FRANCO-HERNANDEZ et al v. SOUTHERN VALLEY FRUIT AND VEGETABLE INC et al
ORDER granting 18 Motion to Certify Class. Ordered by U.S. District Judge HUGH LAWSON on 2/5/2015. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
et al., and all others similarly
Civil Action No. 7:14-CV-62 (HL)
SOUTHERN VALLEY FRUIT
VEGETABLE, INC., et al.,
Before the Court is Plaintiffs’ Motion for Conditional Certification of a FLSA
Collective Action. (Doc. 18). For the following reasons, Plaintiffs’ motion is
The Plaintiffs in this case are temporary agricultural guest workers
admitted into the United States from Mexico under the H-2A visa program for the
purpose of performing agricultural work at Defendants’ farms in and around
Colquitt County, Georgia in 2011, 2012, 2013. In order to participate as an
employer under the H-2A program, Defendants were required to file a temporary
Subsequent to the filing of Plaintiffs’ motion for conditional class certification,
Plaintiffs filed their Second Amended Complaint with the Consent of Defendants.
(Doc. 60). The facts as set forth here are those as alleged in the most recent
labor certification with the United States Department of Labor (“DOL”) and to
include a job offer, or “job order.” 20 C.F.R. §§ 655.133 and 655.130. The job
order, which constitutes the employment contract, contains the terms of
employment. 20 C.F.R. §§ 655.103(b) and 655.122. In the requisite job orders,
Defendants promised any worker hired by Defendants at least the Adverse Effect
Wage Rate (“AEWR”), which was $9.12 in 2011, $9.39 in 2012, and $9.78 in
2012. Defendants likewise promised to pay wages without deduction of items for
the employer’s benefit or without reducing an employee’s wages by shifting costs
to the employer. The contract also agreed that workers would be reimbursed for
travel costs as required by 20 C.F.R. § 655.122(h).
In Count I of their Second Amended Complaint, Plaintiffs allege that in
2011, 2012, and 2013, Defendants breached the terms of the job orders
submitted to the DOL and provided to Plaintiffs and others similarly situated and
willfully violated the Fair Labor Standards Act (“FLSA”) by failing to reimburse
Plaintiffs various immigration and travel-related expenses, including visa and
processing fees in excess of $150 per season, lodging and subsistence
expenses, bus fare, and border patrol fees incurred during the journey from
Mexico to Defendants’ place of business in Georgia. Plaintiffs allege that when
these expenses were subtracted from their first week’s pay, as required by law,
Plaintiffs’ and other similarly-situated employees’ earnings were near or below
zero, falling below the required average minimum wage for the relevant pay
period. Plaintiffs further allege violations of the FLSA based on Defendants’
practice of paying Plaintiffs’ and other employees based on the quantity of
produce harvested or packed.
Plaintiffs request conditional class certification for all H-2A workers
employed by Defendants in 2011, 2012, and 2013. Plaintiffs additionally move
the Court to (1) approve for distribution the proposed collective action notice
attached as Exhibit A to Plaintiffs’ Memorandum of Law; (2) order Defendants to
produce the names and last known permanent addresses of all workers
employed under the terms of the H-2A job orders in 2011, 2012, and 2013; (3)
require Defendants to post the collective action notice in the worker housing
barracks and dining hall; and (5) grant Plaintiffs’ counsel five (5) months from the
date by which Defendants produce the names and address for distribution of the
court-approved notice to potential opt-in Plaintiffs.
FLSA Conditional Class Certification Standard
The collective action provisions of the FLSA permit employees to bring
claims on behalf of themselves and others who are similarly situated. 29 U.S.C.
§ 216(b). Unlike a class action suit filed under Federal Rule of Civil Procedure
23, which requires those who do not desire to be a member of the class to optout, employees who wish to participate in a collective action pursuant to Section
216(b) must affirmatively opt-in and consent in writing to becoming a party. Id.;
Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001); see also
Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1249 (11th Cir.
The decision to grant a class conditional certification rests within the sound
discretion of the district court. Anderson v. Cagle’s, Inc., 488 F.3d 945, 951 (11th
Cir. 2007). The Eleventh Circuit in Hipp described in detail its approved a twotiered approach for class certification:
“The first determination is to be 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 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 similarly situated, the
district court decertifies the class, and the opt-in plaintiffs are
dismissed without prejudice. The class representatives – i.e.
the original plaintiffs – proceed to trial on their individual
Hipp, 252 F.3d at 1218 (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207,
1213-14 (5th Cir. 1995)).
This case remains in the notice phase. While discovery in the case
commenced in mid-October, 2014 (Doc. 52), at the time Plaintiffs filed their
motion for class certification, Defendants had not yet even been served with a
copy of Plaintiff’s original or amended complaint. Plaintiffs’ also filed their reply
brief to Defendants’ response in opposition to the motion on October 3, 2014, the
same date the parties were required to make their Rule 26(a) initial disclosures.
Defendants argue that based on their submission of limited self-generated payroll
information relating to some of the purported class members that a heightened
and less lenient standard applies. See Ide v. Neighborhood Rest. Partners, LLC,
2014 U.S. Dist. LEXIS 102486, at *10-11 (N.D. Ga. July 8, 2014) (quoting Davis
v. Charoen Pokphand (USA), Inc., 303 F. Supp. 2d 1272, 1276 (M.D. Ala. 2004)
(“The rationale for the ‘fairly lenient standard’ [at the notice stage] . . . disappears,
however, once plaintiffs have had an opportunity to conduct discovery with
respect to defendant’s policies and procedures.”); see also Ledbetter v. Pruitt
Corp., 2007 U.S. Dist. LEXIS 10243, at *2 (M.D. Ga. Feb. 12, 2007) (finding that
a motion for conditional class certification filed two weeks after the close of
discovery was “in a different procedural posture than that envisioned by Hipp,
and therefore a more searching standard of review is appropriate.”). The Court
disagrees and finds the posture of this case distinguishable from the cases cited
by Defendants, where the parties either had completed discovery, or at least at
the opportunity to conduct thorough discovery, prior to the filing of motion for
class certification. The limited payroll documentation included by Defendants in
response to Plaintiffs’ motion does not in this Court’s opinion justify an
amplification of the lenient Hipp standard.
Accordingly, the Court’s decision whether to grant conditional certification
shall be based on the pleadings and affidavits submitted by the parties, and a
more flexible standard applies. Id. At this stage, the district court is called upon to
determine: 1) whether there are other employees who wish to opt-in to the action;
and 2) whether those employees are “similarly situated.” Dybach v. Fla. Dep’t of
Corrs., 942 F.2d 1562, 1567-68 (11th Cir. 1991).
In order to satisfy the first requirement, Plaintiffs must affirmatively
demonstrate that other employees wish to opt-in. Id. Typically, this requirement is
met through affidavits of opt-in employees, consent to sue forms, and expert
evidence about the existence of other similarly situated employees. Davis, 303 F.
Supp. 2d at 1277. The Court finds it clear that other employees wish to opt-in to
this litigation. This case was initiated by five original Plaintiffs. As of this date,
eleven additional employees have filed consent to sue forms. (Docs. 5, 19, 30,
55, 56). Plaintiffs additionally have presented the affidavits of Idalia RodriguezContreras (Doc. 18-3) and opt-in Plaintiff Alejandro Nava Hernandez (Doc. 18-4),
both of who describe the same FLSA violations alleged by the other Plaintiffs in
Plaintiffs next must establish that they are similarly situated to the
proposed class members. In order to create an opt-in class under § 216(b), the
named plaintiffs must show that they are suing on behalf of themselves and other
“similarly situated” employees. Hipp, 252 F.3d at 1217. Plaintiffs must illustrate
that their positions are similar, not identical, to positions held by putative class
members. Id. (quoting Grayson v. K-Mart Corp., 79 F.3d 1086, 1096 (11th Cir.
1996)). The FLSA does not define how similar the employees must be, nor has
the Eleventh Circuit adopted a precise definition of “similarly situated.” Morgan v.
Family Dollar Stores, 551 F.3d 1233, 1259 (11th Cir. 2008). Rather, the Eleventh
Circuit has described the standard for determining similarity as “not particularly
stringent,” “fairly lenient,” “flexible,” “not heavy,” and “less stringent than that for
joinder under Rule 20(a) or for separate trials under 42(b). Id. at 1260-61
(internal citations omitted). Still, there must be more than “only counsel’s
unsupported assertions that FLSA violations [were] widespread and that
additional plaintiff would come” forward. Haynes v. Singer Co., 696 F.2d 884, 887
(11th Cir. 1983).
The Court is satisfied that Plaintiffs have made the necessary showing that
the proposed class members are “similarly situated.” Plaintiffs and the purported
class members were all farmworkers employed under the terms of the same
written job orders. They had the same job title, performed similar work planting
harvesting, or packing produce, were paid by Defendants under the same pay
scheme, and allegedly suffered the same FLSA violations. Defendants attempt to
distinguish the claims of Plaintiffs based on allegations that some Plaintiffs
received partial reimbursement and others none at all. Taking into account the
lenient standard applicable in determining whether to grant class certification, the
Court does not agree that this distinction destroys the similarity requirement. The
Court further finds based on the affidavits supplied by one of the named Plaintiffs
and one of the opt-in Plaintiffs sufficiently establishes a reasonable basis for
Plaintiffs’ claims that the alleged FLSA violations were classwide.
Defendants additionally argue that conditional class certification is
inappropriate because all of the named and opt-in Plaintiffs currently participating
in this litigation were fully reimbursed for all of their inbound travel and visa
expenses. (Doc. 43, p. 5). Accordingly, Plaintiffs’ claims are moot, and they are
not entitled to any form of relief. In support of this assertion, Defendants attached
self-generated payroll documents. Plaintiffs responded to Defendants’ arguments
by producing additional affidavits and paystubs received by two of the named
Plaintiffs and two opt-in Plaintiffs that directly contradict the evidence produced
by Defendants and document noticeable inconsistencies in the record keeping.
It is not clear to the Court at this juncture whether or not any of the
Plaintiffs were, in fact, reimbursed or partially reimbursed for their travel or visa
expenses. The documents put forth by the parties do not appear to be in accord.
The issue of payment is at the heart of this case, and it is a factor that will be
more thoroughly developed in discovery so that the Court later may make a more
sound determination about how any alleged payment impacts certification if
Defendants later move for decertification.
Proposed Class and Authorization of Notice of Lawsuit
Plaintiffs seek conditional certification for a proposed FLSA class
consisting of: “All individuals employed by Defendants under the terms of the
2011, 2012, or 2013 H-2A contracts.” (Doc. 18). Defendants contend that the
proposed class is overbroad and must be limited only to those claims cognizable
under the FLSA. (Doc. 43, p. 11). Specifically, Defendants state that the class
should be restricted to include only Plaintiffs who allegedly were not reimbursed
inbound travel expenses and should exclude any potential claims for return
Defendants rely on Arriaga v. Florida Pacific Frams, LLC, 305 F.3d 1288
(11th Cir. 2002) in support of their position, arguing that the Eleventh Circuit’s
decision in that case has been applied to require reimbursement under the FLSA
only for inbound travel expenses. Arriaga explains that if an expense incurred by
the H–2A worker is determined to be “primarily for the benefit of the employer,”
the employer must reimburse the employee during the first workweek in which
the expense arose up to the amount needed to comply with the federal minimum
wage laws. 305 F.3d at 1237. Expenses deemed “primarily for the benefit of the
employer” may include transportation costs from the worker's home country to
the place of employment, visa costs, visa application fees, and immigration fees
for entry documents. Id. at 1242, 1244. However, the federal regulations also
require employers to pay outbound travel expenses for workers who complete
the work contract period. 20 C.F.R. § 655.122(h)(2). The Court therefore finds it
would be inappropriate to limit the bounds of the class. If post-discovery
redefinition of the class becomes necessary, Defendants may file an appropriate
motion to decertify the class.
The Court approves for distribution the proposed notice. Defendants shall
have two weeks from the entry of this Order to produce the full names and
permanent address for all workers whom Defendants employed under the terms
of an H-2A job order in 2011, 2012, and 2013. Plaintiffs’ counsel shall have five
(5) months from the entry of this Order to distribute the approved notice and file
opt-in Plaintiffs’ consent to sue forms. Finally, Defendants shall post the
approved notice at their worker housing barracks and dining hall.
For the foregoing reasons, Plaintiffs’ Motion for Conditional Certification
(Doc. 18) is granted, and the Court approves for distribution the proposed notice.
Within two weeks from the date of this Order, Defendants shall produce to
Plaintiffs the full names and permanent address for all workers whom Defendants
employed under the terms of an H-2A job order in 2011, 2012, and 2013.
Plaintiffs’ counsel shall have five (5) months from the entry of this Order to
distribute the approved notice and file opt-in Plaintiffs’ consent to sue forms.
Finally, Defendants shall post the approved notice at their worker housing
barracks and dining hall.
SO ORDERED this 5th day of February, 2015.
s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
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