Kerzich v County of Tuolumne

Filing 38

ORDER Granting 37 Stipulation for Conditional Certification and Approval of Class Notice, signed by District Judge Dale A. Drozd on 3/24/2017. (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK KERZICH and TIMOTHY
WERTZ,
Plaintiffs,

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ORDER GRANTING STIPULATION FOR
CONDITIONAL CERTIFICATION AND
APPROVAL OF CLASS NOTICE

v.

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No. 1:16-cv-01116-DAD-SAB

COUNTY OF TUOLUMNE,
(Doc. No. 37)
Defendant.

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Plaintiffs Mark Kerzich and Timothy Wertz are employees of defendant County of

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Tuolumne (“County”). (Doc. No. 1 ¶ 1.) In accordance with County policy, plaintiffs and those

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similarly situated elected to receive monetary compensation in lieu of some or all of certain

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County-sponsored health and cafeteria-based benefits. (See id. ¶¶ 14, 15, 18, 19.) Plaintiffs

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allege that, for the three years prior to the commencement of this action, the County failed to

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include these in-lieu payments in its calculation of plaintiffs’ regular rate of pay, resulting in an

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underpayment of overtime compensation. (Id. ¶¶ 18, 19.) Plaintiffs further allege that

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defendant’s failure to fully compensate them and others similarly situated constitutes a violation

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of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). See Flores v. City of San

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Gabriel, 824 F.3d 890, 895 (9th Cir. 2016) (holding that cash payments in lieu of health benefits

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“must be included in the regular rate of pay and thus in the calculation of the overtime rate” under

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the FLSA).

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Now before the court is the parties’ stipulation for conditional certification of a collective

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action and for approval of class notice pursuant to the Fair Labor Standards Act. (Doc. No. 37.)

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Therein, the parties agree that this FLSA collective action should be conditionally certified on

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behalf of “all persons employed by the County as a non-exempt employee who worked some

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overtime between July 28, 2013 and the date of the Court’s order approving this Stipulation.” (Id.

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at 3.) In addition, the parties submit a proposed notice to potential plaintiffs outlining the nature

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of the collective action and steps by which similarly situated individuals may take to participate in

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this lawsuit. (See Doc. No. 37-1.)
Pursuant to the FLSA, an employee may file a civil action, on behalf of himself and other

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employees similarly situated, against an employer that fails to adhere to federal minimum wage

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and overtime law. 29 U.S.C. § 216(b); see also Genesis Healthcare Corp. v. Symczyk, 569 U.S.

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___, 133 S. Ct. 1523, 1527 (2013). Unlike a class action brought under Rule 23 of the Federal

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Rules of Civil Procedure, similarly situated employees can join an FLSA collective action only if

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they opt-in by giving written consent to be joined. 29 U.S.C. § 216(b).

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The FLSA does not define the term “similarly situated,” and this court finds no binding

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Ninth Circuit or Supreme Court authority interpreting that term. Accordingly, district courts in

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this circuit have used a two-step approach to decide whether potential FLSA plaintiffs are

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similarly situated. See, e.g., Kellgren v. Petco Animal Supplies, Inc., No. 13CV644 L KSC, 2015

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WL 5167144, at *2 (S.D. Cal. Sept. 3, 2015); Syed v. M-I, L.L.C., No. 1:12-cv-01718-AWI-MJS,

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2014 WL 6685966, at *2 (E.D. Cal. Nov. 26, 2014); Troy v. Kehe Food Distributors, Inc., 276

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F.R.D. 642, 649 (W.D. Wash. 2011); Lewis v. Wells Fargo Co., 669 F. Supp. 2d 1124, 1127

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(N.D. Cal. 2009); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 467–68 (N.D. Cal. 2004);

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Wynn v. National Broad. Co., 234 F. Supp. 2d 1067, 1082 (C.D. Cal. 2002). In the first step,

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district courts may conditionally certify the proposed class based on consideration of the parties’

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pleadings and affidavits. Leuthold, 224 F.R.D. at 467. This determination is made under a

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“lenient standard”—requiring a preliminary determination that notice is appropriate and that “the
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putative class members were together the victims of a single decision, policy, or plan.” Lewis,

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669 F. Supp. 2d at 1127 (citing Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1102

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(10th Cir. 2001)). “The sole consequence of conditional certification is the sending of court-

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approved written notice to employees.” Genesis Healthcare, 133 S. Ct. at 1530 (citing

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Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171–72 (1989)). District courts have the

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authority to facilitate notice to potential plaintiffs and may set a deadline for plaintiffs to opt in.

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Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000) (citing

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Hoffmann-La Roche, 493 U.S. at 169). In the second step, after class members have opted in and

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discovery has taken place, the party opposing class certification may seek to decertify the class.

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Leuthold, 224 F.R.D. at 467.
Based on the parties’ pleadings and stipulation, the court is satisfied that conditional

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certification of the collective action is warranted. In addition, the court finds that good cause

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exists to approve the proposed notice of collective action, and that the parties have proposed a

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reasonable deadline for potential plaintiffs to opt in to the case.

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Accordingly,

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1. The parties’ stipulation for conditional certification of a collective action and for

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approval of class notice (Doc. No. 37) is granted;
2. The court conditionally certifies this FLSA collective action for a class comprising all

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persons employed by the County as a non-exempt employee who worked some

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overtime between July 28, 2013 and the date of entry of this order;

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3. The court approves the proposed class notice (Doc. No. 37-1); and

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4. The parties are ordered to prepare and distribute the class notice to potential plaintiffs
in a manner consistent with the parties’ stipulation.

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IT IS SO ORDERED.
Dated:

March 24, 2017
UNITED STATES DISTRICT JUDGE

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