Todd v. Daewon America, Inc.

Filing 33

OPINION AND ORDER as follows: (1) Plaintiff Kelvin Todd's motion for entry of plaintiff's revised notice 30 is granted. (2) The opinion and order granting plaintiff Todd's motion for conditional class certification 25 is amended to the extent as further set out; that the parties' joint motion for approval of class notice 28 is denied as moot. Signed by Honorable Judge Myron H. Thompson on 3/20/2013. (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.

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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, charging
that his former employer, defendant Daewon America, Inc.,
violated

the

FLSA’s

overtime-pay

provisions.

Specifically, Todd alleges that Daewon had a policy of
paying for only 15 minutes of pre-shift work and that as
a result of this policy Daewon shorted his overtime pay;
Todd also alleges that Daewon deducted 30 minutes of pay
for a lunch break even though regularly requiring him to
work through lunch.

Jurisdiction is proper

pursuant to

29 U.S.C. § 216(b) (FLSA) and 28 U.S.C. § 1331 (federal
question).
The case is now before the court on Todd’s motion for
approval of class notice.

For the reasons that follow,

the court will grant Todd’s motion for approval of class
notice, albeit with an amendment to class definition as
well.

I.

Procedural History

Todd filed this lawsuit on December 16, 2011.
February

29,

2012,

he

moved

for

conditional

On

class

certification so as to notify potential class members of
their right to opt into his lawsuit under the FLSA’s
collective-action provision, 29 U.S.C. § 216(b).

By

April 4, 2012, the motion was fully briefed and set for
submission.
On

February

13,

2013,

the

court

conditionally

certified a class “consisting of those nonexempt, hourly
wage employees who worked at defendant Daewon America,

2

Inc.’s manufacturing plant in Opelika, Alabama for the
three years preceding initiation of this suit.”
(Doc. No. 25.)

Order

The court further ordered that the

parties submit a joint proposal on how to provide notice
of the suit to potential opt-in plaintiffs.
The parties filed their joint notice on February 27,
2013.

A few days later, the court convened the parties

for an on-the-record conference call to discuss the joint
notice.

During the call, the court inquired as to the

temporal scope of the class, as the notice informed
potential opt-in plaintiffs they could join only if they
worked for Daewon between May 1, 2009,and December 16,
2011, the latter date being the date of filing of this
lawsuit.1

The notice, however, was directed to, “All

1. In FLSA collective actions, the action commences
for an opt-in plaintiff the day the plaintiff’s consent
to opt into the lawsuit is filed with the court. Here,
plaintiff’s counsel intends to ask the court to toll the
statute of limitations during the period when the court
had the motion for conditional class certification under
advisement. The parties thus agreed to include opt-in
plaintiffs who worked for Daewon as far back as May 1,
2009.
3

present

and

former

hourly

paid

employees

of

Daewon

America, Inc.’s Auburn, Alabama facility who worked forty
hours or more in one or more work weeks from May 1, 2009,
to the present.”

Notice (Doc. No. 28-1) at 1.2

In light

of the conflict within the notice and because of the
parties’ indecision as to the proper temporal scope, the
court ordered further briefing on the issue.
Todd now asserts that the collective action should
include all employees who worked for Daewon at any point
during the three years before joining the lawsuit.

This

comports with the applicable statute of limitations,
which extends back three years from the date an opt-in
plaintiff files his or her consent to join the suit.
U.S.C. § 255(a); 29 U.S.C. § 256(b).

29

Todd thus asks the

court to approve a revised class notice that reflects the
inclusion of such persons.

Daewon, however, insists that

including employees who did not work for Daewon until

2. The notice has a typographical error: the plant
is in Opelika, not Auburn. The parties have agreed to
rectify this error before sending out the class notice.
4

after

Todd

filed

his

complaint

would

contravene

the

court’s previous definition of the class and objects to
the revised notice on this basis.

II.

Discussion

The FLSA provision authorizing collective actions
requires only that the other employees seeking to join
the lawsuit be “similarly situated.”
Absent

further

developed

a

statutory

two-step

collective actions.

29 U.S.C. § 216(b).

instruction,

process

for

courts

managing

have
these

Morgan v. Family Dollar Stores,

Inc., 551 F.3d 1233, 1260 (11th Cir. 2008).

At the first

stage, courts authorize the original plaintiff to notify
other potential plaintiffs of their right to opt into his
lawsuit.
over

the

See id.
names

In order to ensure the employer turns
and

addresses

of

potential

opt-in

plaintiffs and to avoid abuse of the notice process,
courts conditionally certify a class of employees to whom
notice of the suit may be sent.

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The employer can then

move to decertify the class at the second stage, and the
court will view the contours of the collective action
more critically.

Id. at 1261.

In considering the propriety of any particular FLSA
class, courts must bear in mind the purposes of the FLSA
collective-action mechanism: “(1) reducing the burden on
plaintiffs through the pooling of resources, and (2)
efficiently resolving common issues of law and fact that
arise from the same illegal conduct.”

Morgan, 551 F.3d

at 1264 (citing Hoffman-La Roche, Inc. v. Sperling, 493
U.S. 165, 170 (1989)).
Including

those

employees

who

began

working

for

Daewon after the complaint in this case was filed will
further the purposes of the FLSA collective action.

Opt-

in plaintiffs will be spared the cost and delay of
initiating

a

separate

lawsuit,

and

all

parties

will

benefit from efficient resolution of the allegations.
Nor are these employees too dissimilar to Todd to
join his lawsuit.

There is no indication that Daewon’s

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overtime policies or practices have changed since the
complaint was filed.

To the extent Daewon’s opposition

to the scope of the class is an attempt to re-litigate
the motion for conditional class certification, the court
stands by its original decision.

The court defined the

class as reaching back three years before the initiation
of the lawsuit, but left the temporal scope otherwise
open-ended.

The court did not, as Daewon insists, cut

off the class the day this suit was filed.

For the sake

of clarity, however, the court will amend its definition
of the conditional class to explicitly include employees
currently working for Daewon.
***
Accordingly, it is ORDERED as follows:
(1) Plaintiff Kelvin Todd’s motion for entry of
plaintiff’s revised notice (doc. no. 30) is granted.
(2) The opinion and order granting plaintiff Todd’s
motion for conditional class certification (doc. no. 25)
is amended to the extent that the court conditionally

7

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 to the
present.
It is further ORDERED that the parties’ joint motion
for approval of class notice (doc. no. 28) is denied as
moot.
DONE, this the 20th day of March, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE