Summary
finding variances among affidavits insufficient to defeat motion for certification where each affidavit alleged the same early start requirement for employees
Summary of this case from Threatt v. Residential CRF, Inc. (N.D.Ind. 2005)Opinion
Case No. 1:04-cv-0049-DFH-TAB.
March 15, 2005
ENTRY ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION, MOTION FOR APPROVAL OF CLASS NOTICE, AND MOTION TO STRIKE
Plaintiffs Patricia Veerkamp and Patricia Tinsley are former employees of defendant U.S. Security Associates, Inc. ("USSA"). USSA is in the business of providing on-site security services to companies across the nation. It hires and provides security personnel for various business operations in Indiana, including the Federal Express regional hub at the Indianapolis International Airport, where Veerkamp and Tinsley worked. Veerkamp and Tinsley claim that USSA required security officers to report to work fifteen minutes prior to the actual start of a shift, without paying the officers for those fifteen minutes. They claim that USSA's failure to pay them for the fifteen minutes per day is contrary to Indiana common law, the Indiana Wage Payment statute, Ind. Code § 22-2-5-1, and the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206, 207. Though they also claim that USSA engaged in additional unfair or illegal practices, the early arrival requirement is the heart of their case.
Plaintiffs also contend that USSA has enforced some form of early arrival requirements at locations all across the country. In support, plaintiffs have submitted the affidavits of other USSA employees who worked as security officers or supervisors at various locations in Indiana, at two locations in New Jersey, and two locations in Ohio. They have also submitted Department of Labor documents with details from the department's investigations into alleged FLSA violations at other USSA locations in Georgia, North Carolina, and Florida. These documents indicate that some employees were not paid minimum and overtime wages consistent with the requirements of the FLSA. On the strength of these affidavits and other documents, plaintiffs have moved to allow this case to proceed as a collective action under the FLSA and also to certify that part of the case seeking recompense under Indiana law proceed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Defendant USSA opposes both the collective action under the FLSA and the proposed class action.
I. FLSA Collective Action
Pursuant to the FLSA, employees may bring an action for damages on behalf of themselves and those similarly situated if an employer has failed to pay the prescribed minimum wage or failed to pay overtime. 29 U.S.C. § 216(b). Actions brought under 29 U.S.C. § 216(b) are commonly referred to as "collective actions" or "representative actions." They differ significantly from Rule 23 class actions in that the potential plaintiffs in a collective action must "opt in" or choose to participate after receiving notice, as opposed to "opt out" or choose not to participate, as is the case with a Rule 23(b)(3) class action. See, e.g., Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989). Under the FLSA, no employee shall be a party plaintiff to any collective action unless he or she files a written consent to joinder in the court where that action is pending. 29 U.S.C. § 216(b); Harkins v. Riverboat Services, Inc., 385 F.3d 1099, 1101 (7th Cir. 2004).
In deciding whether an FLSA action may proceed as a collective action, the court must review the affidavits or other evidence submitted by plaintiffs to decide if they have made an initial threshold showing that they are similarly situated to the employees on behalf of whom they are seeking to pursue claims. Camper v. Home Quality Management, Inc., 200 F.R.D. 516, 519 (D. Md. 2000). If this relatively modest requirement is met, the court can then approve a notice to be sent to potential plaintiffs who may have been subject to a common policy or plan said to violate the FLSA, reserving any final determination on the issue of whether the employees are similarly situated until later. Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn. 1991).
Plaintiffs ask the court to allow notice of the collective action to be sent to:
Present and former security officers employed by U.S. Security Associates, Inc. From December 11, 2000 until the present and who U.S. Security Associates, Inc., required to report to work prior to the start of their shift and did not pay minimum, regular or overtime wages for the time spent present at work before their shifts.
USSA opposes notice of any kind being sent, but is particularly critical of the proposal for a nationwide collective action. USSA claims that the evidence submitted by plaintiffs shows at most a few isolated incidents where company policy was ignored.
USSA points to slight differences in the affidavits of the named plaintiffs and those received from three employees in Ohio and two employees in New Jersey. For example, USSA notes that only one of the non-Indiana affiants specifically states that he was not paid for time which should have amounted to overtime and another employee affiant does not claim that he was not paid for time spent at lunch or on break, which may have made up for the unpaid time he spent on the job prior to the actual start of the paid shift. USSA also argues that the Department of Labor investigation documents support denial of a collective action. The Florida and North Carolina investigation documents do not peg the FLSA violations specifically to an "early start" policy of any sort. All the documents suggest that any violations were corrected, and many indicate that investigations by the department at other USSA sites proved uneventful.
The court is not impressed at this stage with defendant's effort to differentiate among the various employee affidavits. They all allege that an early start requirement was being enforced at each affiant's workplace. Defendant's contentions with regard to the Department of Labor documentation are more to the point. All the violations reported in the documents were cured and the employees received any back-pay due, while the Georgia and North Carolina investigative documents suggest that most other locations of USSA operation in those states were found to be without violation. This leaves plaintiffs with the affidavits of three Ohio employees and two New Jersey employees as the only significant evidence to support a request that notice be sent nationwide or outside Indiana. The court is not persuaded that this level of evidentiary support is sufficient to launch a nationwide case. If other USSA employees or former employees have complaints under the FLSA, they may assert them closer to home.
Also, plaintiffs' proposal to combine a national collective action with a statewide class action for state law claims would set up a potentially confusing case in which Indiana employees may seek redress with the full array of remedial theories while opt-in plaintiffs from other states would be limited to only the FLSA. This problem appears likely to be thorny because, if plaintiffs can prove their claims, it may take a combination of federal and state law remedies to recover full relief. If plaintiffs can prove that USSA required security officers to be at work fifteen minutes prior to the official shift for which they were paid, those fifteen minutes of extra work time may: (1) reduce the actual amount of pay received to an amount below the minimum wage in violation of the FLSA; (2) cause the employee to have worked in excess of forty hours for the week, triggering the overtime pay provisions of the FLSA; or (3) simply be fifteen minutes of work time that were not paid as agreed and for which wages and penalties are due under state law. The fact that some plaintiffs may need to invoke more than one legal theory does not necessarily show that those individuals are not similarly situated or that certification of the class action is inappropriate. See, e.g., Carnegie v. Household Intern., Inc., 376 F.3d 656, 661 (7th Cir. 2004). The different available theories do suggest, however, that the court needs to proceed cautiously to keep the litigation in as manageable a form as is consistent with the requirements of the FLSA and the Federal Rules of Civil Procedure.
While plaintiffs' evidence in support of a national collective action is not convincing, the evidence in support of a notice that would give all employees of USSA in Indiana an opportunity to opt in to a collective action is more than sufficient to meet the modest requirements of the FLSA. Plaintiffs have submitted affidavits from USSA employees or supervisors who worked at nine or more locations across Indiana. All claim that there was an early start requirement in place, communicated either orally or in writing. Plaintiffs have come forward with sufficient evidence to support a colorable claim that a policy existed within the state to require employees to show up early for their shifts without pay. Even two supervisors have testified to such a policy. Accordingly, the court finds that notice of a collective action should be sent to the more than 1200 USSA security officers who worked in Indiana from December 11, 2000 to the present.
The December 11, 2000 date is used because that would include all employees who worked within the three year statute of limitations for willful violations of the FLSA.
II. Rule 23 Class Action Certification
Plaintiffs also seek certification of a plaintiff class pursuant to Fed.R.Civ.P. 23(b)(3) with respect to their state law claims. Rule 23 would allow the lawsuit to move forward as a class action only if:
[T]he class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class [and] [t]he court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Fed.R.Civ.P. 23(a) and (b)(3).
Unlike the modest evidentiary threshold required to allow a collective FLSA action to proceed under 29 U.S.C. § 216, a court may certify a class only if it is satisfied, after a rigorous analysis, that all of these prerequisites are met. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003). The strict requirements are intended to protect absent class members whose rights may be affected by certification. Id. It is up to the plaintiffs to prove that each of the prerequisites has been met. Isaacs v. Sprint Corp., 261 F.3d 679, 682 (7th Cir. 2001). While classes may be amended based upon new information or changes in status, no class may be certified merely in anticipation that proof of the prerequisites will be forthcoming. The court must be satisfied that the required elements under the rule are met at the time the class is certified. Id.
For three reasons, this court believes it would be inappropriate to certify a class under Rule 23 at this point of the litigation. First, it would be difficult to craft an effective notice that clearly explains to prospective class members their opportunity to opt in to the FLSA collective action as well as their choice to opt out of the state law class action and the consequences of those choices. Second, since the court has already determined that notice should be sent out on the collective action, it would be prudent to wait to certify any class action to see how many employees take advantage of the opportunity to opt in to the collective FLSA action. After the conclusion of the opt-in period the court will be in a better position to determine if joinder is impracticable, if the claims of the named plaintiffs are typical, and therefore whether a class action may be appropriate. Third, and equally important, is this court's concern about exercising supplemental jurisdiction under a scenario where it is possible that only a handful of plaintiffs will seek to pursue federal claims while hundreds of other employees may find themselves in federal court pursuing only state law claims if they choose not to opt out of the class action. The language of 28 U.S.C. § 1367(a) speaks of supplemental jurisdiction as including "claims that involve the joinder or intervention of additional parties." One can certainly question whether that should include hundreds of additional parties whose presence in federal court on a state law claim is based solely on inaction on their part. See McClain v. Leona's Pizza, Inc., 222 F.R.D. 574, 577 (N.D. Ill. 2004).
III. Content of Notice
For purposes of the collective action, the court approves the sending of a notice to:
Present and former security officers employed by U.S. Security Associates, Inc., who work or worked at any Indiana location from December 11, 2000 until the present.
However, the content of that notice is yet to be decided.
The plaintiffs have submitted proposed notices. None of the notices submitted contemplate the specific circumstances, as the court has now defined them, under which the case will be moving forward. In addition plaintiffs' counsel has changed law firms since the original submission of proposed notices and all of the proposed notices contain notice addresses that are no longer applicable, as well as context errors in the body of the notices. Therefore, the plaintiffs will have an opportunity to submit a proposed notice based on the substance of this court's ruling. Defendant will be given a chance to submit any objection it has to the proposed notice.
IV. Additional Matters
Though not docketed as a separate motion, plaintiffs' reply memorandum addressing the approval of notices (Docket No. 86) contains what plaintiffs title a Motion to Strike Defendant's Response Memorandum in Opposition to Plaintiffs' Motion for Approval of Proposed Amended Class Notices and Plaintiffs' Reply with Amended Class Definition and Motion in the Alternative to Remand State Law Claims. This embedded motion is denied. Despite plaintiffs' protests, defendants opposition brief was not an unfair surreply. After defendant filed its response brief, plaintiffs served up amended class definitions for the notices they sought in connection with both the class and collective actions. In addition, and for the first time, their reply brief discussed some of the substantive changes asserted in their Second Amended Complaint, which was filed after the original request for class certification and approval of notices. Such changes are not unusual in class action motion practice, but simple fairness entitled defendant to be heard on those changes. To the extent there exists an independent motion to strike, it is denied.
Conclusion
Based on the foregoing, Plaintiffs' Motion For Class Certification Under Rule 23 and Notice of Fair Labor Standards Act Collective Action Lawsuit (Docket No. 31) is GRANTED IN PART, insofar as the court approves the action moving forward as a FLSA collective action pursuant to 29 U.S.C. § 216(b) and that notice of the same shall be sent to present and former security officers employed by U.S. Security Associates, Inc., who work or worked at any Indiana location from December 11, 2000 until the present. The motion is DENIED IN ALL OTHER RESPECTS without prejudice to plaintiffs' ability to renew a motion seeking class certification on state law claims following the close of the opt-in period for the collective action.Plaintiffs' Motion for Approval of Proposed Amended Class Notices and Motion to Withdraw Prior Motion for Approval of Proposed Class Notices (Docket No. 71) is DENIED.
Plaintiffs' Motion to Strike (Docket No. 86) is DENIED.
Within seven (7) days of the entry of this order, plaintiffs are to file a new proposed Notice of FLSA Collective Action. Within seven (7) days following plaintiffs' filing of the proposed notice, defendant is to file any objection it has to the proposed notice.
So ordered.