Rodriguez v. RCO Reforesting, Inc. et al.

Filing 31

ORDER signed by Senior Judge William B. Shubb on 6/16/2017 re 26 Plaintiffs' Motion to Conditionally Certify Class: IT IS ORDERED that plaintiffs' Motion for conditional certification of this action as an FLSA collective action and issu ance of notice to class members (Docket No. 26) be, and the same hereby is, DENIED WITHOUT PREJUDICE. Plaintiffs shall have fourteen days from the date this Order is signed to file an amended motion for conditional certification and facilitated notice. (Kirksey Smith, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 JESUS SILVA RODRIGUEZ and RIGOBERTO ZEPEDA LOA, 16 17 ORDER RE: MOTION FOR CONDITIONAL CERTIFICATION AND FACILITATED NOTICE PURSUANT TO 29 U.S.C. § 216(b) Plaintiffs, 14 15 CIV. NO. 2:16-2523 WBS CMK v. RCO REFORESTING, INC. and ROBERTO OCHOA, Defendants. 18 19 ----oo0oo---- 20 21 Plaintiffs Jesus Rodriguez and Rigoberto Loa brought 22 this action against defendants RCO Reforesting, Inc. (“RCO”) and 23 Roberto Ochoa, asserting various wage and hour and employment law 24 claims under federal and California law. 25 (“FAC”) (Docket No. 24).) 26 plaintiffs’ Motion to conditionally certify this action as an 27 FLSA collective action and issue notice to similarly situated 28 individuals under 29 U.S.C. § 216(b). (First Am. Compl. Presently before the court is 1 (Pls.’ Mot. (Docket No. 1 28).) Defendants employed plaintiffs as temporary forestry 2 3 workers pursuant to the H-2B visa program. 4 3 (“Rodriguez Decl.”) ¶ 2; id., Ex. 4 (“Loa Decl.”) ¶ 2.) 5 Plaintiffs allege that defendants had a policy of not paying 6 plaintiffs for overtime work and not reimbursing plaintiffs for 7 their travel and visa costs, as required by the H-2B visa 8 program. 9 reimburse travel and visa costs reduced plaintiffs’ first week (FAC ¶¶ 1, 23-26.) (Docket No. 26-1, Ex. Defendants’ alleged failure to 10 pay to below minimum wage. (Id. ¶¶ 49-52.) 11 according to plaintiffs, are in violation of sections 206 and 207 12 of the FLSA. 13 conditionally certify this action as an FLSA collective action 14 and issue notice to current and former employees who were subject 15 to the above-described practices. (See id. at 10-12.) These practices, Plaintiffs seek to Employees may bring suits for violations of the FLSA on 16 17 their own behalf and on behalf of “other employees similarly 18 situated.” 19 term “similarly situated,” and neither the Supreme Court nor the 20 Ninth Circuit has offered further clarification. 21 Citicorp Credit Servs., Civ. No. 1:12-62 BLW, 2013 WL 4648546, at 22 *2 (D. Idaho Aug. 29, 2013). 23 indicated that a proper collective action encourages judicial 24 efficiency by addressing in a single proceeding claims of 25 multiple plaintiffs who share ‘common issues of law and fact 26 arising from the same alleged [prohibited] activity.’” 27 (quoting Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 170 28 (1989)). 29 U.S.C. § 216(b). The FLSA does not define the Brown v. However, the Supreme Court “has 2 Id. District courts in the Ninth Circuit typically follow a 1 2 two-step process for FLSA actions. Id.; see also Velasquez v. 3 HSBC Fin. Corp., 266 F.R.D. 424, 427 (N.D. Cal. 2010) (listing 4 cases). 5 conditionally certify the proposed class and send notice of the 6 action based on the submitted pleadings and affidavits. 7 v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 471 (E.D. Cal. 2010). 8 After discovery and when the case is ready for trial, the court 9 then engages in a more searching review of whether the plaintiffs The district court first determines whether to Murillo 10 are similarly situated, often triggered by a motion to decertify 11 by the defendant. Id.; Velasquez, 266 F.R.D. at 427. Given the lack of discovery and limited evidence 12 13 available, courts apply a lenient standard to the first-step 14 determination, which usually results in conditional class 15 certification. 16 462, 467 (N.D. Cal. 2004). 17 plaintiffs make substantial allegations that the putative class 18 members were subject to a single illegal policy, plan or 19 decision.” 20 must supply “some modest evidentiary showing” beyond his or her 21 own conclusory allegations, and the court need not rely on 22 representations that indicate a lack of personal knowledge 23 regarding alleged employer practices. 24 *1-3. 25 Leuthold v. Destination Am., Inc., 224 F.R.D. This step “requires only that Murillo, 266 F.R.D. at 471. However, a plaintiff Brown, 2013 WL 4648546, at Here, plaintiffs seek to conditionally certify an FLSA 26 class defined as “[a]ll non-exempt workers employed by Defendants 27 at any time between May 5, 2014 through the present, either under 28 the terms of an H-2B job order or who were engaged in 3 1 corresponding employment.” (Pls.’ Proposed Order (Docket No. 26- 2 2.) 3 and copies of defendants’ H-2B applications for temporary 4 employment for 2013 through 2016, which defines the scope of the 5 H-2B visa workers’ job duties.1 In support of their request, plaintiffs submit affidavits (See Docket No. 26-1, Ex. 2.) Both plaintiffs attest that they were “not paid 6 7 overtime for the hours [they] worked more than eight hours a day” 8 and were “not paid more than 40 hours per week regardless of how 9 many hours [they] actually worked.” (Rodriguez Decl. ¶ 15; see 10 Loa Decl. ¶ 12.) They also allegedly were not reimbursed for 11 their visa costs or travel costs from Mexico to the company 12 office in Yreka, (Rodriguez Decl. ¶¶ 7-8; Loa Decl. ¶¶ 5-7), 13 which resulted in earning below minimum wage during their first 14 work week, (FAC ¶ 52). 15 was “not paid for the time [he] spent traveling from [his] 16 lodging to the work site and back to [his] lodging,” which was 17 upwards of three hours each way, further reducing his wages. 18 (Rodriguez Decl. ¶¶ 12, 15.) 19 fellow employees were subjected to the same conditions because 20 they witnessed such conduct and discussed these issues with their 21 fellow employees. Rodriguez additionally declares that he Both employees were aware that some (Id. ¶¶ 8, 15; Loa Decl. ¶¶ 5, 7, 12.) Plaintiffs’ proposed class is overly broad because 22 23 there are not “substantial allegations that the putative class 24 members were subject to a single illegal policy, plan or 25 decision.” 26 limited to those individuals who have FLSA claims. 27 28 1 See Murillo, 266 F.R.D. at 471. The class must be See id. Defendants requested H-2B visas for 85 workers in 2013, 101 workers in 2014, 80 workers in 2015, and 67 workers in 2016. 4 1 (conditionally certifying a class where “defendant engaged in a 2 uniform policy toward all class members”). 3 v. Inter-Con Security Systems, Inc., 242 F.R.D. 530, 536 (N.D. 4 Cal. 2007), the court conditionally certified a class of all 5 current and former security officers who worked for defendants 6 between certain dates because the allegations and affidavits 7 indicated that no security officers were ever paid overtime 8 wages. 9 certifying a class of all tour directors and managers working for For example, in Adams See also Leuthold, 224 F.R.D. at 468-69 (conditionally 10 defendant because there was evidence that defendants never paid 11 overtime). Here, plaintiffs do not allege that defendants had a 12 13 policy of never reimbursing travel costs and never paying 14 overtime. Plaintiffs’ counsel affirmed this position at oral 15 argument. Yet plaintiffs’ proposed class includes all H-2B 16 workers and all workers in corresponding employment, which 17 implies defendants never reimbursed costs or paid overtime. 18 other words, the class includes workers who have no FLSA claim. 19 This deficiency defeats plaintiffs’ Motion. 20 In Plaintiffs must limit their proposed class to 21 individuals who were subjected to defendants’ alleged FLSA wage 22 violations. 23 proposed class to non-exempt workers employed by defendants at 24 any time between May 5, 2014 through the present, either under 25 the terms of an H-2B job order or who were engaged in 26 corresponding employment who either were not paid for overtime or 27 were not reimbursed for their travel and visa costs such that 28 they made less than minimum wage. At the very least, plaintiffs must narrow their 5 Plaintiffs have not met the required showing for 1 2 conditional certification. While their allegations and 3 affidavits may suffice to conditionally certify some narrower 4 class, the allegations do not justify conditionally certifying a 5 class composed of all non-exempt H-2B visa workers and those in 6 corresponding employment, regardless of whether they were 7 subjected to FLSA violations. 8 the request to certify a different class than the one requested. It is not for the court to rewrite Having found that conditional certification of 9 10 plaintiffs’ proposed class is not proper, the court need not 11 address plaintiffs’ proposed notice and notice plan. 12 v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 628 (E.D. Cal. 13 2009) (Karlton, J.) (“If the court finds initial certification 14 appropriate, it may order notice to be delivered to potential 15 plaintiffs.” (citing Hoffmann-La Roche, 493 U.S. at 172)). See Kress IT IS THEREFORE ORDERED that plaintiffs’ Motion for 16 17 conditional certification of this action as an FLSA collective 18 action and issuance of notice to class members (Docket No. 26) 19 be, and the same hereby is, DENIED WITHOUT PREJUDICE. Plaintiffs shall have fourteen days from the date this 20 21 Order is signed to file an amended motion for conditional 22 certification and facilitated notice. 23 Dated: June 16, 2017 24 25 26 27 28 6

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