Zaborowski et al v. MHN Government Services, Inc. et al

Filing 80

ORDER GRANTING PLAINTIFFS' MOTION FOR CONDITIONAL FLSA COLLECTIVE ACTION CERTIFICATION 54 (Illston, Susan) (Filed on 4/25/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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THOMAS ZABOROWSKI, et. al., on behalf of
themselves and a putative class,

United States District Court
For the Northern District of California

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ORDER GRANTING PLAINTIFFS’
MOTION FOR CONDITIONAL FLSA
COLLECTIVE ACTION
CERTIFICATION

Plaintiffs,

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No. C 12-05109 SI

v.
MHN GOVERNMENT SERVICES, INC. and
MANAGED HEALTH NETWORK, INC.,
Defendants.

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Currently before the Court is plaintiffs’ motion for certification of a conditional FLSA collective
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action and issuance of notice. Pursuant to Civil Local Rule 7-1(b), the Court determines that these
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matters are appropriate for resolution without oral argument and VACATES the hearing scheduled for
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April 26, 2013. Having carefully considered the papers submitted, the motion is GRANTED, for the
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reasons set forth below.
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BACKGROUND
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Plaintiffs, as Military Family Life Consultants (“MFLCs” or “MFL Consultants”), provide
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financial counseling, child services, and victim advocacy counseling at U.S. military installations across
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the country and internationally. They filed this suit against their employers, MHN Government
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Services, Inc. and Managed Health Network, Inc. (collectively “MHN”), alleging that MHN
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misclassified them as independent contractors, exempt from overtime payment. They argue that they
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should instead be classified as employees and entitled to overtime compensation. They assert claims
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under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and similar state labor laws.

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On November 1, 2012, defendants moved to compel arbitration pursuant to an arbitration clause

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in the employment contract between the MFL Consultants and MHN. The Court denied the motion on

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April 3, 2013, and defendants appealed that order (the “Arbitration Order”).
On March 14, 2013, plaintiffs filed a motion for conditional FLSA collective action certification.

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The proposed class is defined as: “All individuals who have worked as MFLCs for MHN while

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classified as independent contractors, at any time from October 2, 2009 to the time of trial, in any

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territory subject to the coverage of the FLSA.” Pls.’ Mot. at 1. Plaintiffs argue that they are similarly

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situated to the proposed class members with respect to their FLSA claims, and therefore conditional

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United States District Court
For the Northern District of California

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certification is warranted. Defendants make two arguments against conditional certification: (1) the

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motion for conditional certification is premature because of defendants’ pending appeal of the

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Arbitration Order, and (2) the differences between and amongst MFLCs is so great that they are not

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“similarly situated.”

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LEGAL STANDARD

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Section 216(b) of the FLSA provides that one or more employees may bring a collective action

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“on behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b); see

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also Genesis Healthcare Corp. v. Symczyk, 2013 WL 1567370, at *3 (U.S. 2013). To determine whether

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plaintiffs are “similarly situated,” courts in this circuit have applied a “two-step approach involving

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initial notice to prospective plaintiffs, followed by a final evaluation whether such plaintiffs are similarly

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situated.” Leuthold v. Destination America, Inc., 224 F.R.D. 462, 467 (N.D. Cal. 2004). “The first step

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under the two-tiered approach considers whether the proposed class should be given notice of the action.

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This decision is based on the pleadings and affidavits submitted by the parties.” Adams v. Inter-Con

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Sec. Systs., Inc., 242 F.R.D. 530, 536 (N.D. Cal. 2007) (citations omitted). “In the second step, the party

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opposing certification may move to decertify the class once discovery is complete and the case is ready

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to be tried.” Id.

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“Courts have held that conditional certification requires only that plaintiffs make substantial

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allegations that the putative collective action members were subject to a single illegal policy, plan or
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decision.” In re Wells Fargo Home Mortg. Overtime Pay Litig., 527 F. Supp. 2d 1053, 1071 (N.D. Cal.

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2007); see also Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996), cert. denied, 519 U.S.

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982 (1996) (finding that “plaintiffs need show only that their positions are similar, not identical, to the

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positions held by the putative class members”) (internal citation and quotation omitted). “The standard

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for certification at this [first] stage is a lenient one that typically results in certification.” Russell v.

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Wells Fargo & Co., No. C 07-3993 CW, 2008 WL 4104212, at *2 (N.D. Cal. Sept. 3, 2008) (citing

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Wynn v. Nat’l Broad. Co. Inc., 234 F. Supp. 2d 1067, 1082 (C.D. Cal. 2002)); see also Adams, 242

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F.R.D. at 536 (“The court makes this [first stage] determination under a fairly lenient standard due to

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the limited amount of evidence before it. The usual result is conditional class certification.”) (citations

United States District Court
For the Northern District of California

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omitted).

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Collective actions under the FLSA are not subject to the requirements of Rule 23 for certification

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of a class action. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001).

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Indeed, “[t]he requisite showing of similarity of claims under the FLSA is considerably less stringent

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than the requisite showing under Rule 23 of the Federal Rules of Civil Procedure.” Wertheim v.

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Arizona, No. CIV 92-453 PHX RCB, 1993 WL 603552, *1 (D. Ariz. Sept. 30, 1993) (citations omitted)

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(finding that “[a]ll that need be shown by the plaintiff is that some identifiable factual or legal nexus

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binds together the various claims of the class members in a way that hearing the claims together

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promotes judicial efficiency and comports with the broad remedial policies underlying the FLSA”).

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DISCUSSION
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Delaying Decision on the Motion During Pending Appeal

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First, defendants argue that the Court should not consider plaintiff’s motion for conditional

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FLSA collective action certification, because it is not “mature.” Defs.’ Opp’n at 1. They argue that the

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pending appeal of the Court’s Arbitration Order warrants a delay on the decision of plaintiffs’ motion.

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Otherwise, they argue, judicial resources may be wasted and the MFL Consultants will be needlessly

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contacted if the Arbitration Order is reversed.

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The Court is unpersuaded by defendants’ arguments. It is the hallmark of the conditional

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certification process that often members will be contacted to opt in to a class, and then the class may
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later become disbanded. This could occur in many ways, such as if a court grants a defendant’s motion

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to decertify the class, if claims become moot, or if an appellate court reverses an order of the district

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court. The possibility that this Court’s Arbitration Order may be reversed is not a persuasive reason to

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delay the decision on plaintiffs’ motion for conditional FLSA collective action certification, as a class

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could not materialize in many other different scenarios.
Moreover, plaintiffs have filed declarations from six MFL Consultants and documentary

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evidence from MHN. Defendants have also filed declarations from MHN employees and numerous

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pieces of documentary evidence. There is sufficient evidence for the Court to decide this motion, and

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no need for delay. Furthermore, a prompt decision will promote justice and efficiency by notifying

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United States District Court
For the Northern District of California

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potential class members of this action early so that documents and memories can be more carefully

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preserved, and discovery can proceed forward.

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congressional purpose in enacting the Fair Labor Standards Act of 1938 [which] was to protect all

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covered workers from substandard wages and oppressive working hours.” Barrentine v. Arkansas-Best

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Freight Sys., Inc., 450 U.S. 728, 739 (1981).

Prompt notification advances “the principal

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II.

Similarly Situated Class Members

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The Court finds that the MFL Consultants are similarly situated to plaintiffs. Plaintiffs and other

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MFL Consultants all share the same job title and similar duties. MHN has standard policies, set forth

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in the MFLC Provider Manual and MFLC Program Summary, that apply to all MFL Consultants.

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Sagafi Decl., Exs. A & B. They also are all subject to the same employment agreement with MHN, the

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Provider Services Task Order Agreement. Second Amended Complaint (“SAC”), Ex. A. MHN

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classifies all MFL Consultants as exempt employees, and therefore does not pay them for overtime

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hours. SAC ¶ 48.

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Additionally, plaintiffs have made a showing that the MFL Consultants have similar duties,

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regardless of the type or location of assignment they are given. One MHN document explains that the

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MFL Consultants’ main role is to “[p]rovide short term, situational, problem solving non-medical

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counseling services in support of military personnel and their families.” SAC ¶ 54. MFL Consultants

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testify that their work on different assignments is fundamentally similar, and MHN treated them as
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interchangeable units. See Supp. Gliedt-Peter Decl., ¶¶ 9-14 (describing working “interchangeably”

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with an MFLC doing an adult assignment while he was working on a child assignment, and also

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participating in training with MFLCs on rotational, embedded, and surge assignments); Supp. Platt

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Decl., ¶¶ 6, 9, 12-13 (describing the work performed on rotational, embedded, and surge assignments,

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and services for children and adults, as “fundamentally the same”). Indeed, one MFL Consultant

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explained that the “MFLC position was, by design, standardized so that any fully trained MFLC could

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step in and perform the job duties of any other MFLC with little to no disruption in services.” Hennis

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Decl. ¶ 8.
Defendants argue that the individual differences among the MFL Consultants’ work experiences

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United States District Court
For the Northern District of California

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means that they are not “similarly situated” for the purposes of conditional FLSA collective action

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certification. They point to the changing goals of the military, declarations from MHN supervisors that

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dispute the fact that MHN had control over the MFL Consultants, and the different locations, types of

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clients, and types of assignments that varied amongst the MFL Consultants.

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The Court is unpersuaded that these differences preclude a finding that the MFL Consultants are

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similarly situated under the lenient FLSA standards. See, e.g., Hill v. R+L Carriers, Inc., 690 F. Supp.

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2d 1001, 1004 (N.D. Cal. 2010) (certifying FLSA class of individuals who were “City Dispatchers”

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“and any other position(s) who are either called, or work(ed) as, dispatchers”); Adams, 242 F.R.D. at

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537-38 (certifying a nationwide FLSA class of employees working in over “500 different locations,

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under more than fifty different contracts and in thirty-six different states,” and emphasizing that the

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plaintiffs were similarly situated because they were “subject to the same alleged policy”). Here, the

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MFL Consultants have the same job title; perform substantially similar activities; are governed by the

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same Provider Services Task Order Agreement, Provider Manual, and Program Summary; and, most

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importantly, are all considered exempt employees that MHN does not pay for overtime. Plaintiffs have

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made the requisite showing that the MFL Consultants are in a substantially similar position; they need

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not show that the position is identical.

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CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiffs’ motion for conditional FLSA collective
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action certification. The Court ORDERS the parties to meet and confer regarding the notice and notice

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procedures, and jointly file a proposed notice by no later than May 3, 2013. Additionally, the Court

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ORDERS defendants to produce to plaintiffs in Microsoft Excel or comparable format the names, all

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known addresses, all known e-mail addresses, and all known telephone numbers of all known MFLCs,

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by no later than May 17, 2013. This resolves Docket No. 54.

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IT IS SO ORDERED.

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Dated: April 25, 2013
SUSAN ILLSTON
United States District Judge

United States District Court
For the Northern District of California

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