Todd v. Daewon America, Inc.
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
DAEWON AMERICA, INC.,
CIVIL ACTION NO.
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.,
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.
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)
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.
Todd worked for Daewon from September 2, 2009, until
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
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.
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
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
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.”
practice to his employer, but was told the 30 minutes
would be deducted even when he was required to work
Todd filed this lawsuit on December 16, 2011.
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
Ashford and Potter also had 30 minutes deducted
for lunch even though they frequently had to work during
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.
Ashford complained to
his supervisor about these pay discrepancies, and his
supervisor told him that this is the “way the system
Ashford Decl. (Doc. No. 16-3) at ¶ 12.
and Bridges also raised complaints with supervisors to no
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
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
Compl. (Doc. No. 1) at ¶ 29.
compensation to bring a collective action on behalf of
himself and “similarly situated” workers.
§ 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
Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1216 (11th
affirmatively opt into the litigation, the decision to
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].”).
certify the action, on its own, does not create a class
Rather, the ‘existence of a collective
participation of other plaintiffs.’”
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.
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
Id. (citing Hipp, 252 F.3d at 1218).
discovery as a collective action on behalf of the opt-in
The Eleventh Circuit Court of Appeals thus recommends
a two-step process for certifying FLSA collective actions
under § 216(b).
Id. at 1260.
At the first stage, courts
plaintiffs for notice purposes; this stage is alternately
called the “conditional certification stage” or “notice
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.
“conditional” because courts leave open the possibility
for decertification of the class when more information
about the opt-in plaintiffs is available.
F.3d at 1261.
The second stage of the recommended two-step approach
is “triggered” by a motion for decertification of the
“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
In this case, the litigation is at the conditional
certification, or notice, stage.
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
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,
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
situated and, second, that other Daewon employees desire
to opt into his suit.
Similarly Situated Requirement
Morgan, 551 F.3d at
definition of “similarly situated,”
1260; instead, courts have recognized that the relevant
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
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
similarly situated requirement.
79 F.3d at 1097.
Dybach and Morgan, on the other hand, the appellate court
similarity of “job requirements and ... pay provisions.”
Dybach, 942 F.2d at 1567; see also Morgan, 551 F.3d at
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.
under FLSA; and, unlike the plaintiffs in Dybach and
Morgan, FLSA’s applicability is not at issue.
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
similarly situated such that conditional certification of
proposed class is reminiscent of two other classes that
were certified out of this district: Harper v. Lovett’s
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
The court, however, found the
workers’ collective status as “victims of employment
practices” that violated the FLSA satisfied the similarly
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.
The court, finding some evidence
that the pattern of alleged FLSA violations across the
district was “systemic,” id., rather than “sporadic,” id.
class.4 See also Longcrier v. HL-A Co., Inc., 595 F.Supp.
(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.
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
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.
The declarations show that this
departments within the company and over a long span of
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.
four declarants attest to the existence of this policy,
underpaid as a result of it.
The court finds these
declarations and Todd’s time sheets provide a reasonable
basis for finding that the payroll practices Todd alleges
informal policy or practice.”
Barron, 242 F.Supp. 2d at
Daewon does not contest that its payroll practices
led to under-calculating employee work hours; rather, it
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
notice” form protects against FLSA violations.
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
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
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.).
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”).
Desire of Others to Opt-In
Before conditionally certifying the class for notice
purposes, this court must assure itself that there are
Dybach, 942 F.2d at 1567.
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.
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.”
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.
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)
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
At this preliminary stage, the court will
thus allow notice to proceed on behalf of the three-year
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
procedure is better than the other procedure.
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
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