of employees who worked for or currently work for the Defendants during the past three years.  To facilitate collective adjudication of these claims, Plaintiff further requests that notice be expeditiously mailed to all current and former non-exempt employees so that they can assert their claims on a timely basis as part of this litigation.

To participate in this case, the employees must affirmatively “opt in” by filing a written consent to join.  29 U.S.C. § 216(b); Garner v. G.D. Searle Pharm., 802 F. Supp. 418, 421 (M.D. Ala. 1991).  To decide whether to opt into the case, these employees should be apprised of the pendency of this case in a timely manner; otherwise, the claims of many will be barred or diminished by the FLSA statute of limitations.[1]  The notice sought here (attached to this memorandum as Exhibit A) provides objective, accurate information to class members regarding the nature of the lawsuit, the effect of the statute of limitations on their claims, and how to exercise their right to join.

II. OVERVIEW OF EMPLOYEES’ OVERTIME CLAIMS

The FLSA requires payment of overtime compensation to non-exempt employees when they work in excess of forty (40) hours in one week.  See 29 U.S.C. § 207(a); 29 C.F.R. § 778.101.  Overtime compensation must be paid at one and a half times the employee’s regular hourly rate, at a minimum.  See 29 U.S.C. § 207(a)(1).

The employees form a cohesive group of similarly situated employees.   Specifically, they are all nonexempt employees who worked for the Defendant within the past 3 years.

Plaintiff brought this action on behalf of herself and others similarly situated, for the recovery of all overtime compensation earned during the three years prior to filing this action.  Because each of the nonexempt employees were all denied overtime, they are similar.

A court ordered notice and opt in period will facilitate consolidated resolution of overtime claims based upon common law and facts.  Such collective adjudication will avoid the proliferation of individual lawsuits that could result in disparate rulings and wasting of judicial and party resources.  For these reasons, the Court should promptly authorize this case to proceed as a collective action, order the identification of the potential opt-ins, and authorize the issuance of the proposed notice to be mailed to all current and former employees employed by the Defendant in the past three years.

 

III.  ARGUMENT

A. The Court Is Authorized to Issue Notice to the Potential Opt Ins.

The FLSA’s “collective action” provision allows one or more employees to bring an action for overtime compensation “in behalf of himself or themselves and other employees similarly situated.”  29 U.S.C. § 216(b); Dybach v. State of Fla. Dept. of Corrs., 942 F.2d 1562, 1567 (11th Cir. 1991).  “The evident purpose of the Act [FLSA] is to provide one lawsuit in which the claims of different employees, different in amount but all arising out of the same character of employment, can be presented and adjudicated, regardless of the fact that they are separate and independent of each other.”  Shain v. Armour & Co., 40 F. Supp. 488, 490 (W.D. Ky. 1941).

To serve the “broad remedial purpose” of the FLSA, courts are afforded the power to give notice to other potential class members to “opt in” to the plaintiffs’ case.  Dybach, 942 F.2d at 1567 (quoting Braunstein v. Eastern Photographic Lab., Inc., 600 F.2d 335, 336 (2nd Cir. 1978)); see also Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 170, 110 S. Ct. 482 (1989) (“[a] collective action allows . . . plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources”).  Court facilitation of a section 216(b) collective action also serves the goal of “efficient resolution in one proceeding of common issues of law and fact arising from the same alleged . . . activity.”  Hoffman-La Roche, 493 U.S. at 170.  Additionally, early court authorized notice protects against “misleading communications” by the parties, resolves the parties’ disputes regarding the content of any notice, prevents the proliferation of multiple individual lawsuits, assures that joinder of additional parties is accomplished properly and efficiently, and expedites resolution of the dispute.  Id. at 170-172; Garner, 802 F. Supp. at 422; see also Yates v. Wal-Mart Stores, Inc., 58 F.Supp.2d 1217, 1218 (D.Colo. 1999) (“judicial efficiency demands” consolidation of individual overtime claims in a collective action).  In the present case, prompt notice also serves the critical function of advising potential claimants to file their consents pursuant to section 216(b) before the running of the applicable FLSA statute of limitations.

For an opt in class to be created under section 216(b), an employee need only show that (s)he is suing his/her employer for herself/himself and on behalf of other employees “similarly situated.”  Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996).  Plaintiffs’ claims and positions need not be identical to the potential opt ins; they need only be similar.  Id.; Tucker v. Labor Leasing, Inc., 872 F. Supp. 941, 947 (M.D. Fla. 1994).  Plaintiffs need only demonstrate “a reasonable basis” for the allegation that a class of similarly situated persons may exist.  Grayson, 79 F.3d at 1097.

The standard for collective action notice “is a lenient one.’”  Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995).  “It is considerably ‘less stringent’ than the proof required pursuant to Fed. R. Civ. P. 20(a) for joinder or Fed. R. Civ. P. 23 for class certification.”  Grayson, 79 F.3d at 1096.

Discovery is not necessary for this Court to issue notice.  At the notice stage, courts determine whether plaintiffs and potential opt-ins are “similarly situated” based upon detailed allegations in a pleading and/or facts supported by affidavits.  Grayson, 79 F.3d at 1097; Mooney, 54 F.3d at 1213-14; Brooks v. Bellsouth Telecomm., 164 F.R.D. 561, 568 (N.D. Ala. 1995); Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 406-07 (D.N.J. 1988), aff’d, 493 U.S. 165 (1989).  Defendant’s rebuttal evidence does not bar section 216(b) notice; plaintiffs’ substantial allegations need only successfully engage the employer’s affidavits to the contrary.  See Grayson, 79 F.3d at 1099 n.17.

Once the court makes the preliminary determination that the potential plaintiffs are similarly situated, the case proceeds as a collective action throughout discovery.  See Hoffman v. Sbarro, 982 F. Supp. 249, 261-262 (S.D.N.Y. 1997); Herrera v. Unified Mgmt, 2000 WL 1220973, *1 (N.D. Ill. 2000).  Discovery is relevant thereafter both as to the merits of the case and for the second step in the collective action procedure, where the court evaluates conflicting evidence developed in discovery to test the validity of the preliminary decision made at the notice stage.  See Herrera, 2000 WL 1220973, *1 (notice is sent out and then “after discovery has taken place, the court determines whether the class should be restricted based on the ‘similarly situated’ requirement of the FLSA.”); Harper v. Lovett’s Buffet, Inc., 185 F.R.D. 358, 365 (M.D. Fla. 1999) (“[s]ubsequent discovery may reinforce or undermine” the preliminary finding of similarly situated).  Indeed, allowing early notice and full participation by the opt ins, “assure[s] that the full ‘similarly situated’ decisions is informed, efficiently reached, and conclusive.”  Sperling, 118 F.R.D. at 406.  Once the notice and opt in period is complete, the Court will have the benefit of knowing the actual makeup of the collective action.  Thus, early notice will help the court to manage the case because it can “ascertain the contours of the action at the outset.”  Hoffman-La Roche, 493 U.S. at 172-73.

B. Issuance of Notice is Appropriate in This Case

 

Plaintiff readily meets the liberal standard for court facilitation of a FLSA collective action.  As mentioned in the Plaintiff’s affidavit in support of this Motion (attached hereto as Exhibit B), the Plaintiff was denied overtime compensation because the owners of the Defendant corporation encouraged and forced its managers to cut the time of the crewmember employees to prevent them from obtaining overtime.  Based upon the Defendant’s own admission during the hearing of June 5, 2007, these affidavits constitute sufficient evidence for the establishment of a collective action.  See Transcript of hearing on June 5, 2007, pages 7-8 (wherein Defendant’s counsel admitted that, based on the affidavits attached to the Plaintiff’s complaint, “there are few arguments that the defendant can be successful on in arguing that [the Plaintiff] doesn’t have the right to the initial collective action establishment”).  Thus, the exhibits attached as Exhibit A to the Plaintiff’s complaint (which have been reattached to the Plaintiff’s affidavit filed in support of this Motion) create a substantial issue of fact as to whether the Defendant was cutting the hours of its employees to subvert the FLSA.

  1. There Are Other Similarly Situated Employee Employees Who May Desire to Opt In.

 

One opt-in, Ms. Stalking, has already opted into this suit.  In the Plaintiff’s affidavit (attached as Exhibit B), the Plaintiff states that she believes other will wish to opt-in to this suit.   These potential opt-ins should be afforded the opportunity to have attorney representation and opt-in to this suit.

  1. Plaintiff Has Carried His Burden of Demonstrating a Reasonable Basis for a Collective Action.

 

Collective action authorization and notice to the class is well warranted here, as Plaintiff has more than demonstrated a “reasonable basis” for the class allegations.  See Grayson, 79 F.3d at 1097.  Thos affidavits (reattached to the Plaintiff’s affidavit in support of this Motion) state that the Defendant had a policy of reducing its crewmember’s hours to reduce the amount of overtime paid. Such a showing more than satisfies the “lenient” standard for collective action notice.  Mooney, 54 F.3d at 1213-14; Harrison, 1998 U.S. Dist. LEXIS 13131, *8, *12.

This evidentiary showing of the employees’ common character of employment well exceeds the quantum of proof typically required for issuance of notice.  Cf. Tucker, 872 F. Supp. at 943 (collective action authorized on the evidence provided by one named plaintiff and two subsequent opt ins); Garner, 802 F. Supp. at 422 (identification of 40 women who could make out prima facie case of wage discrimination justified collective action and notice).

In sum, Plaintiff need only show a colorable basis for a representative suit, which can be made out with a “modest factual showing” that the plaintiffs are similarly situated to those for whom they seek notice.  Realite v. Ark Rests. Corps., 7 F.Supp.2d 303, 306 (S.D.N.Y. 1998).  Plaintiff here makes a strong – not just a “modest” – showing of similarity of claims.

Furthermore, the Defendant cannot claim that the Plaintiff has failed to obtain the testimony of additional witnesses in this case because the Defendant has refused to provide its employee lists.  These other employees are potential witnesses to these acts, and the Defendant’s refusal to disclose the names of these other employees makes it near impossible for the Plaintiff to obtain additional discovery and witnesses to the acts alleged.

C. Notice Must Be Expedited Due to the Running of the Statute of Limitations and the Defendant’s Contact with the Potential Opt-Ins.

Notice to the class should be expedited in this action to prevent the wasting of the employees’ claims due to the FLSA statute of limitations provisions.  The employees’ claims are governed by a two year statute of limitations or, in the case of “willful violation,” a three year statute of limitations.  29 U.S.C. § 255(a); Knight, 19 F.3d at 582.  The statute of limitations is not tolled for any individual class member until that individual has filed a written consent to join form with the Court.  29 C.F.R. § 790.21(b)(2); Grayson, 79 F.3d at 1105-06. The information contained in the proposed notice (Exhibit A) is thus essential to allow employee employees to act to protect their interests.

Without notice, they are unaware of the pendency of the action or of their rights to opt in, and they are powerless to prevent their claims form wasting away.  Moreover, as many of the potential opt ins no longer work for the Defendant, their whereabouts will be increasingly difficult to track and evidence may be lost with the passing of time.  Therefore, notice should be expedited in this action to the maximum extent feasible and should be sent to all “similarly situated” employee employees employed during the maximum three year potential liability period.  See Belcher, 927 F. Supp. at 252 (ordering notice to all employees who were employed within the maximum three year statute of limitations); Herrera, 2000 WL 1220973, *2 (same).

D. The Proposed Notice Is Fair and Adequate.

A collective action depends “on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.”  Hoffmann-LaRoche, 493 U.S. at 170.  Court authorized notice prevents “misleading communications.”  Id. at 172; Garner, 802 F. Supp. at 422.

The Plaintiff’s proposal for court approved notice (Exhibit A) to the potential opt ins is “timely, accurate, and informative,” as required.  Hoffmann-LaRoche, 493 U.S. at 172.  It provides notice of the pendency of the action and of the opportunity to opt in.  Plaintiff’s legal claims are accurately described.  The notice provides clear instructions on how to opt in and accurately states the prohibition against retaliation or discrimination for participation in an FLSA action.  See 29 U.S.C. § 215(a)(3); Reich v. Davis, 50 F.3d 962, 964 (11th Cir. 1995).

Plaintiff proposes that the notice and consent forms be mailed by first class mail to all current and former employees for the three year period preceding the filing of this lawsuit.  Those class members interested in participating would be required to file their consents with the Court within 120 days of the mailing.  This is consistent with established practice under the FLSA.  See Hoffmann-LaRoche, 493 U.S. at 172; Garner, 802 F. Supp. at 422 (cut off date expedites resolution of action); Hipp, 164 F.R.D. at 576 (M.D. Fla. 1996) (120 day filing period); Belcher, 927 F. Supp. at 252-55 (exemplar of company wide notice).

In short, the proposed notice (Exhibit A) is fair and accurate and should be approved for distribution.  Notice was permitted on an expedited basis in Alba v. Madden Bolt Corp., 2002 WL 32639827, *1 (S.D. Tex. 2002) and should be permitted in this case as well.

E. The Defendant Must be Forced to Turn Over a Mailing List.

Early discovery of a mailing list for class members is a routine component of notice in collective actions.  See Hoffmann-LaRoche, 493 U.S. at 170 (“District Court was correct to permit discovery of names and addresses . . .”); Grayson, 79 F.3d at 1111 (ordering production of mailing list); Belcher, 927 F. Supp. at 252 (same); Hipp, 164 F.R.D. at 576 (same).  Indeed, such a mailing list is essential to the timely notice.  See Hoffman-LaRoche, 493 U.S. at 170 (“timely notice” required).  The Defendant should therefore be ordered to immediately (within the next 10 days) produce the last known addresses, phone numbers and birth dates for all employees who worked (or currently work) for the Defendant within three years of the filing of this action.  The immediate production of this information was ordered in Alba v. Madden Bolt Corp., 2002 WL 32639827, *1 (S.D. Tex. 2002), and should also be ordered in this case. This should not be a problem, as the Defendant should agree to produce this information once the Court grants the instant Motion.

IV.  CONCLUSION

For the foregoing reasons, the Court should grant this motion to:  (1) authorize this matter to proceed as a collective action; (2) authorize mailing of the proposed notice (Exhibit A) to all similarly situated persons employed by the Defendant in the position of employees during the three-year period immediately preceding the filing of this action; (3) require the Defendant to produce a computer-readable data file containing the names, addresses, social security and telephone numbers of all such potential opt in plaintiffs so that notice may be implemented; and (4) for an order prohibiting communication with any current or former hourly employees about matters which touch or concern the issues raised in this suit.

 


[1] Under the FLSA, the statute of limitations applicable in a given action may be two years or, as Plaintiffs allege herein, three years due to Defendant’s willful violations of the FLSA.  See Knight v. Columbus, GA, 19 F.3d 579, 582 (11th Cir.), cert. denied, 513 U.S. 929 (1994); 29 U.S.C. § 255(a).