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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMANDA WAGNER and HEATHER
LIND,
Plaintiffs,

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v.

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No. 1:17-cv-00969-DAD-JLT

COUNTY OF INYO,
Defendant.

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ORDER GRANTING CONDITIONAL
CERTIFICATION OF COLLECTIVE
ACTION AND ORDERING FACILITATED
NOTICE
(Doc. No. 8)

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On November 7, 2017, the parties filed a stipulation in this action seeking conditional

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certification of a collective action under the Fair Labor Standards Act (“FLSA”) and facilitated

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notice to be sent to prospective members of the FLSA class. (Doc. No. 8.) The proposed notice

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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

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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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66, 69 (2013). Unlike a class action brought under Rule 23 of the Federal Rules of Civil

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Procedure, similarly situated employees can join an FLSA collective action only if they opt-in by

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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 has identified no

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binding Ninth Circuit or Supreme Court authority interpreting that term. However, district courts

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in 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–

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MJS, 2014 WL 6685966, at *2 (E.D. Cal. Nov. 26, 2014); Troy v. Kehe Food Distrib., 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, 569 U.S. at 75 (citing Hoffmann–La

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

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facilitate notice to potential plaintiffs and may set a deadline for plaintiffs to opt in. Does I thru

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XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000) (citing Hoffmann–La

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

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taken place, the party opposing class certification may seek to decertify the class. Leuthold, 224

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F.R.D. at 467.

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The court has reviewed the filings of the parties and the anticipated notice to be sent. The

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complaint alleges that this suit is brought on behalf of all of defendant’s employees who were

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deprived of their full overtime compensation over the prior three years because defendant did not

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include compensation in lieu of health care coverage in the regular rate of pay used to calculate

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overtime. (Doc. No. 1 at ¶¶ 9, 12.) Therefore, it appears notice is appropriate, and any claims of

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the putative class members concerning this issue are the result of a single policy. Additionally,
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the notice apprises putative class members of the nature of the claims alleged, the steps they must

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take to be included in this action, and the consequences of doing so. (Doc. No. 8-2.) It advises

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the class members that if they opt-in, they may be required to respond under oath to questions or

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give testimony. (Id.) It also advises class members that plaintiffs’ counsel will ultimately seek an

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award of attorneys’ fees, either separately or from any common fund judgment or settlement, if

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they obtain a recovery for the class. (Id.) It advises them that they must respond within 90 days

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of receiving the class notice in order to join in the suit. (Id.) The court finds this facilitated

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notice to be appropriate.

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Given the foregoing, the court grants conditional certification of this collective action

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under the FLSA. Plaintiffs Wagner and Lind will represent the class members and Mastagni

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Holstedt APC will serve as counsel for the collective class. The parties shall coordinate notice to

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be sent to the class pursuant to their stipulation. (See Doc. No. 8.) Members of the class shall

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have ninety (90) days from the distribution of the notice to opt-in to the action. The parties have

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indicated that they will submit a joint status report 165 days after the issuance of this order, to

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allow time for notice to be distributed and the parties to explore early settlement, and are hereby

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ordered to do so.

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IT IS SO ORDERED.

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Dated:

November 20, 2017
UNITED STATES DISTRICT JUDGE

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