Cuevas v. ConAm Management Corporation et al

Filing 59

ORDER Granting Plaintiff's Motion for Conditional Certification; Granting in Part and Denying in Part Plaintiff's Motion for Production of Collective Members' Contact Information; and Granting in Part and Denying in Part Plaintiff's Request for Approval of Notice to the Members of the Collectives 37 . The hearing set on October 25, 2019 shall be vacated. Signed by Judge Gonzalo P. Curiel on 10/21/19. (dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

ELIZABETH CUEVAS, as an individual
and on behalf of all others similarly
situated,

13
14
15
16
17
18

Case No.: 18cv1189-GPC(LL)
ORDER GRANTING PLAINTIFF’S
MOTION FOR CONDITIONAL
CERTIFICATION; GRANTING IN
PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR
PRODUCTION OF COLLECTIVE
MEMBERS’ CONTACT
INFORMATION; AND GRANTING
IN PART AND DENYING IN PART
PLAINTIFF’S REQUEST FOR
APPROVAL OF NOTICE TO THE
MEMBERS OF THE COLLECTIVES

Plaintiff,
v.
CONAM MANAGEMENT
CORPORATION, a California
corporation; and does 1 through10,
inclusive,
Defendants.

19
20
21

[Dkt. No. 37.]

22
23
24
25
26
27

Before the Court is Plaintiff Elizabeth Cuevas’ motion for an order conditionally
certifying the class as a collective action under the Fair Labor Standards Act, 29 U.S.C. §
216(b), (2) for production of collective members’ contact information, and (3) for
approval of notice to the members of the collectives. (Dkt. No. 37.) An opposition was
filed by Defendant on September 27, 2019. (Dkt. No. 54.) A reply was filed by Plaintiff

28
1
18cv1189-GPC(LL)

1

on October 4, 2019. (Dkt. No. 55.) Based on the reasoning below, the Court GRANTS

2

Plaintiff’s motion for conditional certification of collective action, GRANTS in part and

3

DENIES in part Plaintiff’s motion to direct Defendant to produce collective members’

4

contact information, and GRANTS in part and DENIES in part Plaintiff’s request for

5

approval of notice to the members of the collectives.

6

Background
On September 6, 2019, Plaintiff Elizabeth Cuevas (“Plaintiff”) filed the operative

7
8

first amended complaint (“FAC”) on behalf of herself and other similarly situated

9

employees of Defendant ConAm Management Corporation (“Defendant” or “ConAm”)

10

alleging two causes of action for its failure to pay overtime pursuant to the Fair Labor

11

Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and failure to timely pay overtime

12

wages as required by 29 C.F.R. § 778.106. (Dkt. No. 48, FAC.) Specifically, Plaintiff

13

claims that Defendant failure to pay overtime is based on its failure to calculate and/or

14

factor non-discretionary bonuses into her regular rate of pay in assessing overtime pay.

15

Second, Plaintiff claims Defendant’s Bonus Adjustment or true-up payment pays

16

overtime payments late or not at all. ConAm is a property management and real estate

17

investment company with properties located throughout the United States. (Id. ¶ 2.)
Plaintiff was employed by ConAm from about December 21, 20171 to about March

18
19

29, 2019 as a non-exempt leasing agent/professional at one of Defendant’s properties

20

located in Reno, Nevada. (Dkt. No. 37-3, Cuevas Decl. ¶¶ 2, 3.) In her position as a

21

Leasing Professional, she, as well as other employees, received non-discretionary

22

bonuses from the Lease and Renewal Bonus Program, also referred to as the “Winner’s

23

Circle” program. (Id. ¶ 4; Dkt. No. 54-1, Gillane Decl., Ex. A.) In her position as

24

Leasing Professional, Plaintiff was only eligible for the Winner’s Circle bonus. (Dkt. No.

25

54-1, Gillane Decl., Ex. A.) Other non-exempt employees, such as Community

26
27
28

1

According to ConAm, Plaintiff was hired around January 9, 2018. (Dkt. No. 24-1, Gillane Decl. ¶ 2.)
2
18cv1189-GPC(LL)

1

Managers and Business Managers are also subject to other non-discretionary bonuses.

2

(Id.; Dkt. No. 57, Dadek Decl., Ex. B (UNDER SEAL).)

3

According to Defendant,

4

The Winner’s Circle bonus is based on outstanding achievement in two areas
of property management: (1) new move-ins; and (2) lease renewals. In the
first area, new move-ins, an employee’s bonus is determined by the number
of new apartment leases for which he or she is individually responsible in a
calendar month. For each new move-in with a lease term of six months or
more, the employee is eligible for a flat payment of $50. If the apartment is
one which has undergone significant renovations, the employee is eligible
for an additional premium, which may amount to a $75 flat payment or a
different amount approved by the owner of the property. In the second area,
lease renewals, bonus compensation is pooled. For each lease renewal with
a term of six months or more, $50 (or an amount approved by the owner of
the property) is contributed to a bonus pool. The total bonus pool is then
split evenly among all eligible employees at the property based on the
amount of time worked during that month. New move-ins and lease
renewals are tracked on a monthly basis in the Move In Detail Report and
Resident Activity Detail Report. At the end of each month, data from these
two reports is manually entered into the Winner’s Circle Bonus Worksheet
(“WCB Worksheet”), which is used to determine each employee’s eligibility
for the Winner’s Circle bonus and amount thereof.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ConAm pays its employees twice monthly, on or about the 7th and 22nd
days of each month. Generally speaking, the calculations on the WCB
Worksheet are done by the 15th of the month (for the prior month’s activity)
and the employee, if eligible, receives any Winner’s Circle bonus payment
on the 22nd of the month. Thus, for example, if an employee earns $500 in
Winner’s Circle bonus compensation during July 2019, she will receive that
bonus amount with her paycheck on August 22, 2019. Employees working
overtime receive time-and-a-half for those overtime hours based on their
hourly rate for the applicable pay period, but the Winner’s Circle bonus is
not factored into the employee’s overtime rate during that pay period.
Rather, the employee receives a “Bonus Adjustment” – essentially a true-up
payment – in her next paycheck (on the 7th of the month), applying the
Winners’ Circle bonus payment to any overtime worked . . . . ConAm uses
this “true up” method because, as stated above, the Winner’s Circle bonus is
determined after the end of a given month based upon leasing activity during
that month. Accordingly, at the time overtime is paid ConAm simply doesn’t
know whether or not a Winner’s Circle bonus has been earned. Similarly,
3
18cv1189-GPC(LL)

the Bonus Adjustment cannot be calculated until both the Winner’s Circle
bonus is determined and all hours and compensation information has been
fully processed by payroll, which by definition cannot happen until after
the 22nd of the month when the Winner’s Circle bonus is paid.

1
2
3
4
5
6
7

(Dkt. No. 54 at 92 (internal citations omitted).) Plaintiff claims ConAm’s payroll policy
violates the FLSA because it admittedly fails to calculate and/or factor non-discretionary
bonuses into her regular rate of pay in assessing overtime pay and Defendant’s stated
Bonus Adjustment or true-up payment necessarily provides for late overtime payments.

8
9

Discussion
A.

10
11
12
13

Legal Standard on Conditional Certification
The Fair Labor Standards Act of 1938 was enacted for the purpose of protecting all

covered workers from “substandard wages and oppressive working hours.” Barrentine v.
Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981). Section 16(b) provides
employees the right to bring a private cause of action on behalf of herself and other

14

employees “similarly situated” for specified violations of the FLSA but requires that each

15

employee “opt-in” by filing a consent to sue with the court. 29 U.S.C. § 216(b); Does I

16
17
18
19
20
21

thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000). These suits
are known as a “collective action” and allow aggrieved employees “the advantage of
lower individual costs to vindicate rights by the pooling of resources. The judicial system
benefits by efficient resolution in one proceeding of common issues of law and fact
arising from the same alleged discriminatory activity.” Hoffman-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1989).3

22
23

The district court has discretion in determining whether a collective action is
appropriate. Adams v. Inter-Con Sec. Sys., 242 F.R.D. 530, 535 (N.D. Cal. 2007) (citing

24
25
26
2

27
28

Page numbers are based on the CM/ECF pagination.
Although Hoffman-La Roche involved a claim under the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. § 621 et seq., the ADEA incorporates the enforcement provisions of the
FLSA including the “opt-in” provisions of 29 U.S.C. § 216(b).
3

4
18cv1189-GPC(LL)

1

Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004)). The

2

plaintiff bears the burden of showing that the putative collective action members are

3

“similarly situated.” Id. at 535-36; see Harris v. Vector Mktg., Corp., 716 F. Supp. 2d

4

835, 837 (N.D. Cal. 2010) (quoting Murillo v. Pac. Gas & Elec. Co., 266 F.R.D. 468, 470

5

(E.D. Cal. 2010)).

6

Recently, the Ninth Circuit in Campbell v. City of Los Angeles, 903 F.3d 1090,

7

1100, 1109 (9th Cir. 2018), adopted the two-tiered certification process, which developed

8

as “a product of interstitial judicial lawmaking or ad hoc district court discretion”4, under

9

the FLSA. First, at the pleading stage, plaintiffs will file a motion for preliminary

10

certification and demonstrate the “similarly situated” requirement of § 216(b) for

11

purposes of providing notice to putative collective members. Id. at 1109. The notice

12

advises the members that they must affirmatively opt-in to the litigation. Id. At this early

13

stage, the district court’s review is limited to the pleadings and may be “supplemented by

14

declarations or other limited evidence”, and the standard is “lenient.” Id.; Lewis v. Wells

15

Fargo & Co., 669 F. Supp. 2d 1124, 1127 (N.D. Cal. 2009) (“the standard for

16

certification at this stage is a lenient one that typically results in certification.”); Leuthold

17

v. Destination America, Inc., 224 F.R.D. 462, 467 (N.D. Cal. 2004) (citations omitted)

18

(“Because the court generally has a limited amount of evidence before it, the initial

19

determination is usually made under a fairly lenient standard and typically results in

20

conditional class certification.”).

21

Where preliminary certification has been granted and once discovery has been

22

completed or is near completion, the defendant may move for decertification on

23

Plaintiff’s failure to satisfy the “similarly situated” requirement in light of the evidence

24
25
26
27
28

4

The Ninth Circuit noted that 29 U.S.C. § 216(b) provides no guidance on how collective litigation
should proceed. The statute only requires that a collective action may proceed if the workers are
“similarly situated” and affirmatively opt in to the litigation in writing. Campbell, 903 F.3d at 1100.
5
18cv1189-GPC(LL)

1

produced in discovery and the court takes a “more exacting look at the plaintiffs’

2

allegations and the record.” Campbell, 903 F.3d at 1109.
The court in Campbell also defined the meaning of “similarly situated” under the

3
4

FLSA. Relying on the FLSA’s remedial purpose, the Ninth Circuit held that to be

5

“similarly situated”, “plaintiffs must be alike with regard to some material aspect of their

6

litigation.” Id. at 1114 (emphasis in original). “[I]f the party plaintiffs’ factual or legal

7

similarities are material to the resolution of their case, dissimilarities in other respects

8

should not defeat collective treatment.” Id. “[W]hat matters is not just any similarity

9

between party plaintiffs, but a legal or factual similarity material to the resolution of the

10

party plaintiffs’ claims, in the sense of having the potential to advance these claims,

11

collectively, to some resolution.” Id. at 1115. In other words, “[p]arty plaintiffs are

12

similarly situated, and may proceed in a collective, to the extent they share a similar issue

13

of law or fact material to the disposition of their FLSA claims.” Id. at 1117.

14

B.

15
16
17
18
19

Analysis
Plaintiff seeks conditional certification of two nationwide collectives. First, she

seeks a collective class of:
All persons who are or have been employed by the Company in the United
States as non-exempt employees at any time from June 6, 2015, through the
present, who received overtime pay and non-discretionary incentive pay,
including without limitation, bonuses (the “Class”).

20
21
22
23
24
25

Second, she seeks a subclass of individuals who receive non-discretionary bonuses from
the same incentive program as Plaintiff to include:
All persons who are or have been employed by the Company in the United
States as non-exempt employees at any time from June 6, 2015, through the
present, who received overtime pay and non-discretionary incentive pay
from the bonus program referred to as the “Winner’s Circle” bonus program
(the “Winner’s Circle Subclass”).

26
27

(Dkt. No. 48, FAC ¶ 13.) Plaintiff argues that she is similarly situated to putative

28

collective members because all are subject to ConAm’s uniform payroll policy. In
6
18cv1189-GPC(LL)

1

support, she presents Defendant’s discovery responses. ConAm reports that over 1,000

2

current and former employees received compensation from the Winner’s Circle program

3

and it also paid about $183,143.78 in “true-up” compensation for Winner’s Circle

4

bonuses. (Dkt. No. 37-2, Dadak Decl., Ex. C, Interrog. Nos, 6, 8.) ConAm also admitted

5

that it computes Winner’s Circle compensation and true-up payments, that it controls its

6

payroll, and that it does not pay the true-up payments in the same pay period that it pays

7

the corresponding Winner’s Circle bonus and overtime. (Id., Ex. D, RFA’s Nos. 3, 4, 7,

8

8, 12, 15.) This demonstrates that ConAm has a uniform policy in calculating overtime

9

pay and the timing of overtime pay for those receiving Winner’s Circle bonuses.

10

Plaintiff also claims she is similarly situated to all non-exempt ConAm employees

11

who receive other types of non-discretionary bonus. She explains that because

12

Community Managers and Business Managers are subject to the Winner’s Circle

13

program, ConAm must also use the same payroll system. (Dkt. No. 54-1, Gillane Decl.,

14

Ex. A.) Furthermore, Community Managers and Business Managers are considered non-

15

exempt employees entitled to overtime pay and are subject to other non-discretionary

16

bonus programs. (Dkt. No. 54-1, Gillane Decl., Ex. A (“Community/Business managers

17

are also eligible for the Community/Business Manager Bonus Program”).) Therefore,

18

these employees are also subject to the same uniform payroll policy as the Winner’s

19

Circle bonuses.

20

Defendant first contends that Plaintiff has not demonstrated she is similarly

21

situated to putative collective members in California who have agreed to arbitration

22

because she is not subject to an arbitration agreement, and in the alternative, if the Court

23

conditionally certifies a collective class, the Court should exclude employees subject to

24

arbitration. Plaintiff responds that her inability to challenge the enforceability of other

25

employees’ arbitration agreements is not an issue because in a collective action, all opt-in

26

plaintiffs will serve as co-equal party plaintiffs and therefore, any challenges may be

27

raised by them. Further this “material difference” is not sufficient to defeat conditional

28

certification.
7
18cv1189-GPC(LL)

1

District courts within the country are divided on whether notice of a FLSA

2

collective action should be provided to employees who have signed arbitration

3

agreements. In re JPMorgan Chase & Co., 916 F.3d 494, 499 n. 6 (5th Cir. 2019) (noting

4

that district courts are “splintered” over this issue); Romero v. Clean Harbors Surface

5

Rentals USA, Inc., -- F. Supp. 3d--, 2019 WL 4280237, at *2 (D. Mass. Sept. 11, 2019)

6

(“District courts around the country have generated conflicting answers to the question of

7

whether workers who signed arbitration agreements can receive notice of an FLSA

8

collective action.”); Lijun Geng v. Shu Han Ju Rest. II Corp., 18cv12220 (PAE) (RWL),

9

2019 WL 4493429, at *8 (S.D.N.Y. Sept. 9, 2019) (“District courts generally have been

10

divided as to whether notice of an FLSA collective action should be sent to employees

11

who have agreed to arbitrate claims against their employer.”). Recently, the Fifth Circuit,

12

the only circuit to address this issue, held that a district court does not have discretion “to

13

send or require notice of a pending FLSA collective action to employees who are unable

14

to join the action because of binding arbitration agreements.” In re JPMorgan Chase.,

15

916 F.3d at 504. At the conditional certification stage, “if there is a genuine dispute as to

16

the existence or validity of an arbitration agreement, an employer that seeks to avoid a

17

collective action, as to a particular employee, has the burden to show, by a preponderance

18

of the evidence, the existence of a valid arbitration agreement for that employee.” Id. at

19

502-03. In the case, the parties did not dispute the existence or enforceability of the

20

arbitration agreements. Id. at 498.

21

The Ninth Circuit has not yet ruled on this issue, and district courts in this circuit,

22

even post In reJPMorgan Chase, have granted conditional certification providing notice

23

to potential collective members and deferred the merits-based question of whether the

24

arbitration agreements are valid and enforceable to the second stage. See Monplaisir v.

25

Integrated Tech Grp, LLC, No. C 19-1484 WHA, 2019 WL 3577162, at *3 (N.D. Cal.

26

Aug. 6, 2019) (granting conditional certification and deferring issue of whether

27

arbitration agreements are valid and enforceable to second stage of collective action

28

process); Gonzalez v. Diamond Resorts Int’l Mktg., Inc., Case No. 18cv979-APG-CWH,
8
18cv1189-GPC(LL)

1

2019 WL 3430770, at *5 (D. Nev. July 29, 2019) (same). As one district court noted in

2

2015, “[n]o district court in our circuit has denied conditional certification on the basis

3

that some members of the proposed collective may be subject to valid and enforceable

4

arbitration clauses. The decisions that have addressed that issue have all found that the

5

issue of the enforceability of arbitration clauses related to the merits of the case and

6

therefore should be dealt with in phase two.” Saravia v. Dynamex, Inc., 310 F.R.D. 412,

7

424 (N.D. Cal. 2015) (citing Shaia v. Harvest Mgmt. Sub LLC, 306 F.R.D. 268 (N.D.

8

Cal. 2015) (Chief Judge Phyllis Hamilton); Deatrick v. Securitas Sec. Servs. USA, Inc.,

9

No. 13–cv–05016, 2014 WL 5358723 (N.D. Cal., Oct. 20, 2014) (Judge Jon Tigar); Boyd

10

v. Bank of America Corp., No. 13–cv–0561, 2013 WL 6536751 (C.D. Cal. Dec. 11,

11

2013) (Judge David Carter)); see also Conde v. Open Door Mktg., LLC, 223 F. Supp. 3d

12

949, 968 (N.D. Cal. 2017) (arbitration agreements do not preclude conditional

13

certification). Even the weight of authority outside the Ninth Circuit favors handling the

14

arbitration issue during stage two of the certification process. See Greene v. Omni

15

Limousine, Inc., Case No. 18cv1760-GMN-VCF, 2019 WL 2503950, at *4 (D. Nev. June

16

15, 2019) (“The weight of authority outside the Ninth Circuit similarly recognizes the

17

issue of arbitrability as one best handled during stage two of the certification process.”);

18

Lijun Geng, 2019 WL 4493429, at *9 (S.D.N.Y. Sept. 9, 2019) (following the greater

19

weight of authority and allowing notice of collective action to potential opt-ins who may

20

be subject to an arbitration agreement); Guzman v. Three Amigos SJL Inc., 117 F. Supp.

21

3d 516, 526 (S.D.N.Y. 2015) (“[T]he fact that some of the contracts have arbitration

22

provisions . . . [does not] create any differences between plaintiffs and other [potential

23

plaintiffs] with respect to whether defendants violated the FLSA.”); Romero v. La Revise

24

Assoc., L.L.C., 968 F. Supp. 2d 639, 647 (S.D.N.Y. 2013) (“[C]ourts have consistently

25

held that the existence of arbitration agreements is irrelevant to collective action approval

26

because it raises a merits-based determination.”).

27
28

Therefore, Defendant’s reliance on In re JPMorgan Chase to support its position is
not persuasive and the Court follows the district courts in this circuit and concludes that
9
18cv1189-GPC(LL)

1

conditional certification is not defeated because certain California employees signed

2

arbitration agreements.

3

Second, Defendant argues that Plaintiff is not similarly situated to some employees

4

who receive “true-up” payments later than others. Defendant reports that it has a regular

5

practice of paying employees a true-up payment in a particular pay period but that it

6

occasionally misses that payment and makes the payment later. Plaintiff contends that

7

Defendant wants to defeat conditional certification based on a few occasions its conduct

8

is even worse than she alleges. She argues that on conditional certification, collective

9

members need not be identical in all respects but just in some material way.

10

Here, differences between employees based on the timing of receiving “true-up”

11

payments do not defeat a finding that collective members are “similarly situated.”

12

Plaintiff argues that ConAm failed to timely pay her overtime. According to Plaintiff,

13

“true-up” payments as described by Defendant constitutes an admission that it does not

14

timely pay employees’ overtime. Whether the “true-up” payments are paid one month

15

later, two months later, or not at all, all those payments are in violation of the FLSA.

16

Accordingly, the Court disagrees with Defendant’s argument.

17

Finally, Defendant argues that the Court should limit the putative collective to

18

those employees who received Winner’s Circle bonus payments, and not employees

19

subject to other bonus programs. ConAm argues that not only does Plaintiff have no

20

standing to pursue claims on a bonus program she was not subject to but she is also not

21

“similarly situated” to employees subject to the other bonus programs. Plaintiff replies

22

that Defendant administers its payroll the same with respect to all employees based on a

23

single policy and she is similarly situated to all employees who receive non-discretionary

24

bonus payments.

25

On a motion for conditional certification, the Court looks at whether the plaintiff is

26

“similarly situated” to other employees. As described by the Ninth Circuit in Campbell, a

27

putative collective class differs from a Rule 23 class because the FLSA leaves no doubt

28

that “every plaintiff who opts in to a collective action has party status.” Campbell, 903
10
18cv1189-GPC(LL)

1

F.3d at 1104. The only consequence of conditional certification is “the sending of court-

2

approved written notice” to workers who may wish to join the litigation as individuals;

3

there is no gatekeeping role as required by Rule 23’s class certification. Id. at 1101.

4

Defendant has not provided any legal support for its standing argument. The one

5

relevant case Defendant cites alleging violations of the FLSA held, on summary

6

judgment, that the named plaintiff, himself, did not have standing to challenge the

7

legality of the policy, not that the named plaintiff had no standing to pursue collective

8

class that includes additional policies he or she was not subject to. See Stein v.

9

Rousseau, No. CV 05-264-FVS, 2006 WL 224043, at *2-3 (W.D. Wash. Jan. 30, 2006).

10

Because opt-in plaintiffs each become a party to the action, a requirement that the

11

named plaintiff have standing for each opt-in plaintiffs’ claims is not persuasive.

12

Plaintiff alleges that ConAm maintains a single policy that fails to properly include non-

13

discretionary bonuses in calculating overtime pay and it pays portions of overtime

14

payment late or not at all. Leasing Professionals, Business Managers and Community

15

Managers are all subject to the Winner’s Circle program. (Dkt. No. 54-1, Gillane Decl.,

16

Ex. A.) Moreover, Community Managers and Business Managers are also subject to

17

other non-discretionary bonus programs. (Dkt. No. 57, Dadek Decl., Ex. B (UNDER

18

SEAL).) Because Plaintiff has plausibly demonstrated that ConAm handles its payroll

19

uniformly as to non-discretionary bonuses, the lenient standard has been met. See

20

Campbell, 903 F.3d at 1109 (“’lenient’” standard . . . sometimes articulated as requiring

21

‘substantial allegations,’ sometimes as turning on a ‘reasonable basis,’ but in any event

22

loosely akin to a plausibility standard, commensurate with the stage of the

23

proceedings.”). If discovery reveals that the collective members are not “similarly

24

situated,” ConAm may move to decertify the collective class.
Accordingly, the Court GRANTS Plaintiff’s motion to conditionally certify two

25
26

collective classes under the FLSA.

27

///

28

///
11
18cv1189-GPC(LL)

1

B.

Proposed Method and Form of Notice

2

Once a collective class has been conditionally certified, potential FLSA class

3

members are entitled to “accurate and timely notice concerning the pendency of the

4

collective action, so that they can make informed decisions as to whether to participate.”

5

Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). The Court has authority

6

and discretion to monitor the preparation and distribution of the notice, to “ensure that it

7

is timely, accurate, and informative.” Id. at 172

8

In her motion, Plaintiff requests that the Court direct Defendant to provide her

9

counsel with the names, job titles, dates of employment, last known mailing and email

10

addresses and phone numbers of the class members in order to assist with issuing the

11

notice. If any collective members’ mail is returned by the post office, Plaintiff asks that

12

Defendant should be ordered to provide additional identifying information such as dates

13

of birth and/or social security numbers to help with effectuating notice. Defendant

14

objects to requiring it to provide birthdates and social security numbers for collective

15

members as improper.

16

Courts routinely allow the production of employees’ mail and email addresses and

17

telephone numbers. Knight v. Concentrix Corp., Case No. 18cv7101-KAW 2019 WL

18

3503052, at *5 (N.D. Cal. Aug. 1, 2019) (quoting Benedict v. Hewlett-Packard Co., No.

19

13cv1119-LHK, 2014 WL 587135, at *14 (N.D. Cal. Feb. 13, 2014) (“Courts routinely

20

approve the production of email addresses and telephone numbers with other contact

21

information to ensure that notice is effectuated. . . .”)). As to birthdates and social

22

security numbers, while some courts grant such unopposed requests by plaintiffs, see

23

Wong v. HSBC Mortg. Corp. (USA), No. C-07-2446 MMC, 2008 WL 753889, at *4

24

(N.D. Cal. Mar. 19, 2008) (granting the plaintiffs’ unopposed request for last four digits

25

of employees’ social security number); Lewis v. Wells Fargo & Co., 669 F. Supp. 2d

26

1124, 1130 (N.D. Cal. 2009), other courts decline granting such requests as they would

27

violate an employee’s privacy rights, see Russell v. Swick Mining Servs., USA Inc., No.

28

CV 16-2887 PHX, JJT, 2017 WL 1365081, at *5 (D. Ariz. Apr. 14, 2017) (denying the
12
18cv1189-GPC(LL)

1

plaintiff’s request for employees’ social security numbers and birth dates); Delgado v.

2

Ortho-McNeil, Inc., No. SACV 07-263 CJCMLGX, 2007 WL 2847238, at *3 (C.D. Cal.

3

Aug. 7, 2007)). In this case, the Court has concerns regarding the production of

4

employees’ birthdates and social security numbers for privacy reasons without Plaintiff

5

providing sufficient reasons for their disclosure. Accordingly, the Court GRANTS

6

Plaintiff’s request to direct Defendant to provide her counsel with names, job titles, dates

7

of employment, last known mailing and email addresses and phone numbers of the class

8

members and DENIES her request for production of their birthdates and social security

9

numbers.

10

Next, Plaintiff asks the Court to allow her counsel to send a follow-up postcard to

11

any class members who have not responded within 30 days after the mailing of the initial

12

notice. She argues that it is common practice for courts to direct a follow-up notice as it

13

assists with the dissemination of notice to similarly situated employees. ConAm objects

14

to permitting Plaintiff’s counsel to send a follow-up notice because courts in other

15

districts have concluded that reminder notices could be interpreted as the Court

16

encouraging a lawsuit and Plaintiff has not demonstrated why the initial notice would not

17

be sufficient.

18

District courts in this circuit routinely approve reminder notices 30 days prior to

19

the end of the opt-in period. See Benedict v. Hewlett-Packard Co., Case No. 13cv119-

20

LHK, 2014 WL 587135, at *14 (N.D. Cal. Feb. 13, 2014) (courts commonly approve

21

reminder notices); Helton v. Factor 5, Inc., No. C 10-4927 SBA, 2012 WL 2428219, at

22

*7 (N.D. Cal. June 26, 2012) (allowing a reminder postcard to potential plaintiffs);

23

Sandoval v. Tharaldson Employee Mgmt., No. EDCV 08-00482-VAP(OPx), 2009 WL

24

3877203, at *11 (C.D. Cal. Nov. 17, 2009) (allowing additional notice before granting

25

court approval). Thus, following the district courts in this circuit, the Court grants

26

Plaintiff’s request for a follow-up postcard to those class members who have not

27

responded within 30 days after the mailing of the initial notice.

28
13
18cv1189-GPC(LL)

1

Finally, Plaintiff requests that the Court order Defendant to post the notice at all of

2

Defendant’s worksites in the same areas in which it is required to post FLSA

3

requirements in order to assist with dissemination of the notice. ConAm objects arguing

4

that courts in this circuit often deny these requests.

5

“First class mail is ordinarily sufficient to notify class members who have been

6

identified.” Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 492-93 (E.D. Cal.

7

2006). But there is no bar to posting in Defendant’s workplace as courts have approved

8

this method of notice. Id. at 493. Posting at the defendant’s workplace provides notice to

9

current employees and courts have concluded that a defendant most likely has the most

10

current contact information of its employees, and therefore have denied the plaintiff’s

11

request to post the notice at the worksite. See Litvinova v. City and Cnty. of San

12

Francisco, Case No. 18cv1494-RS, 2019 WL 1975438, at *5 (N.D. Cal. Jan. 3, 2019)

13

(noting plaintiff had not explained why posting notice in the workplace is necessary in

14

light of sending the notice by mail, email, sending reminder postcards and

15

supplementation by production of telephone numbers); Russell v Wells Fargo & Co., No.

16

C 07-3993 CW, 2008 WL 4104212, at *5 (N.D. Cal. Sept. 3, 2008) (“Defendant,

17

however, is unlikely to have obsolete contact information for its current employees, and

18

posting notice in the workplace or distributing it via the payroll system will do nothing to

19

notify those class members who are no longer employed by Defendant”); Guy v. Casal

20

Inst. of Nevada, LLC, No. 13cv2263-APG, 2014 WL 1899006, at *7 (D. Nev. May 12,

21

2014) (denying request to post notices in the defendant’s workplace because there was no

22

indication that the defendants are unable to provide current mailing and email addresses

23

of the collective members).

24

Here, Plaintiff has not provided any reason why mailing or emailing the notice to

25

collective members as well as a reminder notice would not be sufficient to inform current

26

employees. Moreover, as a current employer, ConAm most likely has the most current

27

contact information for current employees who are potential collective members. As

28
14
18cv1189-GPC(LL)

1

such, the Court denies Plaintiff’s request to order ConAm to post the notice at its

2

worksites.

3

Next, ConAm argues that Plaintiff’s proposed 90-day opt-in period should be 60

4

days because Plaintiff has not stated why she needs that much time to notify potential

5

collective members. Plaintiff opposes arguing that shortening the time to 60 days will

6

place an unnecessary obstacle in reaching former employees who need to be located.

7

For purposes of a deadline to opt-in, “timeframes of sixty to ninety days appear to

8

have become the presumptive standard in this district.” Ramirez v. Ghilotti Bros. Inc.,

9

941 F. Supp. 2d 1197, 1207 (N.D. Cal. 2013) (quoting Sanchez v. Sephora USA, Inc.,

10

No. 11–03396–SBA, 2012 WL 2945753, at *6 (N.D. Cal. July 18, 2012)); Benedict,

11

2014 WL 587135, at *13 (granting ninety days to opt-in).

12

In this case, Plaintiff will have to locate former employees of ConAm, and in the

13

event a former employee is unable to be located, additional time will be necessary to

14

locate these individuals. Therefore, 90 days should be reasonable to address any

15

potential issues in locating former employees. Accordingly, the Court approves a 90-day

16

opt-in period.

17

Lastly, ConAm objects to Plaintiff designating herself as the agent for those who

18

opt-in and her counsel as the legal representative for members of the collective who join.

19

It asserts that collective members should be informed of their right to retain their own

20

counsel. Plaintiff, in her reply, merely argue that adequacy of representation is not

21

required under the FLSA without addressing opt-in plaintiffs’ right to choose their own

22

representation.

23

The proposed notice states that opt-in plaintiffs will be represented by Plaintiff’s

24

counsel and that Cuevas will be the opt-in plaintiffs’ agent. (Dkt. No. 37-1, Ex. A.)

25

There is no provision that opt-in plaintiffs may retain their own counsel. In a collective

26

action, as noted by Plaintiff in her motion, each opt-in plaintiff joins as “co-equal party

27

plaintiffs.” (See Dkt. No. 55 at 6.) Therefore, proposed plaintiffs should be notified that

28

they have a choice to either retain their own counsel or be represented by named
15
18cv1189-GPC(LL)

1

plaintiff’s counsel. See Senne v. Kansas City Royals Baseball Corp., Case No. 14cv608-

2

JCS, 2015 WL 6152476, at *19 (N.D. Cal. Oct. 20, 2015) (providing notice that “If you

3

choose to join this suit, you may retain your own counsel (at your own expense) or

4

choose to be represented by the attorneys who represent the Named Plaintiffs and any

5

players who consent to join this suit.”); Heaps v. Safelite Solutions, LLC, No. 10cv729,

6

2011 WL 1325207, at *9 (S.D. Ohio Apr. 5, 2011) (“the notice shall contain a statement

7

indicating that the opt-in plaintiffs are entitled to be represented by the named Plaintiffs'

8

counsel or by counsel of his or her own choosing.”); Waterscheid v. City of El Monte,

9

2018 WL 6321645, at *4 (C.D. Cal. Sept. 6, 2018) (no reason why the notice should not

10

contain information about retaining one’s own attorney and “the only reason the Court

11

can guess as to why Plaintiffs contest this proposal is the desire of Plaintiffs' counsel to

12

maximize their own recovery in the case.”).

13

Accordingly, the Court directs that Plaintiff revise the notice to include language

14

that opt-in plaintiffs may appear by themselves or choose the named Plaintiff to be their

15

agent and may retain their own counsel or choose to be represented by the named

16

Plaintiff’s attorney.

17
18
19
20
21
22

Conclusion
The Court GRANTS Plaintiff’s motion for conditional certification of collective
action for the following classes,
All persons who are or have been employed by the Company in the United
States as non-exempt employees at any time from June 6, 2015, through the
present, who received overtime pay and non-discretionary incentive pay,
including without limitation, bonuses (the “Class”).

23
24
25
26
27

and
All persons who are or have been employed by the Company in the United
States as non-exempt employees at any time from June 6, 2015, through the
present, who received overtime pay and non-discretionary incentive pay
from the bonus program referred to as the “Winner’s Circle” bonus program
(the “Winner’s Circle Subclass”).

28
16
18cv1189-GPC(LL)

1

The Court DIRECTS Defendant to produce potential class members’ names, job

2

titles, dates of employment, last known mailing and email addresses and phone numbers

3

to Plaintiff’s counsel no later than fourteen (14) days after the entry of this Order.

4

Plaintiff shall incorporate the aforementioned changes into her proposed Notice, and the

5

parties shall meet and confer and submit a joint proposed final Notice and Consent to

6

Join form to the Court within seven (7) days of filed date of this Order.

7

The hearing set on October 25, 2019 shall be vacated.

8

IT IS SO ORDERED.

9

Dated: October 21, 2019

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
18cv1189-GPC(LL)