Summary
In Torres, the Western District of Texas granted a motion for conditional certification of an FLSA class, but, rather than requiring the defendant to disclose contact information to the plaintiff, the court required the defendant to send notice to its employees.
Summary of this case from Yoakum v. PBK Architects, Inc.Opinion
Civil No. EP-03-CA-113(KC).
December 17, 2003
ORDER
Pending before this Court are plaintiffs' motion for judicially certified notification of potential plaintiffs (Doc. No. 12), defendant's motion to strike plaintiffs affidavits in support of petition for judicially certified notification (Doc. No. 18) and plaintiffs' motion to vacate the deadline to join additional parties (Doc. No. 42).
I. MOTION FOR JUDICIALLY CERTIFIED NOTIFICATION OF POTENTIAL PLAINTIFFS
The present action involves alleged violations of the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U.S.C. § 201(b). Plaintiffs' motion includes a tripartite request: (1) authorization to proceed as a collective action, (2) authorization for mailing of proper notice to all of defendants employees elsewhere whose hours of work were regulated by the matrix program over the past three years, and (3) issuance of an order to produce a computer-readable data file containing personnel data to facilitate notice.
The FLSA states that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). This prohibition does not apply to persons employed in a bona fide executive, administrative, or professional capacity. 29 U.S.C. § 213(a)(1).
Unlike many class actions, FLSA collective actions are not certified pursuant to the present version of Federal Rule of Civil Procedure 23. Donovan v. Univ. of Tex., 643 F.2d 1201, 1208 (5th Cir. 1981). Unlike Rule 23's class "opt-out" provision, the FLSA follows an "opt-in" procedure, Mooney v. Aramco Servs., 54 F.3d 1207, 1212 (5th Cir. 1995), through which a subsequent judgment binds only those consenting to inclusion as a plaintiff, 29 U.S.C. § 256(b). The "opt-in" procedure of the FLSA permits certification of a collective action under § 216(b), allowing one or more employees to pursue an action on behalf of others similarly situated. 29 U.S.C. § 216(b).
While the Fifth Circuit has discussed two different procedures that may be employed in certifying collective actions, it has not placed its imprimatur on any particular procedure. Mooney, 54 F.3d at 1216 ("[w]e find it unnecessary to decide which . . . of the competing methodologies should be employed in making [a] . . . class certification decision"). A review of the procedures employed in cases addressing whether to certify a collective action reveals that a two-tiered approach tends to be the method of choice. Accord Wynn v. Natl Broad. Co., 234 F. Supp.2d 1067, 1082 (C.D. Cal. 2002). Under this approach, a court applies a fairly lenient standard, conditionally certifying a class based only on the pleadings and affidavits submitted, provided plaintiff can meet the substantive requirements of 29 U.S.C. § 216(b). Hipp v. Liberty Natl. Life Ins., 252 F.3d 1208, 1218 (11th Cir. 2001). Once conditionally certified, putative class members are afforded notice and an opportunity to "opt-in". Id. Later, a final decision is made on proceeding as a collective action based on all evidence gathered through discovery. Id.
The second procedure, discussed in Mooney, is the spurious class action procedure eliminated from Rule 23. Mooney, 54 F.3d at 1214. Through such procedure, a court considers the general Rule 23 requirements of "numerosity", "commonality", "typicality" and adequacy of representation to determine whether a class should be certified, and the procedure is distinguishable from Rule 23 class actions only by virtue of the non-binding effect of the judgment on those who elect not to "opt-in". Id. There appear also to be a variety of other procedures not discussed in Mooney representative of the variety of potential approaches available to a court in resolving § 216(b)'s similarly situated requirement. See, e.g., Bayles v. Am. Med. Response, 950 F. Supp. 1053, 1058 (D. Col. 1996); Krueger v. N.Y. Tel. Co., 163 F.R.D. 433, 445 (S.D.N.Y. 1995) (limiting analysis to commonality and typicality requirement of Rule 23). As this Court concludes that the ad hoc determination described in Mooney is the appropriate procedure in the present case, it need not analyze the facts under these alternative procedures.
The threshold issue in deciding whether to conditionally certify a collective action in an FLSA action is whether the plaintiff has demonstrated that potential class members are similarly situated. Id. Courts have held that plaintiffs can meet this burden by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law. Jackson v. N.Y. Tel. Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995) (at the preliminary notice stage, plaintiffs are only required to demonstrate a factual nexus that supports a finding that potential plaintiffs were subjected to a common discriminatory scheme). In other words, the court must be satisfied that there is a basis to conclude that questions common to a potential group of plaintiffs would predominate a determination of the merits in this case.
The gravamen of the present complaint is that plaintiffs were made to work in excess of 40 hours without receiving the overtime rate required by the FLSA. The consent forms of Hector Tovar and Eduardo Torres, attached to the complaint, and the later filed forms of Manuel Torres, Jr., and Maria Montenegro, indicate only that the plaintiffs "believe [they] are entitled to additional straight time and overtime wages [from defendant] for the hours [they] have worked in excess of forty hours per week." In their brief, plaintiffs indicate that 20 potential plaintiffs have been identified in El Paso. Pls Br. at 6. The affidavits submitted attest to the existence of a software based program known as "matrix", which authorizes work hours in proportion to sales volume and thereby discourages stores from claiming unauthorized overtime hours. Tovar aff. at 3; E. Torres aff. at 1. As such, time cards were edited to reflect fewer hours than actually were worked. Tovar aff. at 3; E. Torres aff. at 2. Furthermore, both Tovar and Eduardo Torres attest to nationwide violations, having been notified of such violations through encounters with other employees employed by defendant outside El Paso. Tovar aff. at 4; E. Torres aff. at 2.
Having considered the allegations in the complaint and supporting affidavits, this Court concludes that plaintiffs have adduced sufficient evidence to justify conditional certification of a collective action by defendants El Paso employees consistent with the FLSA violation alleged. As will be discussed below, the El Paso employees affidavits submitted do not justify a multi-state collective action. Plaintiffs argument that the nature of the software itself tends to support a pervasive problem throughout the country is not well-founded. It could just as easily be said the allegations may be indicative of one or a few of defendants locations that flout working hour standards incorporated into distributed payroll software.
Plaintiffs second request is for notice to other potential litigants. Notice is hereby ordered for all of defendants El Paso employees. Plaintiffs have not carried their burden of justifying a national collective action. While the authority of district courts to authorize the sending of notice to potential class members in a collective action brought pursuant to § 216(b) is not disputed, Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989), there is no requirement that a court order notification of potential plaintiffs and should do so only in the appropriate case, id. at 169.
Left to determine whether the present case is an appropriate case for a broader action, this Court must conclude that the affidavits of local employees who restate, without attribution, the concerns of distant employees and theorize that the problem is widespread will not suffice. Mere allegations will not suffice; some factual evidence is necessary to justify an action on a national scale. Bernard v. Household Int'l, Inc., 231 F. Supp.2d 433, 435 (E.D. Va. 2002). While this Court does not necessarily agree with defendants reference to Federal Rule of Civil Procedure 56(e) for the contents of an affidavit outside the context of a motion for summary judgment, the principle espoused therein, that an affiant have personal knowledge of the facts to which he or she attest, is neither inappropriate under the present procedure nor inconsistent with general rules of evidence in federal proceedings. See FED. R. EVID. 602 ("[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter")
With that said, the above collective action and order requiring notice to potential plaintiffs shall be limited to defendants El Paso employees. Plaintiffs are granted leave to move for reconsideration of the scope of the collective action and notice order within thirty days provided they can produce some evidence of the practices outside of El Paso, at which time this Court will determine whether the scope of the orders should be modified accordingly.
Plaintiffs third request is for a computer-readable data file containing the names, addresses, social security numbers and telephone numbers of potential "opt-in" plaintiffs. Plaintiffs argue that such is necessary to avoid extensive discovery. This Court is disinclined to grant this request as made, given privacy concerns implicit in information derived from personnel records, Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir. 1994), and will instead require that defendant itself issue notice to its employees as follows.
Defendant shall send a letter to all El Paso employees employed since January 2000, notifying such employees of the specific FLSA violation alleged and providing that any affected employee may "opt-in" to the present action within forty-five days of mailing by contacting plaintiffs counsel at a designated address. The letter shall be a form letter approved by plaintiffs counsel, with form fields completing the name and address of employees and a respond deadline forty-five days beyond the date of mailing. Defendant will not be ordered to produce detailed information of its El Paso employees, but will instead provide a list of all employees to whom the letters were sent, the date of mailing, which should be the same day unless good cause is shown for a longer period and a certificate of mailing signed by counsel of record. This procedure should both avoid the promulgation of confidential information outside the office and preclude concerns inherent in the direct solicitation of prospective clients by attorneys through mass mailings.
Upon completion of the mailing, the parties shall notify this Court of the deadline date for response. At that time, the parties shall submit a revised scheduling order compliant with this Courts order on pretrial deadlines.
II. DEFENDANT'S MOTION TO STRIKE PLAINTIFFS AFFIDAVITS
Defendant argues that the affidavits submitted in support of a collective action should be stricken for lack of personal knowledge. As stated in the above ruling, to the extent the affidavits attest to facts for which the affiant lacks personal knowledge, they are not considered as supporting plaintiffs case for a national collective action or for expansive notice to potential plaintiffs. Much of the remaining substance of the affidavits is, however, not improper and based on personal knowledge and thus the affidavits will not be ordered stricken en toto. The motion to strike is denied.
III. PLAINTIFFS' MOTION TO VACATE DEADLINE TO JOIN ADDITIONAL PARTIES
In light of the scheduling issues discussed in Part I supra, plaintiffs' motion to vacate the deadline for joining additional parties is hereby vacated.
IV. CONCLUSION
Plaintiffs' motion for judicially certified notification of potential plaintiffs (Doc. No. 12) is granted in part consistent with the foregoing opinion. Defendant's motion to strike plaintiffs affidavits in support of petition for judicially certified notification (Doc. No. 18) is denied. Plaintiffs' motion to vacate the deadline to join additional parties (Doc. No. 42) is granted.
SO ORDERED.