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denying motion for conditional certification where plaintiff did not present any evidence refuting defendant's written policy that employees were admonished to take lunch breaks or testimony that drivers were informed of their lunch period
Summary of this case from Behnken v. Luminant Mining Co.Opinion
Civil Action No: SA-05-CA-0078-XR.
May 16, 2005
ORDER
On this date the Court considered the following: (1) Plaintiff's Motion for an Order Authorizing this Action to Proceed as a Collective Action (docket no. 9) pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b); (2) Plaintiff's Unopposed Motion to Amend Plaintiff's Complaint (docket no. 11); and (3) Plaintiff's First Amended Motion for an Order Authorizing this Action to Proceed as a Collective Action (docket no. 12). The Court GRANTS the Unopposed Motion to Amend Plaintiff's Complaint (docket no. 11). The Court DENIES as moot Plaintiff's [Original] Motion for an Order Authorizing this Action to Proceed as a Collective Action (docket no. 9). The Court finds that the allegations presented by the plaintiff fail to sufficiently demonstrate the existence of a "similarly situated" class of employees and Plaintiff's amended complaint and affidavits in support thereof contain unsupported assertions of improper lunch break adjustments. Accordingly, the Court DENIES Plaintiff's first amended motion (docket no. 12).
I. Background
Plaintiff was formerly employed as a driver for Defendant. He alleges that he "was paid $90 per day for an eight-hour day, or $11.25 per hour." He originally alleged that he and other drivers were required to work in excess of forty (40) hours per week, but that he and others were not paid their overtime hours at a rate of one and one-half times their regular rate. Plaintiff has dropped that claim in his first amended complaint. Plaintiff further alleges that Defendant "adjusted" his time record, as well as those of other drivers, "to reduce overtime hours reported by thirty minutes if the employee worked less than twelve hours in a day and by one hour if the employee worked twelve hours or more in a day. Defendant `adjusted' the time records ostensibly for lunch breaks, although Plaintiff and the FLSA employees rarely took lunch breaks."
Although not originally mentioned by either party in this case, the parties have now apparently become aware that 29 CFR § 778.112 has been upheld by the Fifth Circuit. See Dufrene v. Browning-Ferris, Inc., 207 F.3d 264 (5th Cir. 2000) and Hartsell v. Dr. Pepper Bottling Co. of Texas, 207 F.3d 269 (5th Cir. 2000).
II. ANALYSIS
A. Collective Actions Generally 29 U.S.C. § 216(b) permits an employee to bring an action against his employer "[on] behalf of himself . . . and other employees similarly situated." However, "[n]o employee shall be a party plaintiff to such an action unless he gives his consent in writing to become a party and such consent is filed in the court in which such action is brought." Id. Therefore, unlike a Rule 23 class action allowing plaintiffs to "opt out" of the class, a § 216(b) plaintiff must first "opt in" to the class. A representative plaintiff cannot automatically join similarly situated persons.
Determining whether a claim should go forward as a collective action under 29 U.S.C. § 216(b) has generally been viewed as requiring one of two analyses. One method of analysis is the two-stage approach of Lusardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J. 1987). Under the two-stage approach, the District Court should initially determine, based on the pleadings and affidavits, whether notice of the action should be given to potential class members. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995). This initial determination is not demanding and will generally result in conditional certification of a representative class to whom notice is sent and who receive an opportunity to "opt in." Id. at 1214. The case then proceeds through discovery as a representative action. Id. Once discovery is completed, the defendant will typically file a motion for decertification. At this second stage of the analysis, the District Court should make a factual determination as to whether the putative class members are similarly situated. Id. If so, then the representative action may proceed; if not, then the class should be decertified, the opt-in plaintiffs dismissed, and the class representatives should be allowed to proceed on their individual claims. Id.; Johnson v. TGF Precision Haircutters, Inc., 319 F. Supp. 2d 753, 754-55 (S.D. Tex. 2004). The other method of analysis it to treat the collective action determination as coextensive with the class action determination under FED. R. CIV. P. 23. See LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975). The two-stage approach seems to be the method of analysis more generally accepted and is the one that the Court will apply in this case.
Under the two-stage approach, the Court should make an initial determination as to whether notice of the plaintiff's action should be given to potential class members.
B. Defendant's "adjustment" of time records
As stated above, Plaintiff alleges that Defendant "adjusted" his time record, as well as those of other drivers, "to reduce overtime hours reported by thirty minutes if the employee worked less than twelve hours in a day and by one hour if the employee worked twelve hours or more in a day. Defendant `adjusted' the time records ostensibly for lunch breaks, although Plaintiff and the FLSA employees rarely took lunch breaks."
Defendant responds that it has a policy requiring that all employees should take a half-hour lunch break. If employees work more than 12 hours in one day, they are required to take a one hour lunch break. Drivers are informed that if they work through their lunch period, they are to advise management of that fact so they can be compensated for that working time. See Affidavit of Mel Kemp.
"Bona fide meal periods are not worktime." 29 C.F.R. § 785.19. Accordingly, an employer is not required to pay an employee for any bona fide meal period. For the period to be classified as a meal time, however, an employee "must be completely relieved from duty for the purposes of eating regular meals." Id.
Any analysis of lunch breaks will result in this court and any jury hearing individual testimony regarding whether drivers regularly took lunch breaks, or only occasionally. If they did not take lunch breaks, the fact finder will need to hear the dates each driver actually worked through lunch and whether they needed to be compensated for an extra 30 minutes or one hour for the particular day. Further, the fact finder will need to hear whether any driver advised management that they worked through their break and required compensation.
Plaintiff presents no evidence refuting Defendant's written policy that employees were admonished to take their lunch breaks. Further, Plaintiff presents no evidence refuting the General Manager's testimony that drivers are informed that if they work through their lunch period, they are to advise management of that fact so they can be compensated for that working time.
Given that the evidence presented by Plaintiff fails to sufficiently demonstrate the existence of a "similarly situated" class of employees and Plaintiff's complaint and affidavits in support thereof contain unsupported assertions of improper lunch break adjustments, the Court declines to certify a collective action on the issue of improper lunch break adjustments. See H R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) ("unsupported assertions of wide-spread FLSA violations, such as the ones made here, did not satisfy the movant's 216(b) burden").
III. Conclusion
The Court GRANTS the Unopposed Motion to Amend Plaintiff's Complaint (docket no. 11). The Court DENIES as moot Plaintiff's [Original] Motion for an Order Authorizing this Action to Proceed as a Collective Action (docket no. 9). The Court finds that the allegations presented by the plaintiff fail to sufficiently demonstrate the existence of a "similarly situated" class of employees and Plaintiff's amended complaint and affidavits in support thereof contain unsupported assertions of improper lunch break adjustments. Accordingly, the Court DENIES Plaintiff's first amended motion (docket no. 12).