Todd v. Daewon America, Inc.

Filing 25

OPINION AND ORDER as follows: (1) Plaintiff Kelvin Todd's motion for conditional class certification and to provide notice 14 is granted; (2) The court conditionally certifies a class consisting of those nonexempt, hourly wage employees who worked at defendant Daewon America, Inc.'s manufacturing plant in Opelika, Alabama for the three years preceding initiation of this suit; (3) The parties are to submit, within 14 days from the date of this order, a joint proposal to the court f or providing the requested notice of this collective action to similarly situated persons as further set out; (4) If the parties cannot agree on the notice procedure, the parties are to request in writing, within 21 days from the date of this order, that the magistrate judge resolve their differences. Signed by Honorable Judge Myron H. Thompson on 2/13/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

KELVIN TODD,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
DAEWON AMERICA, INC.,
Defendant.

CIVIL ACTION NO.
3:11cv1077-MHT
(WO)

OPINION AND ORDER
Plaintiff Kelvin Todd brings this action under the
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, on
behalf of himself and others similarly situated, alleging
that his former employer, defendant Daewon America, Inc.,
violated

the

FLSA’s

overtime-pay

provisions.

Specifically, Todd alleges Daewon had a policy of paying
for only 15 minutes of pre-shift work and, as a result of
this policy, the company shorted his overtime pay.

Todd

also alleges that the company deducted 30 minutes of pay
for a lunch break even though regularly requiring him to
work through lunch.

Jurisdiction is proper under 28

U.S.C. § 1331 (federal question) and 29 U.S.C. § 216(b)
(FLSA).
The case is now before the court on Todd’s motion for
conditional class certification.

For the reasons that

follow, the motion will be granted.

I. BACKGROUND
Todd worked for Daewon from September 2, 2009, until
December

3,

departments

2011.
at

its

He

worked

in

manufacturing

several
plant

different

in

Opelika,

Alabama, including shot peening, assembly, and paint.
His last rate of pay with the company was $ 13.40 an
hour, with an overtime rate of $ 20.10 an hour.
Todd alleges that, although Daewon paid him some
overtime, it did not pay him for all the overtime he
worked.

The FLSA requires that any employee who works

over 40 hours a week receive one and a half times his
regular pay for all excess hours.

29 U.S.C. § 207.1

1. Daewon does not dispute that the FLSA governs its
payment of Todd and other non-exempt employees.
2

Todd contends that he was underpaid as a result of
Daewon’s rounding practices.

The company’s policy was to

pay for pre-shift overtime work only if the employee
worked an excess of 15 minutes before the start of his
shift.

Todd regularly began work for Daewon before the

start of his shift, but was not paid for that time
because it did not exceed 15 minutes; if he worked more
than 15 minutes pre-shift, Daewon paid him for the 15
minutes but no more.

In July 2011, the company changed

its policy so that it would not pay for any pre-shift
time unless the employee worked an excess of 30 minutes
pre-shift.

According to Todd this change resulted in

further under-compensation in violation of FLSA.
Additionally, Todd was routinely required to work
through his lunch break, but Daewon still deducted 30minutes pay for his lunch.

Todd states, “There were very

few times during my employment with Daewon that I was
able to take a full meal break ... because we were shorthanded and because of my heavy workload.”

3

Todd Decl.

(Doc.

No.

16-2)

at

¶

10.

Todd

complained

of

this

practice to his employer, but was told the 30 minutes
would be deducted even when he was required to work
through lunch.
Todd filed this lawsuit on December 16, 2011.

Five

other current and former employees of Daewon have since
consented to opt into his lawsuit.

Of these five opt-in

plaintiffs, three have also filed declarations detailing
their complaints against the company.
Opt-in plaintiffs Aaron Ashford, Otis Bridges, and
Derrick Potter all state that, like Todd, Daewon did not
pay them sufficient overtime due to the company’s policy
of paying for pre-shift work only when it exceeded 15
minutes.

Ashford and Potter also had 30 minutes deducted

for lunch even though they frequently had to work during
this time.

Ashford, the only opt-in plaintiff currently

employed at Daewon, is periodically required to attend
safety meetings 30 minutes before the start of his shift,
and he is not paid for this time.

4

Ashford complained to

his supervisor about these pay discrepancies, and his
supervisor told him that this is the “way the system
works.”

Ashford Decl. (Doc. No. 16-3) at ¶ 12.

Potter

and Bridges also raised complaints with supervisors to no
avail.
Ashford and Potter were each paid $ 11.80 an hour,
and Bridges was paid $ 10.25 an hour.

Ashford works as

a material handler and forklift operator; Bridges was
production

operator;

and

Potter

worked

as

a

a

paint

technician and also worked in the quality department.
Todd seeks certification of a potential class of optin plaintiffs of all those who (like himself, Ashford,
Bridges, and Potter) were “employed by Defendant and
perform[ed] off the clock work without being paid at any
time during the three (3) years preceding the filing of
this Complaint.”

Compl. (Doc. No. 1) at ¶ 29.

5

II. DISCUSSION
The

FLSA

authorizes

a

worker

seeking

unpaid

compensation to bring a collective action on behalf of
himself and “similarly situated” workers.

29 U.S.C.

§ 216(b); see also Garner v. G.D. Searle Pharms. & Co.,
802 F. Supp. 418, 420 (M.D. Ala. 1991) (Thompson, C.J.).
Unlike traditional class actions under Rule 23 of the
Federal Rules of Civil Procedure (which bind all members
of the class whether they choose to participate in the
litigation or not), the FLSA § 216(b) collective action
is “opt-in,” that is, workers are bound by the lawsuit’s
result only if they affirmatively decide to participate
by submitting written consents to the court.2

Hipp v.

Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1216 (11th
Cir. 2001).
“Because

similarly

situated

employees

must

affirmatively opt into the litigation, the decision to
2.
See, e.g., Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 173 (1974) (“[T]he judgment [in a class
action], whether favorable or not, will bind all class
members [who did] not request[] [to be] exclu[ded].”).
6

certify the action, on its own, does not create a class
of plaintiffs.
action

under

Rather, the ‘existence of a collective
§

216(b)

...

depend[s]

participation of other plaintiffs.’”

on

the

active

Morgan v. Family

Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008)
(alterations in original) (quoting Cameron-Grant v. Maxim
Healthcare Servs. Inc., 347 F.3d 1240, 1249 (11th Cir.
2003)).

Conditional certification of a putative class is

important because it allows for court-authorized notice
to alert potential opt-in class members of the suit’s
existence.

Id. (citing Hipp, 252 F.3d at 1218).

others

in,

opt

the

case

can

move

forward

Once

through

discovery as a collective action on behalf of the opt-in
plaintiffs.

Id.

The Eleventh Circuit Court of Appeals thus recommends
a two-step process for certifying FLSA collective actions
under § 216(b).
consider

Id. at 1260.

conditional

At the first stage, courts

certification

of

the

class

of

plaintiffs for notice purposes; this stage is alternately

7

called the “conditional certification stage” or “notice
stage.”

Id. at 1260 & 1261.

At this initial stage, “the

district court should satisfy itself that there are other
employees of the department-employer who desire to ‘optin’ and who are ‘similarly situated.’”

Dybach v. State

of Fla. Dept. of Corr., 942 F.2d 1562, 1567-68 (11th Cir.
1991).

Certification

at

this

stage

is

considered

“conditional” because courts leave open the possibility
for decertification of the class when more information
about the opt-in plaintiffs is available.

Morgan, 551

F.3d at 1261.
The second stage of the recommended two-step approach
is “triggered” by a motion for decertification of the
class.

Id.

“At this point, the district court has a

much thicker record than it had at the notice stage, and
can therefore make a more informed factual determination
of similarity.”

Id.

In this case, the litigation is at the conditional
certification, or notice, stage.

8

Because discovery has

not yet begun and the record is still undeveloped, the
standard for finding similarity is “fairly lenient,” id.
(quoting Anderson, 488 F.3d at 953); the standard here
has also been described as “flexib[le],” id. (quoting
Hipp, 252 F.3d at 1214), “not heavy,” id., (quoting
Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th Cir.
1996)), and “elastic and less stringent than that for
joinder under [Federal Rule of Civil Procedure] 20(a) or
for separate trials under [Rule] 42(b),” id. (quoting
Grayson, 79 F.3d at 1096).

Still, the plaintiff must

provide a “reasonable basis” for the court to find other
similarly situated workers exist and would opt in if they
knew of the suit.

Id. at 1260.

This burden may be met

with “detailed allegations supported by affidavits which
successfully
contrary.”

engage

defendants’

affidavits

to

the

Anderson, 488 F.3d at 952 (quoting Grayson,

79 F.3d at 1097).

Mere assertions from counsel that

illegal activity is widespread and that other employees
will join the action upon notice are, without more,

9

insufficient.

Morgan, 551 F.3d at 1261 (quoting Haynes

v. Singer Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983)).
Todd thus bears the burden at this preliminary stage
to show a reasonable basis for finding, first, that he
and

the

potential

opt-in

plaintiffs

are

similarly

situated and, second, that other Daewon employees desire
to opt into his suit.

A.

Similarly Situated Requirement

Neither

the

FLSA

nor

case

law

provides

a

clear

Morgan, 551 F.3d at

definition of “similarly situated,”

1260; instead, courts have recognized that the relevant
factors

for

similarly

determining

situated

violation alleged.

vary

whether

other

depending

on

employees
the

type

are
of

See, e.g., Harper v. Lovett’s Buffet,

Inc., 185 F.R.D. 358, 364 (M.D. Ala. 1999) (Albritton,
C.J.) (discussing Dybach, 942 F.2d 1562, and noting that
the “determinative factor” for evaluating whether the
Dybach employees were similarly situated depended on a

10

Thus in Grayson, a case

“distinct factual scenario”).

involving a claim of age discrimination under the Age
Discrimination in Employment Act (ADEA)3, the Eleventh
Circuit Court of Appeals required the plaintiffs to show
“class-wide

discrimination”

in

similarly situated requirement.

order

to

satisfy

the

79 F.3d at 1097.

In

Dybach and Morgan, on the other hand, the appellate court
viewed

the

similarly

situated

inquiry

as

requiring

similarity of “job requirements and ... pay provisions.”
Dybach, 942 F.2d at 1567; see also Morgan, 551 F.3d at
1262.

The court required similar job requirements and

pay provisions in Dybach and Morgan, because the issue in
both cases was whether the employees were exempt from the
FLSA as professional or managerial employees.
Unlike the plaintiffs in Grayson, Todd seeks to
pursue a § 216(b) collective action to vindicate rights

3. The ADEA, 29 U.S.C. § 626(b), incorporates the
FLSA’s opt-in collective mechanism. Grayson, 79 F.3d at
1096. In Grayson, the Eleventh Circuit thus approved the
ADEA collective action pursuant to the requirements of
section 216(b) of the FLSA. Id.
11

under FLSA; and, unlike the plaintiffs in Dybach and
Morgan, FLSA’s applicability is not at issue.

Here, Todd

is alleging that Daewon violated the FLSA as a direct
result of its “uniform payroll policy/practice,” which,
according to Todd, affected “every single hourly paid
non-exempt employee working with Defendant during the
three years preceding the filing of [this] complaint,”
Pl. Br. (Doc. No. 15) at 11; thus, he argues that all
hourly, non-exempt Daewon employees qualify as similarly
situated in relation to this suit.
The court agrees that, at this stage, the proposed
plaintiff-class

members

and

Todd

are

sufficiently

similarly situated such that conditional certification of
this

§

216(b)-collective

action

is

warranted.

The

proposed class is reminiscent of two other classes that
were certified out of this district: Harper v. Lovett’s
Buffet,

Inc.,

(Albritton,
System,

242

185

C.J.)

F.R.D.
and

F.Supp.

358,

Barron

2d

1096,

12

364

v.

(M.D.

Henry

1104

Ala.

County

(M.D.

Ala.

1999)
School
2003)

(Albritton, C.J.).

In Harper, the court conditionally

certified a class consisting of all hourly wage employees
who, within the past three years, had worked in the same
restaurant as the named plaintiffs.

185 F.R.D. at 365.

The defendant objected that, since the restaurant workers
included busboys, servers, cooks and dishwashers, their
job duties and pay provisions were too different from
those of the class representatives to qualify them as
similarly situated.

Id.

The court, however, found the

workers’ collective status as “victims of employment
practices” that violated the FLSA satisfied the similarly
situated requirement.

In Barron, the plaintiffs asked

the court to certify conditionally a class of hourly wage
earners who worked at a variety of different schools and
in different positions within a school district.
F.Supp. 2d 1096, 1105.

242

The court, finding some evidence

that the pattern of alleged FLSA violations across the
district was “systemic,” id., rather than “sporadic,” id.
at

1104,

agreed

conditionally

13

to

certify

this

broad

class.4 See also Longcrier v. HL-A Co., Inc., 595 F.Supp.
2d

1218,

1241

(S.D.

Ala.

2008)

(Steele,

J.)

(conditionally certifying a class of hourly wage earners
at an automobile parts manufacturing center where all
were “collectively victims of a single policy or plan”).5
In this case, Todd alleges that Daewon had a policy
of not paying its hourly employees for time worked preshift unless the time exceeded 15 minutes.

He has

submitted four declarations, from himself and three other
Daewon employees, all attesting that this was in fact the
Contrast Reed v. Mobile

company’s payroll practice.

County School System, 246 F.Supp. 2d 1227, 1236 (S.D.
Ala. 2003) (Butler, C.J.) (finding insufficient evidence
of a pattern or practice where plaintiffs “produced no
affidavits

from

employees

identifying

any

allegedly

4. The Eleventh Circuit has also held that, in a
pattern or practice case, proof of “a unified policy,
plan, or scheme” is not always necessary. Grayson, 79
F.3d at 1095.
5. The workers in Longcrier alleged the same FLSA
violations as do the plaintiffs in the instant case. 595
F.Supp. 2d at 1221.
14

unlawful practice”).
payroll

practice

The declarations show that this

occurred

across

several

different

departments within the company and over a long span of
time.

As further evidence of the existence of this

practice, Todd submits his time sheet from Daewon; the
time sheet illustrates the company’s use of the rounding
policy Todd describes in his complaint.

He also alleges

that Daewon had a policy of requiring its employees to
work through their lunch break without compensation.

All

four declarants attest to the existence of this policy,
though

only

three

explicitly

underpaid as a result of it.

state

that

they

were

The court finds these

declarations and Todd’s time sheets provide a reasonable
basis for finding that the payroll practices Todd alleges
were

widespread

and

“stem

informal policy or practice.”

from

some

...

formal

or

Barron, 242 F.Supp. 2d at

1104.
Daewon does not contest that its payroll practices
led to under-calculating employee work hours; rather, it

15

argues that inaccuracies in its payroll policies did not
violate FLSA because supervisors did not order employees
to begin work before their shifts.

In addition, Daewon

argues that its policy of compensating employees for
overtime

if

employees

submit

a

“working

hour

notice” form protects against FLSA violations.

change

As such,

it contends that the proposed plaintiff class members
“will have widely divergent claims depending on their
scheduled starting work time, closing work time, job
duties, department, supervisor and reasons why they did
not follow the procedures by Daewon to request pay for
the alleged unpaid ‘pre-shift and post-shift’ work.”
Def. Br. (Doc. No. 18) at 23.

Daewon thus asks the court

to find the members of the plaintiff class insufficiently
similar for conditional certification and notice.
However, a motion for conditional certification is
not the appropriate vehicle for a decision on the merits.
Longcrier, 595 F.Supp. 2d at 1240-41 (“To the extent that
Defendant would now argue the merits of the case, such

16

debates are premature and inappropriate.”).

The court is

not yet tasked with determining whether the availability
of the working-hour-change-notice form cured potential
FLSA violations or whether pre-shift labor is properly
compensable

when

done

voluntarily.

While

Daewon’s

assertions hint that individual issues may eventually
dominate this collective action, it is not clear at this
early stage that the individual factors go to liability,
rather than damages.

White v. Osmose, Inc., 204 F.Supp.

2d 1309, 1318 (M.D. Ala. 2002) (Albritton, C.J.).

As the

court cannot agree with the company’s assertions without
rendering judgment on the merits, these contentions are
better raised at a later stage.

See also Morgan, 551

F.3d at 1261 (discussing the decertification stage and
explaining that as “more legally significant differences
appear amongst the opt-ins, the less likely it is that
the group of employees is similarly situated”).

17

B.

Desire of Others to Opt-In

Before conditionally certifying the class for notice
purposes, this court must assure itself that there are
others

who

“desire

to

‘opt-in’”

to

Todd’s

action.

current

Daewon

Dybach, 942 F.2d at 1567.
As

discussed,

five

former

and

employees have filed consents to opt into this action.
Daewon argues that the court should consider only the
consents from the three employees who also submitted
declarations as evidence of opt-in interest.
cannot agree.

The court

The consents are proof that at least five

former and current Daewon employees wish to join a suit
against Daewon for damages for “overtime compensation
under the Fair Labor Standards Act.”
16-1).

Consents (Doc. No.

Furthermore, each of the declarants states his

belief that, if more of their co-workers learned of the
suit, they would join as well.

The court finds this

sufficient evidence that others desire to opt into the
suit Todd has initiated.

18

The court will therefore conditionally certify a
class of all non-FLSA-exempt, hourly wage employees who
worked for Daewon within the three years preceding the
filing of the complaint in this case.6
***
Accordingly, it is ORDERED as follows:
(1) Plaintiff Kelvin Todd’s motion for conditional
class certification and to provide notice (Doc. No. 14)
is granted.
(2)

The

court

conditionally

certifies

a

class

consisting of those nonexempt, hourly wage employees who
6. The three-year statute of limitations applies to
actions brought under the FLSA for willful violations of
the statute. 29 U.S.C. § 255(a). Otherwise, suits for
FLSA violations must be brought within two years. Id.
To qualify as a willful violation, the employer must have
known its conduct was prohibited by the FLSA or else
shown reckless disregard for the possibility that the
conduct violated the FLSA. McLaughlin v. Richland Shoe
Co., 486 U.S. 128, 134 (1988).
Daewon does not argue
that a two-year statute of limitations should apply to
the conditionally certified class. Furthermore, Todd and
his co-workers state that they notified their supervisors
of pay discrepancies and yet the contested practices
continued.
At this preliminary stage, the court will
thus allow notice to proceed on behalf of the three-year
class.
19

worked at defendant Daewon America, Inc.’s manufacturing
plant in Opelika, Alabama for the three years preceding
initiation of this suit.
(3) The parties are to submit, within 14 days from
the date of this order, a joint proposal to the court for
providing the requested notice of this collective action
to similarly situated persons.

If the parties cannot

agree on the notice procedure, the joint proposal should
include

each

explanation

side's

from

each

suggested
side

as

procedure,
to

why

its

with

an

suggested

procedure is better than the other procedure.
(4)

If

the

parties

cannot

agree

on

the

notice

procedure, the parties are to request in writing, within
21 days from the date of this order, that the magistrate
judge resolve their differences.
DONE, this the 13th day of February, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE