Archer et al v. Defenders, Inc.

Filing 53

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 11/14/2018. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TEDDY ARCHER, TREY BERNADOU,
SEDETRIC CHAMBLISS, ERVIN DESIR,
BRODRICK FRANCIS, JAMES
HUTCHINSON, DANIEL MANOFSKY,
DEVON SPRINGER, ERIC STEWART,
JESSE SWANSON, ANDREW WALLS,
CALVIN WESLEY, CHRIS WOODRUFF, on
behalf of themselves and all others similarly
situated,

Civil Action No. 18-470-RGA

Plaintiffs;
V.

DEFENDERS, INC.,
Defendant.

MEMORANDUM OPINION
Brian D. Long, RIGRODSKY & LONG, P.A., Wilmington, DE; Ted E. Trief, Shelly L.
Fr1edland, & Stan Gutgarts, TRIEF & OAK, New York, NY; Peter S. Pearlman, COHN
LIFLAND PEARLMAN HERRMANN & KNOPF LLP, Saddle Brook, NJ; Macy D. Hanson,
THE LAW OFFICE 01:'. MACY D. HANSON, PLLC, Madison, MS, attorneys for Plaintiffs .
. J. Cory Falgowski, BURR & FORMAN LLP, Wilmington, DE; K. Bryance Metheny, Ronald W.
Flowers, Jr., & H. Carlton Hilson, BURR & FORMAN LLP, Birmingham, AL, attorneys for
Defendant.

November

Ji,

2018

AN~.~iT
Currently pending before the Court is Plaintiffs' Motion to Conditionally Certify a FLSA
Collectiv~ Action and Send Notice to the Class. (D.I. 31 ). The Parties have briefed the issues.
(D.I. 32; D.I. 44; D.I. 50). For the following reasons, the Court GRANTS Plaintiffs' Motion.

I.

BACKGROUND
Plaintiffs are former and current Security Advisors ("SAs") employed by Defendant

Defenders, Inc. Plaintiffs filed this action on March 28, 2018. (D.I. 1). Plaintiffs seek to
recover unpaid overtime under the Fair Labor Standards Act on behalf of:
All Security Advisors employed by Defendant who, at any time during the period
beginning three years before the filing of this Complaint up to and including the
date of final judgment in this matter, installed homeowner security/alarm systems
and/or performed service on those systems for Defendant ("Collective Class").
(D.I. 1 ~ 23). Plaintiffs filed an Amended Complaint on May 24, 2018, which included an
additional five Plaintiffs. (D.I. 19). Currently, three additional SAs have filed written consents,
wishing to join this action if it is certified as a collective action ("the Opt-Ins"). (D.I. 32 at 12).
Together, Plaintiffs and Opt-Ins have worked for Defendant in nine states: Alabama, Delaware,
Georgia, Florida, Indiana, Kentucky, Mississippi, Tennessee, and Texas. (Id).
Plaintiffs allege that Defendant failed to appropriately calculate and compensate SAs
nationwide for time spent in meetings and travel time, resulting in underpayment of overtime due
to SAs. (D.I. 32 at 13). Plaintiffs move to conditionally certify and send notice to the following
class: "all current and former Security Advisors employed by [Defendant] after March 28, 2015,
who worked overtime hours but were not paid overtime wages during all or part of their
employment." (D.I. 31-2).

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II.

LEGALSTANDARD
The Fair Labor Standards Act ("FLSA") allows one or more employees to pursue an

action in a representative capacity for "other employees similarly situated." Hoffinan-La Roche

Inc. v. Sperling, 493 U.S. 165, 170 (1989); 29 U.S.C. § 216(b). FLSA collective actions under
§ 216(b) require: (1) all plaintiffs to be "similarly situated," and (2) plaintiffs must "opt-in" to
the collective action by filing an affirmative consent to join. Statutes of limitations are not tolled
for putative members of a FLSA class until they affirmatively "opt-in" to the action. Symczyk v.

Genesis Healthcare Corp., 656 F.3d 189,200 (3d Cir. 2011), overruled on other grounds, 569
U.S. 66 (2013). FLSA class certification has two steps: conditional certification and final
certification. Halle v. West Penn Allegheny Health Sys., 842 F.3d 215, 223-24 (3d Cir. 2016);

Zavala v. Wal-Mart Stores, Inc., 691 F.3d 527, 535 (3d Cir. 2012). If conditional certification is
granted at the first stage, the court will order notice to be issued to the proposed class. At the
second stage, after discovery has been taken, the court will make "a conclusive determination as
to whether each plaintiff who has opted in to the collective action is in fact similarly situated to
the named plaintiff." Camesi v. Univ. ofPittsburgh Med Ctr., 729 F.3d 239,243 (3d Cir. 2013).
At the conditional certification stage, a court must determine whether the named
plaintiffs have made a "modest factual showing ... demonstrat[ing] a factual nexus between the
manner in which the employer's alleged policy affected him or her and the manner in which it
affected the proposed collective action members." Halle, 842 F.3d at 224. The proposed class is
"similarly situated" if there are "substantial allegations that the putative class members were
together the victims of a single decision, policy or plan." Zavala, 691 F.3d at 535. The Third
Circuit has held that conditional "certification ... is only the district court's.exercise of its

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discretionary power to facilitate the sending of notice to potential class members." Symczyk, 656
F.3d at 194 (emphasis added).
A significant question under the conditional certification analysis is "the extent to which
the claims of the putative class can be proven through common evidence, versus individualized
testimony." Banks v. Radioshack Corp., 2014 WL 1724856, at *2 (E.D. Pa. Apr. 25, 2014).
However, "a defendant's claim or defense that individualized circumstances of employees render
the matter unsuitable for collective treatment may be more appropriately reviewed during step
two of the certification process." Burkhart-Deal v. Citifinancial, Inc., 2010 WL 457127, at *3
(W.D. Pa. Feb. 4, 2010); see also Charles v. Progressions Behavioral Health Servs., Inc., 2018
WL 4924169, at *5 (E.D. Pa. Oct. 9, 2018) (courts generally grant conditional certification in
spite of factual differences); Ivanovs v. Bayada Home Health Care, Inc., 2018 WL 4583510, at
*4 (D.N.J. Sept. 25, 2018) (holding exemption analysis should occur at decertification stage
rather than conditional certification).

III.

DISCUSSION
Plaintiffs request the Court conditionally certify a FLSA collective action and order

notice to be sent to members of a class of "all current and former Security Advisors employed by
[Defendant] after March 28, 2015 who worked overtime hours but were not paid overtime wages
during all or part of their employment." (D.I. 31-2; D.I. 32 at 5). Defendant opposes conditional
certification on the following grounds: (1) Plaintiffs have not alleged a common unlawful
"decision, policy or plan" and (2) that individualized inquiries will be necessary to determine if
(a) SAs are entitled to additional overtime and how much and (b) SAs are exempt from FLSA's
overtime provisions. (D.I. 44 at 6). Plaintiffs respond that Defendant (1) asks the Court to judge

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the merits of Plaintiffs' claims prematurely and (2) does not demonstrate that individualized
issues bar conditional certification. (D.I. 50 at 6).

A. Conditional Certification is Proper
1. Plaintiffs Have Met Their Burden
Defendant asserts Plaintiffs have failed to make a "modest factual showing" supporting
conditional certification. Specifically, Defendant argues Plaintiffs have not demonstrated a
common unlawful "decision, policy, or plan." (D.I. 44 at 6).
The Court disagrees. Plaintiffs have made the required "modest factual showing." Halle,
842 F.3d at 224. Plaintiffs' Complaint alleges that the Defendant failed to pay all overtime due
to SAs in violation of FLSA by failing to properly account for and pay for the time SAs spent
attending meetings and traveling. 1 Specifically, Plaintiffs provide certifications from fourteen
SAs in nine different states stating that they did not receive compensation for time spent at
meetings or on travel, resulting in underpayment of the overtime they were owed. 2 (D.I. 32-2).
Plaintiffs allege that the underpayment was the result of a common policy applied nationwide of
failing to appropriately account for and compensate SAs for meeting and travel time. (D.I. 32 at
16; D.I. 32-2). Plaintiffs also present evidence that the alleged unlawful compensation structure
was a single corporate policy. (D.I. 33, Ex. J). Therefore, Plaintiffs have met their burden of
showing that the class they propose to represent "were together the victims of a single decision,
policy or plan." Zavala, 691 F.3d at 535.

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Defendant argues that its pay structure was designed to primarily compensate SAs through commission, which
pursuant to 29 C.F.R. § 778.109 lawfully covered the time SAs spent in meetings and traveling. (D.I. 44 at 25).
This is an argument regarding the merits of Plaintiffs' FLSA claims and not whether the proposed class is similarly
situated for the purposes of conditional certification.
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Defendant alleges that because these declarations are "cookie-cutter," the Court should disregard them as factual
support. The Court disagrees. This is simply further evidence ofa common policy or treatment of the proposed
class. (D.1. 44 at 12-13).

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Moreover, Plaintiffs have also demonstrated ¢at they and the proposed class are
.similarly situated. Plaintiffs and the proposed class have identical job titles, identical job
descriptions, materially similar, if not identical, job duties, and were compensated according to
the same compensation structure. (D.I. 33, Ex B, D, E, J; D.I. 44 at 8 (describing eleven-step
process for customer appointments)). Defendant submitted declarations from currently
employed SAs to rebut Plaintiffs' showing that the job duties were materially similar. Defendant
asks the Court to assess the merits of that alleged unlawful policy. However, resolution of
factual disputes and merit determinations are not appropriate at the conditional certification
stage. See, e.g., Charles, 2018 WL 4924169, at *5; Bowser v. Empyrean Servs., LLC, 324
F.R.D. 346, 352 (W.D. Pa. 2018). Therefore, the declarations submitted by Defendant do not
overcome Plaintiffs' satisfaction of their burden at this stage.

2. The Possibility of Individualized Inquiries Does Not Bar Conditional
Certification
Defendant also submits that conditional certification should not be granted because
individualized inquiries will be required to (1) resolve Plaintiffs' claims for unpaid travel time
overtime, and (2) determine whether Plaintiffs and other SAs are exempt under FLSA's outside
sales exemption or Section 7(i) exemption. (D.I. 44 at 29-32). However, courts in this Circuit
regularly resolve issues of individualized inquiries at stage two of the certification process. See,

e.g., Charles, 2018 WL 4924169, at *5 (finding courts generally grant conditional certification in
spite of factual differences); Jvanovs, 2018 WL 4583510, at *4 (holding exemption analysis
should occur at decertification stage rather than conditional certification stage); Dunkel v.

Warrior Energy Servs., Inc., 304 F.R.D. 193,201 (W.D. Pa. 2014) ("it would be inappropriate to
deny conditional 'certification' now" on the basis that overtime determinations will require

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individualized assessments); Burkhart-Deal, 2010 WL 457127, at *3 ("[D]efendant's claim or
defense that individualized circumstances of employees render the matter unsuitable for
collective treatment may be more appropriately reviewed during step two of the certification
process."). I agree that the issue of individualized determinations is more appropriately resolved
at the decertification stage with the benefit of a full factual record.

B. Plaintiffs' Proposed Order and Notice
Defendant objects to the following items in Plaintiffs' Proposed Order and Notice: (1) the
conflicting time periods for consent forms to be submitted; (2) the methods of distribution and
requests for social security numbers, birth dates, and email addresses; and (3) the failure of the
notice to include a statement regarding applicable defenses, list Defendant's counsel, or inform
class members that the Court may award costs against them. (D.I. 44 at 34-35). However,
Defendant only briefly addresses these objections and requests further opportunity and a hearing
to address the contents of the notice. (D.I. 34-35). Plaintiffs have indicated a willingness to
meet and confer with Defendant on their objections .. (D.I. 50 at 15 n.24)
The Court agrees with Defendant on the following matters. First, the conflicting time
period for class members with independent counsel and class members accepting Plaintiffs'
counsel should be reconciled. The Court concludes that all class members should have sixty
days from the date of notice within which to "opt-in" regardless of their intended counsel.
Second, the Court agrees that Plaintiffs' request for social security numbers and birthdates is
inappropriate. Therefore, the Court will only require Defendant to provide Plaintiffs' counsel
with the last known address, telephone number, and email address for class members.
Defendant also objects to the contents of Plaintiffs' proposed Notice, identifying items it
believes should be added. (D.I. 44 at 34-45). Defendant did not submit a competing notice, nor
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provide the Court with drafted language that it submits should be added to the notice. Given
Plaintiffs' willingness to meet and confer on Defendant's objections, the Court will grant the
parties ten days to meet and confer regarding the language to be added.
Finally, the Court finds Plaintiffs' proposed methods of distribution appropriate. Courts
in this Circuit regularly permit follow-up notices and posting of the notice at work sites of the
defendant. See, e.g., Gervasio v. Wawa Inc., 2018 WL 385189, at *7 (D.N.J. Jan. 10, 2018)
(ordering reminder postcard and email to be sent half-way through notice period and copy of
Notice to be posted by Defendant at all locations where class members are employed).
Therefore, the Court will order that (1) Plaintiffs shall send initial notice to class members
through mail or email, (2) Plaintiffs may send follow-up notices by mail or email to those class
members who have not responded by halfway through the notice period, and (3) Defendant shall
post notice at all of Defendant's worksites where SAs are employed in the same areas in which it
is required to post FLSA notices.

IV.

CONCLUSION
For the forgoing reasons, Plaintiffs' Motion for Conditional Certification is GRANTED.

An accompanying order will be entered.

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