Abdul-Rasheed v. Kablelink Communications, LLC et al

Filing 44

ORDER granting in part and denying in part 21 Motion to Certify Class. Signed by Judge Susan C Bucklew on 11/7/2013. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SHAKEEL ABDUL-RASHEED, on behalf
of himself and others similarly situated,
Plaintiff,
v.

Case No. 8:13-cv-879-T-24 MAP

KABLELINK COMMUNICATIONS, LLC
and KABLELINK COMMUNICATIONS
OF NORTH CAROLINA, LLC,
Defendants.
_________________________________/
ORDER
This cause comes before the Court on two motions: (1) Plaintiff’s Motion for Conditional
Certification and Facilitation of Court-Authorized Notice (Doc. No. 21), which Defendants
oppose (Doc. No. 32); and (2) Plaintiff’s Motion for Miscellaneous Relief Pursuant to
§ 215(a)(3) and for Corrective Notice (Doc. No. 34), which Defendants oppose (Doc. No. 35).
I. Background
On April 5, 2013, Plaintiff Shakeel Abdul-Rasheed filed suit against Defendants
KableLink Communications, LLC (“KC-FL”) and KableLink Communications of North
Carolina, LLC (“KC-NC”). In his complaint (Doc. No. 1), Plaintiff alleges the following:
Defendants KC-FL and KC-NC are joint employers that hired Plaintiff in December of 2011 to
work as a cable installer at Defendants’ Spring Hill location. (¶ 54). Plaintiff’s primary duties
included the installation and repair of telecommunications and cable equipment and services for
Defendants’ customers, including Bright House Networks. (¶ 56). Plaintiff contends that
Defendants mis-classified him and other cable installers as independent contractors, and as a

result, violated the Fair Labor Standards Act’s (“FLSA”) minimum wage and overtime
provisions. (¶ 6, 112, 130).
According to Defendants, KC-FL provides services to Bright House Networks in six
Florida locations and has engaged over 600 cable installers in the last three years. (Doc. No. 321, ¶ 3-4). Further, Defendants contend that KC-NC provides services to Time Warner in
Raleigh, North Carolina and has engaged over 150 cable installers in the last three years. (Doc.
No. 32-1, ¶ 5-7).
II. Motion for Conditional Certification and Court-Authorized Notice
Pursuant to 29 U.S.C. § 216(b), Plaintiff moves the Court to conditionally certify a
putative class of cable installers1 that: (1) performed work for Defendants in Florida and/or
North Carolina within the last three years, (2) were classified as independent contractors, and (3)
were not paid proper minimum wages and/or overtime wages. Plaintiff seeks conditional
certification so the cable installers can pursue the FLSA claims via a collection action.
Additionally, Plaintiff is requesting that the Court authorize the mailing of notice of this lawsuit
and a consent to join form to the proposed class members.
Defendant opposes the motion, arguing that the proposed class of cable installers is not
similarly situated to Plaintiff. However, if the Court concludes that the proposed class is
similarly situated, then Defendant asks the Court to limit the class to cable installers that
performed work for Defendants in Florida during the relevant time period. Accordingly, the
Court will address both arguments.

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The label, “cable installers,” includes all “Installers,” “Cable Installers,” “Cable
Installation Contractors,” and “Field Technicians.”
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A. Framework for Analyzing Motions for Conditional Certification and Notice
Pursuant to 29 U.S.C. § 216(b), an action to recover for violations of the FLSA may be
brought by one or more employees on their own behalf and on behalf of other similarly situated
employees. If an employee-plaintiff wants to maintain an opt-in collective action against his
employer for FLSA violations, the plaintiff must demonstrate that he is similarly situated to the
proposed members of the collective class and that there is a desire by them to join the lawsuit.
See Hipp v. Liberty National Life Insurance Company, See 252 F.3d 1208, 1217 (11th Cir.
2001); Dybach v. State of Florida Dept. of Corrections, 942 F.2d 1562, 1567-68 (11th Cir.
1991). An employee interested in joining, or opting-in to, the lawsuit must file a written consent
in order to become a party to the suit. See 29 U.S.C. § 216(b).
The Eleventh Circuit has suggested a two-tiered approach for district courts to use when
determining whether an opt-in class should be certified:
The first determination is made at the so-called “notice stage.” At the
notice stage, the district court makes a decision—usually based only
on the pleadings and any affidavits which have been
submitted—whether notice of the action should be given to potential
class members.
Because the court has minimal evidence, this determination is made
using a fairly lenient standard, and typically results in “conditional
certification” of a representative class. If the district court
“conditionally certifies” the class, putative class members are given
notice and the opportunity to “opt-in.” The action proceeds as a
representative action throughout discovery.
The second determination is typically precipitated by a motion for
“decertification” by the defendant[,] usually filed after discovery is
largely complete and the matter is ready for trial. At this stage, the
court has much more information on which to base its decision, and
makes a factual determination on the similarly situated question. If
the claimants are similarly situated, the district court allows the
representative action to proceed to trial. If the claimants are not
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similarly situated, the district court decertifies the class, and the optin plaintiffs are dismissed without prejudice.
The class
representatives—i.e. the original plaintiffs—proceed to trial on their
individual claims.
Hipp, 252 F.3d at 1218 (quoting Mooney v. Aramco Services Co., 54 F.3d 1207, 1213-14 (5th
Cir. 1995)).2
B. Similarly Situated Requirement
In evaluating whether conditional certification is appropriate, this Court considers
whether Plaintiff has shown that the purported class members are similarly situated to him with
respect to their job requirements and with regard to their pay provisions. See Dybach, 942 F.2d
at 1567-68. In determining whether Plaintiff and the purported class members are similarly
situated with respect to their job requirements, Plaintiff only needs to show that their positions
are similar; Plaintiff is not required to show that their positions are identical. See Grayson v. K
Mart Corp.. 79 F.3d 1086, 1096 (11th Cir. 1996)(citations omitted). Furthermore, the similarly
situated requirement “is more elastic and less stringent than the requirements found in Rule 20
(joinder) and Rule 42 (severance).” Id. at 1095.
In support of his argument that all cable installers in Florida and North Carolina are
similarly situated to him, Plaintiff has filed his own declaration, as well as declarations from five
other cable installers that outline the work they performed for Defendants in Florida. (Doc. No.
22-1, 22-2, 21-6, 21-8, 23-1, 29-1). A review of these declarations shows that these cable
installers performed work for Defendants in Florida that was similar to the work performed by
Plaintiff. For example, the cable installers allege that: (1) they were scheduled to work five to

2

Mooney was overruled in part on other grounds by Desert Palace, Inc. v. Costa, 539 U.S.
90 (2003).
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six days per week; (2) they were required to report to work at a specific time each morning; (3)
they could not make their own schedules, and their schedules were completely dependent upon
the job assignments given to them by Defendants; (4) they were paid “piece rates” and subject to
non-negotiable “charge backs;” (5) they could not refuse a job without fear of negative
consequences; (6) either Defendants provided, or they had to buy directly from Defendants, all
of their tools; and (7) they regularly worked more than forty hours per week.
The Court notes that Defendants argue that the level of control over cable installers varies
between the six different Florida locations, but Defendants do not provide any factual detail to
support this allegation. Based on the Court’s review of the declarations, the Court concludes, at
this early stage of the proceedings, that Plaintiff has made a sufficient showing that the Florida
cable installers are similarly situated to him.
However, the only evidence regarding cable installers in North Carolina is the declaration
of Brenden VonderVor, who “mainly worked at Defendants’ Crystal River, Florida location,”
but “also performed work for Defendants in North Carolina within the last three years.” (Doc.
No. 22-2, ¶ 4-5). It is unclear how long VonderVor worked for Defendants in North Carolina,
and he is the only cable installer that has filed a declaration regarding the work performed by
cable installers in North Carolina. This Court is unwilling to expand the class of cable installers
to include those in North Carolina without more evidence that such installers are similarly
situated to Plaintiff. Therefore, the Court will grant Plaintiff’s motion to conditionally certify a
class of cable installers, but the Court will limit the class to cable installers that performed work
for Defendants in Florida within the last three years.

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C. Form of Proposed Notice to Class
Defendants raise several objections to the proposed Notice. Accordingly, the Court will
address each objection.
1. Class Period
In their proposed Court-authorized Notice, Plaintiff has used a three-year limitations
period. Defendants contend that the relevant time period for class claims is two years, because a
three-year period is only applicable if the FLSA violation is willful. 29 U.S.C. § 255(a). The
Court rejects this argument.
Plaintiff has alleged in his complaint that Defendants willfully violated the FLSA. (Doc.
No. 1, ¶ 117, 135). At this early stage of the proceedings, the Court concludes that Plaintiff’s
allegation is sufficient to support his request for a three-year period in the Court-authorized
Notice. See Ohsann v. L.V. Stabler Hospital, 2008 WL 2468559, at *3 (M.D. Ala. June 17,
2008); White v. Osmose, Inc., 204 F. Supp.2d 1309, 1318 n.9 (M.D. Ala. 2002). Thus, a cable
installer may file a notice of consent to join this lawsuit in order to pursue a claim for an FLSA
violation that occurred within three years prior to the filing of their consent to join. 29 U.S.C.
§ 256(b). The Court will allow Plaintiff to send a copy of the Notice to cable installers that
worked for Defendants in Florida within the last three years prior to the date the Notice is
mailed. See Gutescu v. Carey International, Inc., 2003 WL 25586749, at *17-18 (S.D. Fla. July
21, 2003)(concluding that the notice should reflect a three-year period from the date that the
notice was sent, not from the date that the complaint was filed).
The Court wants to make clear, however, that it is not ruling that the alleged FLSA
violations were willful and/or that a three-year limitations period is warranted. Instead, the

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Court is simply authorizing notice to class members that performed work for Defendants in
Florida within the last three years. Defendants may raise its argument regarding the appropriate
limitations period in a motion for decertification or a motion for summary judgment. See White,
204 F. Supp.2d at 1318 n.9.
2. Consent Forms
Next, Defendants argue that a self-addressed, stamped envelope should not be provided,
nor should consent to join forms be accepted via fax or email. However, Defendants have failed
to cite any case law to support their opposition. Upon consideration, the Court overrules this
objection. See Vargas v. Richardson Trident Co., 2010 WL 730155, at *11 (S.D. Tx. Feb. 22,
2012); Valentine v. Harris County, 2003 WL 23741412, at *1 (S.D. Tx. Aug. 25, 2003); Clincy
v. Galardi South Enterprises, Inc., 2010 WL 966639, at *5 (N.D. Ga. Mar. 12, 2010); Fortna v.
QC Holdings, Inc., 2006 WL 2385303, at *11 (N.D. Ok. Aug. 17, 2006). The cost of providing
the self-addressed, stamped envelopes shall be borne by Plaintiff.
3. Costs
Next, Defendants argue that the Notice should state that opt-in plaintiffs could be liable
for paying costs in this case, pursuant to Federal Rule of Civil Procedure 54, as well as
attorneys’ fees, pursuant to an indemnification provision within their independent contractor
agreements. The Court has a copy of an Independent Contractor Agreement (“ICA”) that
Defendants revised in August of 2013 that some of the potential opt-in plaintiffs may have
signed. (Doc. No. 35-1). The 2013 ICA contains an indemnification provision that provides a
basis for an award of attorneys’ fees and costs against any plaintiffs that had signed this ICA if
such plaintiffs are found to be independent contractors. See Dobbins v. Scriptfleet, Inc., 2012

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WL 2282560 (M.D. Fla. June 18, 2012). Accordingly, the Court agrees that the Notice should
include language stating: “If an opt-in plaintiff has signed an independent contractor agreement
that contains an indemnity provision, and if such plaintiff is found to be an independent
contractor, such opt-in plaintiff could be liable for Defendants’ attorneys’ fees and costs in this
case.” See Whitaker v. Kablelink Communications, LLC, 2013 WL 5919351 (M.D. Fla. Nov. 4,
2013).
4. Opt-in Period
Next, Defendants argue that a 60-day opt-in period is too long, and instead, the Notice
should contain a 45-day opt-in period. The Court, however, concludes that a 60-day opt-in
period is permissible and appropriate. See Vargas, 2010 WL 730155, at *11; Wajcman v.
Hartman & Tyner, Inc., 2008 WL 203579, at *2 (S.D. Fla. Jan. 23, 2008). Therefore, the Courtauthorized Notice may use a 60-day opt-in period, and when describing the opt-in period in the
Notice, Plaintiff is directed to insert an actual date (60 days after the mailing date) in the Notice.
5. Exclusion of Certain Cable Installers
Next, Defendants argue that the Notice should exclude any potential opt-in plaintiff that
has signed an independent contractor agreement that requires arbitration of FLSA claims and/or
prohibits pursuing collective actions. This argument is related to Plaintiff’s motion for
miscellaneous relief (discussed below), on which the Court will be holding an evidentiary
hearing. The Court defers ruling on this argument at this time and will address this argument
during the hearing.
III. Motion for Miscellaneous Relief
Plaintiff also filed a motion for miscellaneous relief, in which he alleges that Defendants

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are improperly threatening and intimidating potential opt-in plaintiffs to waive their right to join
in this collective action. Specifically, Plaintiff contends that on August 16, 2013 (a week after
Plaintiff filed his motion for conditional certification), Defendants held a meeting with their
current cable installers and explained that they were required to sign a new ICA or they could no
longer perform work for Defendants. The ICA contained a mandatory arbitration provision that
specifically applied to FLSA claims and a class/collective action waiver.
Plaintiff contends that Defendants’ conduct is calculated for the sole purpose of
intimidating potential class members and preventing them from pursuing their FLSA rights
collectively in this action, which amounts to unlawful retaliation under § 15(a)(3) of the FLSA.3
Section 15(a)(3) provides:
[It is unlawful] to discharge or in any other manner discriminate
against any employee because such employee has filed any complaint
or instituted or caused to be instituted any proceeding under or
related to this chapter, or has testified or is about to testify in any
such proceeding . . . .
29 U.S.C. § 215(a)(3).
Defendants contest Plaintiff’s characterization of the events in this case, arguing that the
revised ICA that cable installers were asked to sign had been in the works for eighteen months
and that no cable installer has been penalized for failing to sign the new ICA.4 Furthermore,
Defendants emphasize their right to enter into arbitration agreements. While the Court
acknowledges that parties are free to enter into arbitration agreements, the timing and

3

Plaintiff also contends that Defendants’ conduct violates § 8 of the National Labor
Relations Act.
4

However, Defendants state that they “reserve the right to not give assignments to
independent contractors who do not sign the ICA.” (Doc. No. 35, p. 14 n.5).
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circumstances in this case surrounding the arbitration agreement cause the Court great concern.
See Billingsley v. Citi Trends, Inc., 2013 WL 2350163 (N.D. Ala. May 29, 2013)(concluding
that mandatory arbitration agreements that store managers were required to execute during the
pendency of FLSA collective action were unconscionable and would not be enforced).
The issue of the circumstances that must be present before a court can limit
communications of a party with potential class members was addressed by the Supreme Court in
Gulf Oil Company v. Bernard, 452 U.S. 89 (1981). The Gulf Oil Court stated:
[A]n order limiting communications between parties and potential
class members should be based on a clear record and specific findings
that reflect a weighing of the need for a limitation and the potential
interference with the rights of the parties. Only such a determination
can ensure that the court is furthering, rather than hindering, the
policies embodied in the Federal Rules of Civil Procedure, especially
Rule 23. In addition, such a weighing–identifying the potential
abuses being addressed–should result in a carefully drawn order that
limits speech as little as possible, consistent with the rights of the
parties under the circumstances.
Id. at 101-02. After Gulf Oil, the following framework is applied:
[C]ourts have routinely recognized that the moving party must
present an evidentiary showing of actual or threatened abuse by the
party sought to be restrained. Two kinds of proof are required. First,
the movant must show that a particular form of communication has
occurred or is threatened to occur. Second, the movant must show
that the particular form of communication at issue is abusive in that
it threatens the proper functioning of the litigation.
Cox Nuclear Medicine v. Gold Cup Coffee Services, Inc., 214 F.R.D. 696, 697-98 (S.D. Ala.
2003). Under this framework, the Court will hold an evidentiary hearing to further address this
motion.

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IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)

Plaintiff’s Motion for Conditional Certification and Facilitation of CourtAuthorized Notice (Doc. No. 21) is GRANTED to the extent that the Court
conditionally certifies a putative class of cable installers that: (1) performed work
for Defendants in Florida within the last three years, (2) were classified as
independent contractors, and (3) were not paid proper minimum wages and/or
overtime wages.

(2)

By November 20, 2014, Defendants are directed to produce to Plaintiff’s counsel,
in an electronic readable format, a list containing the full names, last known
addresses, telephone numbers, and e-mail addresses of putative class members
who worked for Defendants between November 2010 and the present.

(3)

By November 15, 2013, Plaintiff’s counsel is directed to email a copy of the
proposed Notices in Word or Word Perfect format to
[e-mail] so that the Court may edit them.

(4)

The Court will hold an evidentiary hearing on Plaintiff’s motion for
miscellaneous relief on Thursday, November 21, 2013 at 9:00 a.m. before the
Honorable Susan C. Bucklew in Courtroom 17 of the Sam M. Gibbons U.S.
Courthouse, located at 801 North Florida Avenue, Tampa, Florida 33602. At the
hearing, the Court will also address and finalize the form of the Notices to be sent
to potential opt-in plaintiffs.

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(5)

After the Court finalizes the Notices:
(a)

Plaintiff may send initial notice to all individuals whose names
appear on the list produced by the Defendants’ counsel by firstclass mail.

(b)

Defendants are directed to post a copy of the Notice in all of its
Cable Installations business locations and/or dispatch offices in
Florida.

(c)

Plaintiff’s counsel may send a follow-up notice to all individuals
whose names appear on the list produced by Defendants’ counsel
but who, by the fourteenth day prior to the close of the Courtapproved notice period, have yet to opt in to the instant action.

DONE AND ORDERED at Tampa, Florida, this 7th day of November, 2013.

Copies to:
Counsel of Record

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