Brayman v. Keypoint Government Solutions, Inc.

Filing 69

ORDER by Judge William J. Martinez on 11/01/2018, re: 64 Defendant's Motion to Strike is DENIED; 22 Plaintiff's Motion for Conditional Certification and Court-Authorized Notice is GRANTED IN PART as to conditional certification, as se t forth above. Plaintiffs Motion is DENIED IN PART WITHOUT PREJUDICE as to approval of the form of notice submitted at ECF No. 22-2. The parties should attempt to stipulate to a notice and file a joint motion to approve a notice and consent to join form no later than November 16, 2018. Plaintiffs Motion for Conditional Certification and Court-Authorized Notice (ECF No. 22) is GRANTED IN PART as to conditional certification, as set forth above. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 18-cv-0550-WJM-NRN
RACHEL BRAYMAN, on behalf of herself and all similarly situated persons,
Plaintiff,
v.
KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation,
Defendant.

ORDER GRANTING IN PART PLAINTIFF’S
MOTION FOR CONDITIONAL CERTIFICATION

Plaintiff Rachel Brayman (“Plaintiff”) brings this action against Defendant
KeyPoint Government Solutions, Inc., (“Defendant”) for alleged violations of the Fair
Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”). (ECF No. 1.) Plaintiff’s FLSA
claim concerns Defendant’s alleged failure to properly compensate employees for
overtime hours worked and an alleged policy of only permitting overtime in certain
circumstances. (Id. ¶¶ 20–25.)
Currently before the Court is Plaintiff’s “Motion for Conditional Certification and
Court-Authorized Notice” (the “Motion”). (ECF No. 22.) Plaintiff seeks to have this
matter conditionally certified as a collective action under the FLSA for “all persons who
worked as Field Investigators, Background Investigators, or in other positions with
similar job duties for Defendant” from March 8, 2015 to present. 1 (ECF No. 1 ¶12; ECF

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Plaintiff notes that the proposed collective action definition does not include
investigators who worked for Defendant as independent contractors. (ECF No. 22 at 3.)

No. 22 at 2.) Plaintiff also seeks to have her proposed notice approved by the Court.
Also before the Court is Defendant’s Motion to Strike Portions of Plaintiff’s Declaration
(“Motion to Strike”). (ECF No. 64.) For the reasons explained below, Defendant’s
Motion to Strike is denied and Plaintiff’s Motion is granted as to conditional certification
and denied as to the proposed notice. T he parties are instructed to meet and confer
regarding the proposed notice, taking into account the Court’s below instructions, and
submit a revised proposed notice by November 16, 2018.
I. BACKGROUND
Defendant provides investigative services and background screenings for the
federal government and private sector. (ECF No. 1 ¶¶ 4–5.) Defendant is
headquartered in Loveland, Colorado, and has employees throughout the United
States, Puerto Rico, and Guam. (Id. ¶¶ 3, 7.) Background investigation services are
performed by Defendant’s Field Investigators, Background Investigators, or other
similar positions (collectively, “Investigators”). (Id. ¶ 6; ECF No. 22 at 2.) Investigators’
job duties include “performing background investigations on individuals seeking to
obtain [a] security clearance” and require Investigators to conduct interviews, collect
documents and records, catalogue records obtained from law enforcement agencies,
and compile reports. (ECF No. 22-4 at 2; see also ECF No. 22-5 (job descriptions).)
Defendant explains that Field Investigators are divided among geographic
regions, each of which has a Field Manager and a Logistics Analyst. (ECF No. 29 at 2;
ECF No. 29-1 at 2.) Field Managers supervise the Field Investigators in the region and
Logistics Analysts are responsible for assigning work to Field Investigators (though

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Field Managers may occasionally assign work as well). (ECF No. 29 at 2; ECF No. 297 at 2.) Work is assigned to Field Investigators on a “source unit” basis; the number of
source units depends on the task performed and the weekly source unit expectations
for a Field Investigator depend on the individual’s experience. (ECF No. 29-1 at 2.)
Plaintiff worked as a Field Investigator for Defendant from approximately
September 2014 to June 2017. (ECF No. 1 ¶ 9; ECF No. 22-4 at 2.) Plaintif f worked
remotely from her residence in New Jersey and covered a geographic territory in New
Jersey. (ECF No. 1 ¶ 10; ECF No. 22-4 at 2.)
Plaintiff alleges that Defendant had a “common policy and/or practice” of
encouraging or requiring Plaintiff and others to work unpaid overtime hours. (ECF
No. 1 ¶ 16.) Specifically, Plaintiff contends that she regularly had to work unpaid
overtime hours to meet Defendant’s production requirements, but was not paid for
those overtime hours. (Id. ¶¶ 17–18.) Plaintiff estimates for the week of November
13–19, 2016, she worked between 55 and 60 hours, but was not paid for her overtime
hours. (Id. ¶ 19.) Although Plaintiff and others were required to record hours worked in
an electronic timekeeping system, Plaintiff contends that the hours recorded do not
reflect all the hours Plaintiff or other worked in part because Defendant instructed
Plaintiff and other to underreport actual hours worked. (Id. ¶¶ 20, 22.) Plaintiff also
claims that Defendant modified the time records of Plaintiff and others to reflect fewer
overtime hours worked. (Id. ¶ 23.) Plaintiff states that her supervisor acknowledged “in
emails and on teleconference calls that Plaintiff and other Investigators worked
overtime hours, but refused to approve all the overtime hours that they worked.” (Id.
¶ 24.) Plaintiff claims that Defendant’s unlawful conduct is “widespread, repetitious,
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and consistent” as well as “willful and in bad faith.” (Id. ¶¶ 25–26.)
In support of the Motion, Plaintiff submits her own declaration as well as
declarations from six other former Investigators, namely Desiree Gaudet, Tasha
George, Ebony Holmes, Catiana Munoz, DeAijha Perry, and Paul Tschiffely. (ECF
No. 22-4.) These individuals have all opted to join the case. (ECF Nos. 1-2; 8-1; 17-1;
18-1.) These declarations demonstrate that Investigators covered specific geographic
territories in various parts of the United States (District of Columbia, Louisiana,
Maryland, New Jersey, and Virginia) in substantially similar positions. (ECF No. 22-4.)
The declarations each state that the individual was not paid for all of the overtime hours
worked, could only record overtime if the production quota was met, and was
discouraged from reporting all overtime hours worked. (Id.)
In response, Defendant submits a declaration from Marci Haabestad,
Defendant’s Chief People Officer, stating that Defendant’s official policy is that all hours
worked, regular or overtime, must be recorded. (ECF No. 29-1 at 2–3; see ECF No. 292.) Defendant also submits the declaration of Ryan Haunfelder, Defendant’s Head of
Data Science, which states that 66% of the time when an Investigator recorded
overtime, the same Investigator was, on average, 2.76 source units behind their
production quota. (ECF No. 29-17 at 2.) Of the 19 individuals who filed consents to
join, 12 had not met his or her production quota when he or she recorded overtime. (Id.
at 3–7; ECF No. 29 at 5.) By implication, the other seven individuals always met their
production quota when they asked for overtime.
Defendant also notes that a number of Field Investigators signed dispute
resolution agreements in October 2015, and estimates that approximately 2,596
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individuals of the 4,231 in the putative collective action are bound to litigate any claim
for unpaid wages under the FLSA in individual, binding arbitration. (ECF No. 29 at 5–6;
ECF No. 29-1 at 4.)
Defendant also notes that approximately 54% of the individuals employed as
Field Managers and Logistics Analysts since March 2015 also served as Field
Investigators on or after March 2015 and are thus potential members of the putative
collective action. (ECF No. 29 at 5; 29-1 at 4.) Defendant does not state the total
number of persons who have served in both capacities since March 2015.
II. LEGAL STANDARD
The FLSA permits collective actions when allegedly aggrieved employees are
“similarly situated.” 29 U.S.C. § 216(b). W hether employees are similarly situated is
judged in two stages: a preliminary or “notice stage” (at issue here) and then a more
searching, substantive stage, usually after the close of discovery. Thiessen v. Gen.
Elec. Capital Corp., 267 F.3d 1095, 1102–03, 1105 (10th Cir. 2001). At the notice
stage, a plaintiff requires “nothing more than substantial allegations that the putative
[collective action] members were together the victims of a single decision, policy, or
plan.” Id. at 1102 (internal quotation marks omitted); see also Boldozier v. Am. Family
Mut. Ins. Co., 375 F. Supp. 2d 1089, 1092 (D. Colo. 2005) (apply ing Thiessen
standard).
If the plaintiff meets this standard, the Court may order the defendant to provide
contact information for all employees and former employees that may be eligible to
participate in the collective action, and the Court may approve a form of notice to be

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sent to all of those individuals. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165,
169–74 (1989). Such notice is often necessary because, unlike class actions under
Federal Rule of Civil Procedure 23, collective actions under the FLSA require a party to
opt in rather than opt out. See 29 U.S.C. § 216(b) (“No employee shall be a party
plaintiff to any [collective] action unless he gives his consent in writing to become such
a party and such consent is filed in the court in which such action is brought.”).
Obviously current or former employees cannot opt in if they do not know about the
pending action.
III. ANALYSIS
Defendant claims that, for various reasons, the collective action should not be
conditionally certified. The Court will address these arguments in turn.
A.

Plaintiff’s Declaration
Defendant moves to exclude certain statements from Plaintiff’s March 30, 2018

declaration submitted in support of conditional certification as conflicting with her
August 21, 2018 deposition testimony. (ECF No. 64.) Specifically, Defendant contends
that Plaintiff’s deposition testimony contradicted three material statements in her
declaration regarding Plaintiff’s personal knowledge of whether other Investigators
worked unpaid overtime hours, whether Plaintiff could only record overtime hours if she
met her production quota, and whether Defendant paid Plaintiff for all overtime hours
worked.2

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Defendant also contends that Plaintiff misstated the number of hours she worked per
week in her declaration and subsequently lowered her estimate in her deposition. (ECF No. 64
at 6.) Defendant tacitly acknowledges that this issue is not material to Plaintiff’s request for
certification and goes solely to damages and Plaintiff’s credibility. In any event, the Court does

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Plaintiff’s deposition statements do not contradict or undermine her affidavit in
the manner suggested by Defendant, and the Court finds no reason to strike or
disregard the statements. First, Plaintiff’s affidavit states “[b]ased on my personal
knowledge, observations, and experiences, I believe that other Investigators . . . worked
unpaid overtime hours because of KeyPoint’s policy. . . .” (ECF No. 22-4 at 3, ¶ 17.)
Defendant seeks to strike Plaintiff’s declaration statement based on her statement at
her deposition that she had no knowledge of any other field investigator working unpaid
overtime hours. (ECF No. 64 at 3, 9.) However, Plaintiff did not retract or contradict
her statements regarding her belief that others were subject to the same policy. And
pleading on belief does not undermine Plaintiff’s allegation that others were subject to
the same policy. Defendant has failed to establish lack of an actual dispute, that is,
whether others were in fact subject to the same alleged policy as Plaintiff. Therefore,
the Court will not strike this statement.
In addition, Defendant argues that Plaintiff was unable to confirm whether the
statement “I could only record overtime hours if I had already met my production quota”
as accurate. However, the deposition transcript shows that she stated that the
statement was accurate “[t]o the best of my knowledge at the time when this was
generated.” (ECF No. 65-1 at 16.) She later stated that she did not know whether the
sentence was accurate when asked about instances when she recorded overtime and
had not met her production quota. (Id.) However, Plaintiff also pleads that she was

not make merits or credibility determinations at the conditional certification stage. Bryant v. Act
Fast Delivery of Colo., Inc., 2015 WL 3929663, at *3 (D. Colo. June 25, 2015). Therefore, the
Court will not consider Plaintiff’s revised statement of hours worked, strike the statement from
the declaration, nor strike the declaration as a whole on this basis.

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discouraged from recording such time by her managers, and that there was a policy
against recording certain types of overtime hours. (Id.) Thus, Plaintiff’s statement does
not materially contradict her general premise, such that it would be appropriate to strike
or disregard Plaintiff’s statement.
Finally, Plaintiff testified that she would not have necessarily used the word “all”
in her statement that she “was not paid for all of the overtime hours I worked.” (ECF
No. 64-3 at 4; see ECF No. 22-4 at 2, ¶ 12.) Plaintiff’s statement could reasonably be
read to mean that she was paid for some overtime that she work. For instance, under
Plaintiff’s theory of the case, she may have been paid overtime when she met her
production quota and recorded her overtime hours. Here, Plaintiff’s deposition
statement does not contradict or undermine the affidavit in such a way that the Court
should refuse to consider it in support of conditional certification.
Accordingly, the Court denies Defendant’s Motion to Strike.
B.

Existence of a Decision, Policy or Plan
Defendant argues that Plaintiff is not “similarly situated” to the putative collective

action members within the meaning of 29 U.S.C. § 216(b) because the Field
Investigators did not suffer the same harm as the result of the same decision, policy, or
plan. (ECF No. 29 at 6–7.) At the notice stage, a plaintiff is required to provide
“nothing more than substantial allegations that the putative class members were
together the victims of a single decision, policy or plan.” Thiessen, 267 F.3d at 1102.
The standard is lenient and typically results in conditional certification. Daugherty v.
Encana Oil & Gas (USA), Inc., 838 F. Supp. 2d 1127, 1132 (D. Colo. 2011). A plaintif f

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must establish a reasonable basis for the claim that other employees are similarly
situated. Id. At this stage, the court may “rely on the allegations of the complaint and
any supporting affidavits filed by the plaintiff.” Stallings v. Antero Res. Corp., 2018 WL
1250610, at *3 (D. Colo. Mar. 12, 2018), report and recommendation adopted, 2018
WL 2561046 (D. Colo. Apr. 16, 2018); see Daugherty, 838 F. Supp. 2d at 1132
(granting conditional certification where the allegations in the amended complaint were
supported by two affidavits). Again, however, at this stage of the litigation, the Court
does not resolve factual disputes, decide substantive issues, or make credibility
determinations. Stallings, 2018 WL 1250610, at *3.
The parties do not dispute that the Investigators share similar job duties.
However, they do disagree as to whether the Investigators were victims of a single
decision, policy, or plan. See Peterson v. Nelnet Diversified Solutions, LLC, 2018 WL
3470604, at *6 (D. Colo. Apr. 25, 2018). Plaintif f contends that Defendant has a
common policy of not paying Investigators for certain overtime hours worked by
instructing Plaintiff and others to underreport actual hours worked, modifying
Investigators time records, and refusing to approve all overtime hours. (ECF No. 36 at
2–3.) She asserts that “reliance on production quotas was a method Defendant used to
discourage Investigators from getting paid for all overtime hours.” (Id. at 3.) In
response, Defendant claims that Plaintiff has failed to provide substantial allegations of
any widespread policy or plan, much less one that applies nationwide, and cites its
express policy that all hours be recorded. (ECF No. 29 at 6–11.)
While Defendant points to its policy that all hours be recorded, a written policy

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“does not negate the possibility of an unwritten policy or general practice to the
contrary.” Peterson, 2018 WL 3470604, at *7 n.7 (quoting Shockey v. Huhtamaki, Inc.,
730 F. Supp. 2d 1298, 1304 (D. Kan. 2010)). Here, Plaintif f has provided several
declarations that support her claim that Defendant has an unwritten practice of not
paying certain overtime hours. Given the role of the Court at the conditional certification
stage, the Court will not make factual determinations based on testimony submitted by
Defendant. While Plaintiff certainly could have provided more detail in her complaint
and statistics and declarations submitted in support of the Motion regarding the details
of Defendant’s alleged practice, the allegations in the complaint are sufficiently
substantial to allow conditional certification and notice to potential collective action
members. See Daugherty, 838 F. Supp. 2d at 1133 (“The Court makes this finding
without expressing any opinion as to whether discovery will identify any others who are
similarly situated, whether plaintiff would be able to make a sufficient showing to avoid
decertification of the conditional class, or whether plaintiff's claims in this case have
merit.”).
C.

Potential Conflict Among Conditional Action Members
Defendant relies on Ellerd v. County of Los Angeles to argue that collective

treatment is not warranted because the managers who are putative conditional action
members have allegedly implemented the ad hoc policy being challenged, and thus
there is a conflict with other putative members of the collective action. 2009 WL 98077,
at *5 (C.D. Cal. Apr. 9, 2009). (ECF No. 29 at 11–12.) Plaintif f argues that courts do
not inquire into potential conflicts at the conditional certification stage and that only a

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modest factual showing of a common plan is required. (ECF No. 36 at 7.) See Lee v.
Children’s Place Retail Stores, Inc., 2014 WL 5100608, at *5 (N.D. Ill. Oct. 8, 2014)
(declining to follow Ellerd).
The Court finds that Ellerd is factually distinguishable. In that case, one of the
named plaintiffs alleged that he was not compensated for overtime hours worked in his
role as supervisor, and plaintiffs sought to represent both social workers and their
supervisors. Ellerd, 2009 WL 982077, at *4 (denying conditional certification without
prejudice to allow plaintiffs to bring a motion to certify a class of supervisors or social
workers). Here, Plaintiff seeks only to represent Investigators, some of whom
subsequently became managers in the relevant time period. (ECF No. 1 ¶ 12.)
While a close call, the Court finds that any potential conflict should not preclude
conditional certification at this point in the litigation.
D.

Willfulness
Generally, claims under the FLSA are subject to a two-year statute of limitations,

except for when a plaintiff alleges a willful violation. 29 U.S.C. § 255(a). W hen a
plaintiff alleges a willful violation, a three-year statute of limitations applies. Id. At the
conditional certification stage, a plaintiff must allege willfulness on the part of the
defendant. See Stallings, 2018 WL 1250610, at *7.
Here, Defendant argues that Plaintiff has made only “conclusory allegations” that
Defendant’s alleged violations of the FLSA were willful and focuses on Defendant’s
policy and reminders to employees to record all hours worked. (ECF No. 29 at 14.)
Plaintiff summarily responds in a footnote, citing seven paragraphs from her complaint

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and two cases from this District.
Defendant overlooks Plaintiff’s allegations that Defendant modified or altered
time entries of Plaintiff and others to reflect fewer overtime hours, and that Plaintiff’s
supervisor acknowledged but refused to approve overtime hours worked. (ECF No. 1
¶¶ 23–24.) These allegations, which are not addressed by Defendant, if true, would
support a finding of willfulness on the part of Defendant. Therefore, the Court finds that
Plaintiff has sufficiently alleged willful conduct for purposes of conditional certification of
a 3-year putative class. See Stallings, 2018 WL 1250610, at *7 (citing Fernandez v.
Clean House, 883 F.3d 1296, 1298–99 (10th Cir. 2018)).
E.

Arbitration Contracts
The parties also disagree whether notice should be sent to Field Investigators

whose contracts contained arbitration clauses, or indeed whether those individuals
should included in the collective action. (ECF No. 22 at 3, 13; ECF No. 29 at 12–13.)
The U.S. District Court for the District of Columbia addressed this issue in a
recent decision. See Meyer v. Panera Bread Co., 2018 WL 5020461, at *7 (D.D.C.
Oct. 16, 2018) (collecting cases). In that case, the court observed that “courts have
generally found that the existence of an arbitration agreement is irrelevant to conditional
certification of a collective action, because the enforceability of such agreements is a
merits-based determination better dealt with at the decertification stage.” Id.; see also
D’Antuono v. C&G of Groton, Inc., 2011 WL 5878045, at *2 (D. Conn. Nov. 23, 2011)
(certifying a collective action despite the existence of an arbitration agreement and
collecting cases). This Court agrees with this analysis and conclusion. The purpose of

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conditional certification is to notify putative collective action members of their right to
join the lawsuit. See Oldershaw v. DaVita Healthcare Partners, Inc., 255 F. Supp. 3d
1110, 1114 (D. Colo. 2017). Though Defendant may have an affirmative defense to
litigating opt-in plaintiffs’ FLSA claims, such a defense does not negate the right of
potential collective action members to join the litigation.
Cases cited by Defendant do not require a contrary result. In Sanchez v. Q’Max
Solutions, Inc., the court denied conditional certification when all potential members
were already covered by a certified class action, and thus an identical FLSA action
would be redundant. 2018 W L 1071133, at *1 (D. Colo. Feb. 27, 2018). Here, there is
no similar risk of redundancy because there is no parallel action. In Bracamontes v.
Bimbo Bakeries U.S.A., Inc., the court rejected a proposal to give notice to individuals
who did not meet the FLSA collective action definition. 2017 WL 4621276, at *1 (D.
Colo. Aug. 3, 2017). Here, there is no dispute about whether those with arbitration
provisions meet the proposed collective action definition; Defendant simply argues that
those with arbitration provisions should be excluded from the collective action definition.
Finally, in Hudgins v. Total Quality Logistics, LLC, the Court found the arbitration
agreements of potential opt-in plaintiffs were enforceable, and thus limited notice to
potential members who had not signed arbitration agreements. 2017 WL 514191, at *4
(N.D. Ill. Feb. 8, 2017); see also Daugherty, 838 F. Supp. 2d at 1133 (excluding those
with arbitration provisions from the collective action definition where the court had
already compelled arbitration of those with arbitration provisions). Here, the Court has
made no determination as to arbitrability.

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The Court thus grants the Motion as to conditional certification for all persons
who fit the proposed collective action definition, including those with arbitration
provisions.
F.

Substance and Procedure of Notice
Defendant also objects to both the substance and procedure of the proposed

notice. (ECF No. 29 at 14–15.) The Court will review the merits of these objections
and provide guidance to counsel on these issues.
1.

Contents of notice

The Court has reviewed the proposed notice. As currently drafted, the notice
does not provide a description of the theory of the case to allow individuals to assess
whether they have a potential claim, explain the implications of not joining the lawsuit,
describe potential discovery obligations, or instruct recipients not to contact the Court
directly. The Court therefore denies that portion of the Motion pertaining to the
proposed notice.
For the parties’ reference, this Court generally approves FLSA notices to
potential opt-in plaintiffs that are substantially similar to those notices in class actions.
See, e.g., Lira v. Commercial Constr., Inc., No.16-cv-1566, Order Granting Conditional
Collective Action Certification, ECF No. 25 (D. Colo. Mar. 30, 2017); Clark v. Strad
Energy Services USA Ltd., No. 17-cv-1242, Order Granting Plaintiff’s Motion for
Approval of Hoffman-LaRoche Notice, ECF No. 67 (D. Colo. July 9, 2018); Shahlai v.
Comcast Corp., No. 16-cv-2556, Order Approving Proposed FLSA Notice and Consent
to Join Form, ECF No. 75 (D. Colo. Oct. 17, 2018).

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The Court also provides the following comments on the parties’ disputes
regarding the contents of the notice:
Discovery obligations. As currently drafted, there is no indication regarding
potential discovery obligations. Plaintiff should provide notice regarding the impact of
joining the law suit and potential discovery obligations. See Grady v. Alpine Auto
Recovery LLC, No. 15-CV-00377-PAB-MEH, 2015 W L 3902774, at *3 (D. Colo. June
24, 2015) (adding language to Hoffman-LaRoche notice regarding impact of joining suit
and potential discovery obligations). The Court has previously approved the following
language: “While this lawsuit is proceeding, you may be required to respond under oath
to written questions, have your deposition taken, produce documents, and/or testify in
court at a trial or hearing in the United States Federal Courthouse in Denver, Colorado.
This may or may not be likely depending on your circumstances.” See Clark, 17-cv1242, ECF No. 67.
Defense counsel contact information. There is a split among district courts as to
whether inclusion of defense counsel’s contact information is appropriate. Snively v.
Peak Pressure Control, LLC, 174 F. Supp. 3d 953, 962 (W .D. Tex. 2016) (citing cases).
Courts refusing to include such information cite ethical concerns about contact between
represented opt-in plaintiffs and defendants. See Gambo v. Lucent Techs., Inc., 2005
WL 3542485, at *7 (N.D. Ill. Dec. 22, 2005) (“there is no basis in law or logic for this
request”); Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010)
(“Including contact information for defense counsel in the class notice risks violation of
ethical rules and inadvertent inquiries, thus engendering needless confusion.”); Fuentes

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v. Compadres, Inc., 2018 WL 2126840, at *5 (D. Colo. May 9, 2018) (finding no reason
to include defense counsel’s information). This Court agrees and will not require
Plaintiff to include such information in the notice.
Retaliation. Counsel should refer to previous language approved by the Court on
the issue of retaliation. The notice should not, however, include information about
contacting an attorney if an individual believes retaliation has occurred, as this could be
interpreted at unsolicited legal advice. See Furlow v. Bullzeye Oilfield Serv., LLC, 2016
WL 7616704, at *2 (W.D. Tex. May 4, 2016).
Other Items. The parties should include a sentence which indicates that those
individuals with arbitration agreements likely must pursue their claims in arbitration.
Implicit in the right to opt-in is the concomitant right not to join; therefore, no additional
statement about the right not to join is required.
2.

Form and frequency of notice

There is a split of authority of whether reminder notices are appropriate or
necessary. See Guzelgurgenli v. Prime Time Specials Inc., 883 F. Supp. 2d 340, 357
(E.D.N.Y. 2012) (citing cases). In Guzelgurgenli, the court recognized that “most
plaintiffs do not request permission to send reminder notices, and . . . there has been
no great harm resulting from this practice.” Id.; see Cannon v. Time Warner NY Cable
LLC, 2014 WL 401313 (D. Colo. Sept. 5, 2014) (J., W atanabe) (denying plaintiffs’
request to send email notices). Plaintiff has not established good cause to show why a
reminder notice is necessary here. The Court therefore denies Plaintiff’s request to
send a reminder notice. All notices must at least be sent by U.S. Mail; they may in

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addition be sent via electronic mail.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendant’s Motion to Strike (ECF No. 64) is DENIED;

2.

Plaintiff’s Motion for Conditional Certification and Court-Authorized Notice (ECF
No. 22) is GRANTED IN PART as to conditional certification, as set forth above;

3.

This action is CONDITIONALLY CERTIFIED as a collective action under 29
U.S.C. § 216(b) with the eligible collective action class members defined as:
“All persons who worked as Field Investigators, Background Investigators, or in
other positions with similar job duties, for Defendant KeyPoint Government
Solutions Inc. at any time from March 8, 2015 to present.”;

4.

Plaintiff’s Motion is DENIED IN PART WITHOUT PREJUDICE as to approval of
the form of notice submitted at ECF No. 22-2. The parties should attempt to
stipulate to a notice and file a joint motion to approve a notice and consent to join
form no later than November 16, 2018. If the parties are unable to agree, they
may file separate motions by that same date; and

5.

No later than November 16, 2018 Defendant shall provide to Plaintiff’s counsel a
list of all potential collective action members, which shall include each such
employee’s or former employee’s name, position, dates of employment, last
known mailing address, last known e-mail address, and last known telephone
number.

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Dated this 1st day of November, 2018.
BY THE COURT:

William J. Martínez
United States District Judge

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