Adams et al v. Nature's Expressions Landscaping, Inc.
Filing
26
MEMORANDUM OPINION AND ORDER: (1) Plas' 14 Motion to Certify Collective Action Status is GRANTED. (2) Plas' proposed Notice (DE 14-1) and Opt-In Consent Form (DE 14-2) are APPROVED to be sent via US First Class Mail and e-mail to the FLS A Notice Group. (4) NEL shall provide Plas' counsel with an electronic file containing the names, last known mailing addresses, last known e-mail addresses, last known phone numbers, dates of employment, and dates of birth for all members of the FLSA Notice group within 7 days. (5) Dft shall post the Notice in a conspicuous place at its physical location accessible to all employees for the duration of the opt-in period. (6) Plas' counsel shall cause the Notice and Opt-In Consent Form to be sent to all members of the FLSA Notice Group who have not already filed Opt-In Consent Forms on the docket within 10 business days of receiving the above-referenced electronic file. (7) All members of the FLSA Notice Group s hall be provided 90 days from the date of mailing the Notice and Opt-In Consent Form to opt-in to this lawsuit. (8) All Opt-In Consent Forms will be deemed to have been filed with the Court the date that they are stamped as received, and Plas& #039; counsel will file them electronically on the docket on a weekly basis, at a minimum. (9) The parties shall file a Joint Status Report, detailing their compliance with this Order and describing the progression of the case, within 14 days of the close of the opt-in period. Signed by Judge Joseph M. Hood on November 1, 2016. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
THOMAS ADAMS, et al.,
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
NATURE’S EXPRESSIONS
LANDSCAPING INC.,
Defendant.
Civil Case No.
5:16-cv-00098-JMH
MEMORANDUM OPINION
AND ORDER
***
I. INTRODUCTION
Plaintiffs
Thomas
Adams,
Adam
Allnut,
Frankie
Anderson,
Steven Atwood, Charles Cook, John Heska, and Ron Stewart move for
conditional certification of a collective action to recover unpaid
overtime wages under the Fair Labor Standards Act (“FLSA”).
14, 15].
[DE
Defendant Nature’s Expressions Landscaping, Inc. (“NEL”)
having filed a Response in Opposition, and Plaintiffs having
submitted a Reply, this matter is now ripe for the Court’s review.
[DE 19, 20].
For the reasons stated herein, the Motion to Certify
Collective Action Status is hereby GRANTED.
II. FACTUAL AND PROCEDURAL BACKGROUND
NEL
is
a
landscape
architecture
firm
that
“creates
and
constructs outdoor living spaces for clients throughout central
Kentucky.” [DE 1-1, p. 7-8, ¶ 17]. It employs approximately fifty
people, most of whom are tradespersons involved in the landscaping
1
and construction industries.
[Id.].
The majority of these
employees are subject to a “day-rate” compensatory scheme, which
NEL has used since February 2007.1
[Id. at p. 8, ¶ 18].
Although
NEL’s hiring documents indicate that employees will receive a
certain sum for a day of work, they do not explain how wages are
calculated, nor do they mention overtime wages.
[Id. at p. 8, ¶
19].
Under this “day-rate” scheme, NEL assigns each employee a
daily wage, presumably based on their position and duties.
at p. 8-9, ¶ 20].
[Id.
However, NEL also requires each employee to
work a certain amount of hours per day.
[Id. at p. 9, ¶ 22].
NEL
tracks the actual number of hours worked, then rounds them to the
nearest quarter-day, which is determined by dividing the daily
minimum hour requirement into four parts.
[Id.].
At the end of
the week, NEL prorates the employee’s daily wage to reflect the
number of quarter-days actually worked.2
[Id.].
This method is
1 Plaintiffs
estimate that thirty-five to forty of NEL’s employees are
tradespersons, while the remainder are employed in an administrative or
managerial capacity.
[DE 1-1, p. 8, ¶ 18-20].
Only the former class of
employees are subject to the “day-rate” compensatory scheme at issue in this
case. [Id.].
2 For example, the Complaint alleges that Plaintiff Frankie Anderson worked
47.283 hours for NEL between June 7, 2015 and June 13, 2015. [DE 1-1, p. 10,
¶ 23]. At that time, NEL required Anderson to work ten hours per day and paid
him $160 per day. [Id.]. Thus, assuming that Anderson was to be paid a flat
sum for a day’s work, his wages for the week would have totaled 5 x $160, or
$800. [Id.]. However, Anderson was paid $760 because he actually worked 47.283
hours that week. [Id.]. NEL calculated Anderson’s quarter-day as 10/4, or 2.5
hours. [Id.]. It then rounded Anderson’s actual time worked to the nearest
quarter-day, which was 47.5 hours or 4.75 days of work. [Id.]. Finally, NEL
multiplied 4.75 x $160, yielding $760. [Id.].
2
used to compensate employees for all work performed in a given
week, even if they worked more than forty hours.3 [Id. at p. 12, ¶
26].
In early 2016, Plaintiffs Ron Stewart and Steven Atwood filed
administrative complaints with the Kentucky Labor Cabinet (“KLC”),
seeking unpaid overtime wages from NEL.
[DE 1-1, p. 15, ¶ 36].
KLC promptly began investigating NEL’s compensation practices.
[Id.]. Although both men have since withdrawn their administrative
complaints, the KLC investigation remains pending.
¶ 37; DE 24].
unknown.
[Id. at p. 15,
However, the exact status of that proceeding is
[DE 24].
On March 8, 2016, Plaintiffs filed suit in Jessamine Circuit
Court, alleging, inter alia, that NEL used this “day-rate” scheme
to withhold overtime wages from its employees.4
¶ 73-80].
of
[Id. at p. 25-26,
NEL promptly removed the case to this Court on the basis
federal
question
and
supplemental
3
jurisdiction.
[DE
1].
Continuing with the example set forth in footnote 2, Anderson worked 7.283
hours in excess of the 40-hour maximum between June 7, 2015 and June 13, 2015.
[DE 1-1, p. 11, ¶ 25]. The Complaint alleges that these overtime hours were
calculated in the same manner as his regular wages, and thus, he was not paid
1½ times his normal rate for his overtime work, as required under the FLSA.
[Id.]. Anderson suggests that his hourly wage would have been $160/10, or $16
per hour. [Id.]. Based on this hourly wage, he estimates that was entitled to
$16 x 1.5 x 7.283, or $174.79, in overtime pay. [Id.]. Thus, Anderson concludes
that he should have been paid $800 + $174.79, or $814.79, in wages for the week
in question. [Id.]. He received $54.79 less than that sum. [Id.].
4 In addition to the FLSA claim, Plaintiffs Adam Allnutt and John Heska assert
claims for willful violations of the Kentucky Wage and Hour Act (“KWHA”)
occurring outside the FLSA’s statute of limitations. [DE 1-1, p. 27-28, 8188]. Plaintiffs Anderson and Stewart also bring claims for retaliation under
the FLSA.
[Id. at p. 28-29, ¶ 89-97].
Because Plaintiffs do not seek to
certify these claims as a collective action, the Court need not consider them
further for purposes of this analysis.
3
Plaintiffs then filed the instant Motion to Certify Collective
Action Status.
[DE 14].
III. ANALYSIS
“Congress
‘protect[ing]
enacted
all
the
covered
oppressive working hours.’”
Corp.,
132
S.
Ct.
2156,
FLSA
workers
in
1938
from
with
the
substandard
goal
wages
of
and
Christopher v. SmithKline Beecham
2162
(2012)
(quoting
Barrentine
v.
Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981)); see
also 29 U.S.C. § 202(a).
Chief among the FLSA’s provisions is the
overtime wage requirement, which generally obligates “employers to
compensate employees for hours in excess of 40 per week at a rate
of 1½ times the employees’ regular wages.”
Id. (noting that the
overtime compensation requirement does not apply to employees
occupying executive, administrative, or professional positions);
see also 29 U.S.C. §§ 207(a), 213(a).
“[T]he FLSA authorizes collective actions ‘by any one or more
employees for and on behalf of himself or themselves and other
employees similarly situated.’”
Monroe v. FTS USA, LLC, 815 F.3d
1000, 1008 (6th Cir. 2016) (quoting 29 U.S.C. § 216(b)). Similarly
situated employees may “opt-into” such suits by “signal[ing] in
writing their affirmative consent to participate in the action.”
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)
(noting that this type of suit “is distinguished from the opt-out
approach utilized in class actions under Fed. R. Civ. P. 23”).
4
“Courts typically bifurcate certification of FLSA collective
action cases.”
conditional
Monroe, 815 F.3d at 1008.
certification
be
along
situated
with
judicial
to
action.”
Such certification is “by no means final.”
454 F.3d at 546-47.
similarly
given
authorization
Id.
notify
may
“At the notice stage,
employees
of
the
Comer,
“The plaintiff must show only that his
position is similar, not identical, to the positions held by the
putative
class
members.”
(emphasis added).
lenient
standard,
Id.
(internal
quotations
omitted)
“[T]his determination is made using a fairly
and
typically
results
certification of a representative class.”
in
conditional
Id. (stating further
that “authorization of notice need only be based on a modest
factual showing”) (internal quotations omitted).
“Once discovery has concluded, the district court—with more
information on which to base its decision and thus under a more
exacting standard—looks more closely at whether the members of the
class are similarly situated.”
Monroe, 815 F.3d at 1008.
The
final-certification decision depends upon “a variety of factors,
including the factual and employment settings of the individual[]
plaintiffs, the different defenses to which the plaintiffs may be
subject on an individual basis, [and] the degree of fairness and
procedural impact of certifying the action as a collective action.”
O’Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 584 (6th Cir.
5
2009) (internal quotations omitted), overruled on other grounds by
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016).
This
case
sits
at
certification process.
the
notice
stage
of
the
bifurcated-
Plaintiffs ask the Court to conditionally
certify their FLSA claims as a collective action and order notice
of the action to all current and former employees subject to the
“day-rate” scheme, thus providing them with an opportunity to
participate therein.
Plaintiffs acknowledge that NEL used the
“day-rate” scheme to compensate a wide variety of employees,
ranging from mechanics to machine operators to crew leaders, at
different
rates.
However,
Plaintiffs
contend
that
they
are
similarly situated to the putative class members because NEL used
its “day-rate” scheme to deprive them all of overtime wages.
NEL admits that the contested compensation scheme is not a
true “day-rate” system, as that term is defined in 29 C.F.R. §
778.112.
Nevertheless, NEL characterizes its methods as FLSA-
compliant, explaining that it used “this compensatory scheme to
ensure that its employees received ‘overtime’ pay even on weeks
where they could not work a full five days due to weather or other
reasons.”
[DE 19 at 2].
Proceeding on this premise, NEL insists
that this case may be resolved by determining whether each employee
received all overtime wages earned.
vary
from
employee
to
employee,
Because this inquiry will
based
on
the
type
of
labor
performed and the hours worked in a given week, NEL argues that
6
the named Plaintiffs and the putative class members are not
similarly
situated.
Thus,
NEL
concludes
that
conditional
certification is inappropriate.
Neither of these arguments are relevant to the conditional
certification question.
Courts do not evaluate the legality of
the challenged policy at this stage, nor do they consider the
potential nuances of each Plaintiff’s claim.
See Bradford v.
Logan’s Roadhouse, Inc., 137 F. Supp. 3d 1064, 1072 (M.D. Tenn.
2015) (“At this first stage of conditional certification, the court
does not resolve factual disputes, decide substantive issues going
to the ultimate merits, or make credibility determinations.”)
(internal quotations omitted); O’Brien, 575 F.3d at 584 (stating
that courts may consider ”the factual and employment settings of
the individual[] plaintiffs” at the final-certification stage).
At
this
Plaintiffs
juncture,
have
made
the
a
Court
“modest
need
factual
only
consider
showing”
whether
that
their
“position is similar, not identical, to the positions held by the
putative class members.”
added).
Comer, 454 F.3d at 546-47 (emphasis
Plaintiffs have supported the allegations set forth in
their Complaint by submitting several affidavits, all of which
state that NEL used its “day-rate” scheme to deprive them of
overtime wages.
These submissions are sufficient to satisfy the
“fairly lenient standard” applicable at the notice stage.
Id.
Accordingly, the Court will conditionally certify Plaintiffs’
7
claims for unpaid overtime wages as a collective action under the
FLSA.
In the alternative, NEL asks the Court to stay certification
and notice of the collective action, arguing that this measure
will avoid the “needless cost” of notifying putative plaintiffs
who may accept a settlement offer through the KLC.
[DE 19 at 7].
However, such a stay could effectively bar putative class members
from participating in this action.
After all, the FLSA generally
requires employees to file suit for unpaid overtime wages within
two years of the accrual of their cause of action.
29 U.S.C. §
255(a) (noting that employees have three years to file suit for
willful violations of the FLSA).
Although the named party plaintiffs have already commenced
this action, their filing date does not apply to employees who
later “opt-in” to the collective action.
29 U.S.C. § 256(b).
Rather, claims brought by “opt-in” members of the collective action
are commenced upon the filing of written consent to become a party
plaintiff therein.
Id.
Because Plaintiffs allege that NEL’s
policy has been in existence since 2007, it is possible that some
putative members have claims that are already time-barred.5
1-1, p. 12, ¶ 28].
[DE
It would be inconsistent with “remedial
purpose” of the FLSA to further limit the ability of putative
5
In fact, two of the named Plaintiffs, Adam Allnut and John Heska, had to file
“individual actions … for willful violations of the KWHA occurring prior to the
applicable statute of limitations for the FLSA.” [DE 1-1, p. 4, ¶ 1].
8
members to join the collective action at this early stage.
Monroe,
815
F.3d
at
1008.
Thus,
the
Court
declines
See
NEL’s
invitation to stay conditional certification and notice of the
collective action.
As a final matter, NEL suggests that Plaintiffs’ proposed
Notice and Opt-In Consent Form be modified to include “a statement
regarding settlement through the [KLC].”
[DE 19 at 5].
However,
the parties have already entered into an Agreed Protective Order,
intended “to keep the KLC administrative matter and this action
separated and to prohibit any form of possible double recovery.”
[DE 25].
That Order does not provide for the inclusion of such
language in the Notice and Opt-In Consent Form.
[Id.].
Moreover,
the use of such language could blur the line between the KLC
administrative proceedings and this collective action, contrary to
the spirit of the Agreed Protective Order.
Plaintiffs’ proposed
Notice and Opt-In Consent Form is therefore approved as drafted.
[DE 14-1, 14-2].
IV. CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)
Plaintiffs’ Motion to Certify Collective Action Status
[DE 14] is hereby GRANTED;
(2)
Plaintiffs’ FLSA claims may proceed conditionally as a
collective action;
9
(3)
Plaintiffs’ proposed Notice [DE 14-1] and Opt-In Consent
Form [DE 14-2] are APPROVED to be sent via U.S. First Class Mail
and e-mail to the FLSA Notice Group, which includes all individuals
currently or formerly employed by NEL who, within the three-year
period preceding the date of this Court’s certification Order,
were compensated under the “day-rate” scheme, as that term is
described in Plaintiffs’ Complaint, and who worked hours in excess
of forty (40) during any week throughout the course of their
employment;
(4)
NEL shall provide Plaintiffs’ counsel with an electronic
file containing the names, last known mailing addresses, last known
e-mail addresses, last known phone numbers, dates of employment,
and dates of birth for all members of the FLSA Notice Group within
seven (7) days of the date of entry of this Order;
(5)
Defendant shall post the Notice in a conspicuous place
at its physical location accessible to all employees for the
duration of the opt-in period;
(6)
Plaintiffs’ counsel shall cause the Notice and Opt-In
Consent Form to be sent to all members of the FLSA Notice Group
who have not already filed Opt-In Consent Forms on the docket
within ten (10) business days of receiving the above-referenced
electronic file;
10
(7)
All members of the FLSA Notice Group shall be provided
ninety (90) days from the date of mailing the Notice and Opt-In
Consent Form to opt-in to this lawsuit;
(8)
All Opt-In Consent Forms will be deemed to have been
filed with the Court the date that they are stamped as received,
and Plaintiffs’ counsel will file them electronically on the docket
on a weekly basis, at a minimum; and
(9)
The parties shall file a Joint Status Report, detailing
their compliance with this Order and describing the progression of
the case, within fourteen (14) days of the close of the opt-in
period.
This the 1st day of November, 2016.
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