Wagner et al v. County of Inyo

Filing 9

ORDER GRANTING Conditional Certification of Collective Action and Ordering Facilitated Notice 8 , signed by District Judge Dale A. Drozd on 11/20/2017. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 AMANDA WAGNER and HEATHER LIND, Plaintiffs, 13 v. 14 15 No. 1:17-cv-00969-DAD-JLT COUNTY OF INYO, Defendant. 16 ORDER GRANTING CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION AND ORDERING FACILITATED NOTICE (Doc. No. 8) 17 On November 7, 2017, the parties filed a stipulation in this action seeking conditional 18 19 certification of a collective action under the Fair Labor Standards Act (“FLSA”) and facilitated 20 notice to be sent to prospective members of the FLSA class. (Doc. No. 8.) The proposed notice 21 has been presented to the court. (Doc. No. 8-2.) Pursuant to the FLSA, an employee may file a civil action, on behalf of himself and other 22 23 employees similarly situated, against an employer that fails to adhere to federal minimum wage 24 and overtime law. 29 U.S.C. § 216(b); see also Genesis Healthcare Corp. v. Symczyk, 569 U.S. 25 66, 69 (2013). Unlike a class action brought under Rule 23 of the Federal Rules of Civil 26 Procedure, similarly situated employees can join an FLSA collective action only if they opt-in by 27 giving written consent to be joined. 29 U.S.C. § 216(b). 28 ///// 1 1 The FLSA does not define the term “similarly situated,” and this court has identified no 2 binding Ninth Circuit or Supreme Court authority interpreting that term. However, district courts 3 in this circuit have used a two-step approach to decide whether potential FLSA plaintiffs are 4 similarly situated. See, e.g., Kellgren v. Petco Animal Supplies, Inc., No. 13CV644 L KSC, 2015 5 WL 5167144, at *2 (S.D. Cal. Sept. 3, 2015); Syed v. M–I, L.L.C., No. 1:12–cv–01718–AWI– 6 MJS, 2014 WL 6685966, at *2 (E.D. Cal. Nov. 26, 2014); Troy v. Kehe Food Distrib., Inc., 276 7 F.R.D. 642, 649 (W.D. Wash. 2011); Lewis v. Wells Fargo Co., 669 F. Supp. 2d 1124, 1127 8 (N.D. Cal. 2009); Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 467–68 (N.D. Cal. 2004); 9 Wynn v. National Broad. Co., 234 F. Supp. 2d 1067, 1082 (C.D. Cal. 2002). In the first step, 10 district courts may conditionally certify the proposed class based on consideration of the parties’ 11 pleadings and affidavits. Leuthold, 224 F.R.D. at 467. This determination is made under a 12 “lenient standard”—requiring a preliminary determination that notice is appropriate and that “the 13 putative class members were together the victims of a single decision, policy, or plan.” Lewis, 14 669 F. Supp. 2d at 1127 (citing Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1102 15 (10th Cir. 2001)). “The sole consequence of conditional certification is the sending of court- 16 approved written notice to employees.” Genesis Healthcare, 569 U.S. at 75 (citing Hoffmann–La 17 Roche Inc. v. Sperling, 493 U.S. 165, 171–72 (1989)). District courts have the authority to 18 facilitate notice to potential plaintiffs and may set a deadline for plaintiffs to opt in. Does I thru 19 XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000) (citing Hoffmann–La 20 Roche, 493 U.S. at 169). In the second step, after class members have opted in and discovery has 21 taken place, the party opposing class certification may seek to decertify the class. Leuthold, 224 22 F.R.D. at 467. 23 The court has reviewed the filings of the parties and the anticipated notice to be sent. The 24 complaint alleges that this suit is brought on behalf of all of defendant’s employees who were 25 deprived of their full overtime compensation over the prior three years because defendant did not 26 include compensation in lieu of health care coverage in the regular rate of pay used to calculate 27 overtime. (Doc. No. 1 at ¶¶ 9, 12.) Therefore, it appears notice is appropriate, and any claims of 28 the putative class members concerning this issue are the result of a single policy. Additionally, 2 1 the notice apprises putative class members of the nature of the claims alleged, the steps they must 2 take to be included in this action, and the consequences of doing so. (Doc. No. 8-2.) It advises 3 the class members that if they opt-in, they may be required to respond under oath to questions or 4 give testimony. (Id.) It also advises class members that plaintiffs’ counsel will ultimately seek an 5 award of attorneys’ fees, either separately or from any common fund judgment or settlement, if 6 they obtain a recovery for the class. (Id.) It advises them that they must respond within 90 days 7 of receiving the class notice in order to join in the suit. (Id.) The court finds this facilitated 8 notice to be appropriate. 9 Given the foregoing, the court grants conditional certification of this collective action 10 under the FLSA. Plaintiffs Wagner and Lind will represent the class members and Mastagni 11 Holstedt APC will serve as counsel for the collective class. The parties shall coordinate notice to 12 be sent to the class pursuant to their stipulation. (See Doc. No. 8.) Members of the class shall 13 have ninety (90) days from the distribution of the notice to opt-in to the action. The parties have 14 indicated that they will submit a joint status report 165 days after the issuance of this order, to 15 allow time for notice to be distributed and the parties to explore early settlement, and are hereby 16 ordered to do so. 17 IT IS SO ORDERED. 18 Dated: November 20, 2017 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3

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