Johnston v. J&B Mechanical, LLC

Filing 27

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 9/1/2017 granting 14 Motion to Certify a Collective Action and to Facilitate Notice to Collective Plaintiffs: The parties shall file a joint status report, detailing their compliance with this Order, within fifteen (15) days of the close of the opt-in period. cc: Counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17CV-00051-JHM
JACK JOHNSTON, individually and on
behalf of those similarly situated

PLAINTIFF/COUNTER-DEFENDANT

V.
J&B MECHANICAL, LLC

DEFENDANT/COUNTERCLAIMANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Plaintiff, Jack Johnston, to conditionally
certify a collective action and to facilitate notice to collective plaintiffs [DN 14]. Fully briefed,
this matter is ripe for decision.
I. BACKGROUND
Plaintiff, Jack Johnston, filed a civil action against Defendant, J&B Mechanical, LLC,
alleging that J&B Mechanical failed to pay the correct amount of overtime compensation to
Johnston and others similarly situated in violation of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq. (Complaint ¶1.) Johnston was employed by J&B Mechanical from July 18,
2009, through January 21, 2017, as a millwright laborer and a field foreman. Johnston alleges
that he was one of an estimated 40 to 80 individuals employed by J&B Mechanical in the past
few years as millwrights who served in the capacity of a helper, laborer, or field foreman.
Johnston represents that all such personnel performed substantially the same work for the
company as millwrights. Johnston avers that in a normal work week, he would work 50 to 70
hours or more for J&B Mechanicals, and approximately seven to 10 of those hours were spent in
travel time to out-of-town work sites. Johnston alleges that J&B Mechanical did not count its

millwrights’ travel time towards their total number of hours worked for calculation and payment
of hourly overtime wages in violation of the FLSA.
J&B Mechanical filed an answer denying that it failed to pay the correct amount of
overtime compensation.

(Answer ¶¶ 17-27.)

Contemporaneously with its answer, J&B

Mechanical filed a counterclaim against Johnston alleging that Johnston “engaged in a pattern
and practice of fraud, misrepresentation, disloyalty, and deceit” with respect to time he reported
working at or while traveling to or from out-of-town worksites. (Counterclaim ¶¶ 8-9.) Johnston
now moves the Court to conditionally certify a class of current and former field foremen,
laborers, or helpers, or other functional equivalents, to approve notice to advise putative
plaintiffs of their rights under the FLSA, and to furnish them an opportunity to opt-in to this
action. J&B Mechanical opposes the conditional certification and certain aspects of Johnston’s
proposed notice.
II. DISCUSSION
The Fair Labor Standards Act (“FLSA”) mandates that “‘employers pay a federallyestablished minimum wage, as well as overtime, to certain types of employees.’” Tassy v.
Lindsay Entertainment Enterprises, Inc., 2017 WL 938326, *2 (W.D. Ky. Mar. 9, 2017)(quoting
Boaz v. FedEx Customer Info. Servs., Inc., 725 F.3d 603, 605 (6th Cir. 2013) (citing 29 U.S.C.
§§ 206(a), 207(a)). To enforce that mandate, the FLSA provides that an employee may bring a
claim “for and in behalf of himself . . . and other employees similarly situated.” 29 U.S.C. §
216(b). A collective action under the FLSA permits similarly situated employees to “opt in” to
the action, unlike the opt-out approach typically utilized under Federal Rule of Civil Procedure
23. “An opt-in action under § 216(b) prohibits any person from becoming a party plaintiff in the
collective action unless he or she files a written consent with the Court; therefore, these similarly

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situated employees must be notified of the lawsuit.” Ross v. Jack Rabbit Servs., LLC, 2014 WL
2219236, at *2 (W.D. Ky. May 29, 2014)(citing Comer v. Wal–Mart Stores, Inc., 454 F.3d 544,
546 (6th Cir. 2006)).
In the first stage, “which takes place at the beginning of discovery, the Court must
determine whether to conditionally certify the collective action and authorize the distribution of
notice to putative class members.” Tassy, 2017 WL 938326, *2 (citing Comer, 454 F.3d at 546–
47).

Because conditional certification decisions generally are made prior to discovery, “a

plaintiff’s evidentiary burden is not a heavy one.” Ross, 2014 WL 2219236, *2. “Conditional
certification requires only a modest factual showing that the putative opt-plaintiffs are ‘similarly
situated’ to the named plaintiff.” Tassy, 2017 WL 938326, *2 (citing White v. Baptist Memorial
Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012)). “At this stage, courts generally consider
the pleadings and any affidavits which have been submitted.” Green v. Platinum Restaurants
Mid-America, LLC, 2015 WL 6454856, at *1 (W.D. Ky. Oct. 26, 2015). The initial certification
is “conditional and by no means final.” Comer, 454 F.3d at 546.
The second stage occurs “after ‘all of the opt-in forms have been received and discovery
has concluded.’” Comer, 454 F.3d at 546 (citation omitted). “In making its final-certification
decision, the Court scrutinizes a number of factors, such as “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.’” Tassy, 2017 WL 938326, *2 (quoting O’Brien v. Ed Donnelly
Enterprises, 575 F.3d 567, 584 (6th Cir. 2009)(alterations in original) (quoting 7B Charles Alan
Wright et al., Federal Practice and Procedure § 1807, at 497 n.65 (3d ed. 2005)). “Regardless of

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the stage, the lead plaintiff bears the burden of ‘showing that the opt-in plaintiffs are similarly
situated.” Tassy, 2017 WL 938326, *2 (citing Wright et al., supra, § 1807, at 476 n.21).
A. Conditional Certification
The Court finds that Johnston has provided sufficient factual support to merit conditional
certification of a collective action. “In order to show that conditional certification is proper, all
that [Johnston] must show at this stage is that [his] ‘position is similar, not identical, to the
positions held by the putative class members.’” Tassy, 2017 WL 938326, *2 (quoting Comer,
454 F.3d at 546-47.). Here, Johnston submitted an affidavit stating that all hourly, non-exempt
employees of J&B Mechanical in the positions of field foremen, laborers, helpers, or other
functional equivalents, were for all wage and hour purposes treated similarly. Johnston avers
that while working on a job site, all members of the crew did essentially the same type of work,
regardless of whether they were classified by the company as field foremen, laborers, or helpers.
(Johnston Aff. ¶ 8.) According to Johnston, all of these employees received pay at differential
rates, based on whether they were working on “in-town” or on “out-of-town” jobs. (Johnston
Aff. ¶¶ 15, 19, 22.)

These employees received mileage payments when working on “out-of-

town” jobs, in lieu of hourly overtime wages. (Id.) Johnston represents that he worked and rode
with other field foremen and millwrights on extended travel duty for J&B Mechanical. (Id. ¶¶
21-22.) Based on his discussions with other co-workers, Johnston avers that he has been able to
determine that the pay scheme enacted by J&B Mechanical is applicable across the board. (Id. at
¶¶15-22.) In fact, Johnston specifically lists 19 other individuals that he contends did not receive
the correct amount of overtime pay. (Id. at ¶ 20.)
J&B Mechanical disagrees. It asks the Court to deny conditional certification of the
collective action arguing that Johnston has failed to meet his burden of proving that he is

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similarly situated to other members of the putative collective action. The Court will address
these arguments in turn.
First, J&B Mechanical argues that it has filed several counterclaims, including breach of
duty of loyalty, fraud, negligent misrepresentation, and unjust enrichment, against Johnston
which renders him a poor representative of the putative collective action. J&B Mechanical
maintains that he over-reported his hours worked and claimed entitlement to “per diem”
payments on days that such payments were not earned pursuant to the company’s policy. J&B
Mechanical also suggests that the counterclaims bring Johnston’s credibility into question. At
the first stage, district courts within the Sixth Circuit do not “resolve factual disputes, decide
substantive issues going to the ultimate merits, or make credibility determinations.” Bradford v.
Logan's Roadhouse, Inc., 137 F. Supp. 3d 1064, 1072 (M.D. Tenn. 2015); Shipes v. Amurcon
Corp., 2012 WL 995362, at *5 (E.D. Mich. Mar. 23, 2013); Myers v. Marietta Mem’l Hosp., 201
F. Supp. 3d 884, 891 (S.D. Ohio 2016).

While J&B Mechanical’s counterclaims may be

meritorious, the Court finds it inappropriate to engage in a merits analysis at this stage of the
action in order to determine whether a conditional certification is warranted.
Second, J&B Mechanical asserts that conditional certification is inappropriate because
Johnston is likely subject to the motor carrier exemption under the FLSA, 29 U.S.C. § 213(b)(1).
The motor carrier exemption provides that overtime pay requirements are not applicable to “any
employee with respect to whom the Secretary of Transportation has power to establish
qualifications and maximum hours of service pursuant to provisions of [the Motor Carrier Act].”
29 U.S.C. § 213(b)(1). “Courts generally do not evaluate the legality of the challenged policy or
the applicability of an FLSA exemption at this stage of the certification process.” Williams v.
King Bee Delivery, LLC, 2017 WL 987452, *4 (E.D. Ky. Mar. 14, 2017)(citing Bradford, 137 F.

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Supp. 3d at 1072); Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 769 (N.D. Ohio 2015) (“It
would be inappropriate to consider the merits of defendant’s defense at this time, before the
record has been developed.”). Because this argument is premature, the Court need not consider
it further.
Third, J&B Mechanical argues the potential applicability of the motor carrier exemption
would predominate the collective litigation requiring a fact-intensive analysis of each
employee’s job to determine whether the exemption applies. Again, this argument is more
appropriately discussed in the final certification stage. As noted above, courts consider “the
factual and employment settings of the individual[] plaintiffs” at the final certification stage.
Williams, 2017 WL 987452, *5 (citing O’Brien, 575 F.3d at 584). See also Waggoner, 110 F.
Supp. 3d at 769-770 (finding that evidence of plaintiffs’ varying job duties is best reserved for
second stage of the process). The possibility that individual issues will predominate is a matter
that the Court will consider at the second stage.
Finally, J&B Mechanical argues that Johnston’s proposed opt-in group is overbroad
demonstrating the limited personal knowledge on which Johnston bases his claim that he is
similarly situated to other employees.

J&B Mechanical further argues that conditional

certification should be denied because Plaintiff has provided no indication that any other
employees have shown an interest in asserting a claim against Defendant. As noted above,
“[c]onditional certification requires only a modest factual showing that the putative opt-in
plaintiffs are ‘similarly situated’ to the named plaintiff.” Tassy, 2017 WL 938326, *2. In his
affidavit, Johnston represents that he worked and rode with other field foremen and millwrights
on extended travel duty for J&B Mechanical and discussed the pay scheme with those workers.
(Johnston Aff. at ¶¶ 15-22.) In fact, Johnston specifically lists 19 other individuals that he

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contends did not receive the correct amount of overtime pay. (Id. at ¶ 20.) Johnston’s affidavit
clearly demonstrates personal knowledge on which he bases his claim. Furthermore, the purpose
of the conditional certification stage is not to determine if potential plaintiffs will join, but to
actually give them notice of the pending collective action so they can decide whether to opt-in to
the lawsuit.
For these reasons, the Court finds that Johnston has come forward with the modest
factual showing sufficient to satisfy the fairly lenient standard governing conditional certification
of collective actions under the FLSA. Accordingly, the Court will grant Johnston’s request for
conditional certification.
B. Proposed Notice
After the class is conditionally certified, the Court must determine if the proposed notice
is fair and accurate to properly inform prospective plaintiffs of the action. Green v. Platinum
Restaurants Mid-America, LLC, 2015 WL 6454856, at *3 (W.D. Ky. Oct. 26, 2015). “A class
action depends ‘on employees receiving accurate and timely notice concerning the pendency of
the collective action, so that they can make informed decisions about whether to participate.’” Id.
(citation omitted). “‘[A] district court has discretion to facilitate notice to potential plaintiffs.’”
Id. (quoting Bassett v. Tennessee Valley Auth., 2010 WL 3092251, at *2-3 (W.D. Ky. Aug. 5,
2010) (citation omitted)). J&B Mechanical objects to portions of Johnston’s proposed notice to
the potential class members.
1. The Opt-In Time Period
J&B Mechanical argues that the requested opt-in period of 60 days from the date of
mailing of notice of the proceeding to putative plaintiffs is indefinite and excessive. J&B
Mechanical maintains that because the collective group is located at a single facility in a small

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town, J&B Mechanical proposes a lesser period of 30 to 45 days. Further, J&B Mechanical
contends that the opt-in period should run from the date of the court order granting conditional
certification, not from the date Plaintiff’s counsel decides to mail the notices.
The Court finds that the opt-in time is appropriate.

“A sixty-day notice-period is

necessary to provide each possible class member with the opportunity to make an informed
decision about whether to opt-in to this collective action.” Tassy, 2017 WL 938326, *4. A
notice period of this length will not needlessly delay the resolution of the litigation.

Id.

Furthermore, district courts in the Sixth Circuit routinely order the 60 day opt-in period to
commence from the date of mailing the notice and consent forms to putative plaintiffs.
Williams, 2017 WL 987452, *7; Tassy, 2017 WL 938326, *4. The Court will direct counsel
when to mail the notice and consent form to the putative plaintiffs.
2. Phone Numbers of Putative Plaintiffs
J&B Mechanical objects to Johnston’s request for the telephone numbers of J&B
Mechanical’s current and former employees. J&B Mechanical objects arguing that Johnston has
not established that the company is unwilling or unable to provide the correct mailing addresses
for its employees or other reasons that would make the request for personal telephone numbers
remotely appropriate. However, district courts within the Sixth Circuit consistently require the
production of telephone numbers of members of the notice group. See Tassy, 2017 WL 938326,
*5; Ross, 2014 WL 2219236, *4.
3. Proposed Notice and Opt-In Form
J&B Mechanical argues that the content of Johnston’s proposed notice and consent form
contains a number of deficiencies and requires substantial revision. Without providing reasons
for the objections or providing authority to support the revisions, J&B Mechanical attaches a

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redlined version of the notice showing its proposed alterations. A review of the redlined forms
tendered by J&B Mechanical reflects three main issues that must be addressed.
a. Description of the Group of Notice Recipients
Johnston seeks to provide notice of the collective action to: “All current and former
employees of J&B Mechanical, LLC who held hourly, non-exempt positions as ‘Field Foreman,’
‘Laborer,’ ‘Helper,’ or other functionally equivalent positions, who worked during the three (3)
year period prior to filing the attached Consent form.” (DN 14-3 at 1.) J&B Mechanical suggests
that the description of the group entitled to receive notice of this proceeding should be narrowed
to: “Those millwrights who worked for J&B Mechanical, LLC from __________, 2014 to the
present who engaged in work-related travel such that their travel time, when added to their other
working hours, exceeding forty hours in a workweek and who were not paid time and a half for
those hours worked in excess of forty in a given workweek.” (DN 17-9, DN 17-11 at 1.)
The Court finds J&B Mechanical’s proposed description of the notice group is too
narrow and could confuse potential opt-in plaintiffs and deter them from participating in this
action. See Williams, 2017 WL 987452, *6. As noted by Johnston, the potential opt-in plaintiffs
may not recall how many hours they worked in a given week, or whether or how the hours were
split between work-related travel and other hours spent on the job. Further, the potential opt-in
plaintiffs who were or are employed as field foremen may not immediately think of themselves
as millwrights falling within the description of those having potential claims against Defendant.
“Moreover, defining the Notice Group in broader terms best serves the remedial objectives of the
FLSA.” Id. If, after discovery, the parties find that an opt-in plaintiff “did not work more than
forty hours per week without receiving overtime wages, then he or she will simply be regarded
as a member of the collective action with no damages.” Id.

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b. Description of the Proceeding
In its proposed changes to the notice, J&B Mechanical removes almost the entire
Introduction section. Johnston’s proposed Introduction section provides:
The purpose of this Notice is to advise you that there is
currently pending, in the United States District Court for the
Western District of Kentucky, a collective action filed pursuant to
the Fair Labor Standards Act (FLSA) which may affect the rights
of any person employed (or formerly employed) by J&B
Mechanical, LLC, who worked in excess of forty (40) hours a
week but was not paid the correct amount of overtime wages. This
Notice is further to advise you how to join this lawsuit if you wish
to do so and what obligations you may incur if you decide to join
the lawsuit.
(Plaintiff’s Proposed Notice, DN 14-3.) J&B Mechanical seeks to alter the Introduction in the
following manner:
The purpose of this Notice is (1) to inform you of a lawsuit
against J&B Mechanical, LLC which you may have the right to
join, (2) to advise you of how your rights may be affected by this
suit, and (3) to instruct you how to participate in the suit should
you decide to do so. This Notice does not mean that you have a
valid claim or that you are entitled to any monetary recovery. Any
such determination shall be made by the Court.
(Defendant’s Proposed Notice, DN 17-9 at 1.) Johnston objects to this change arguing that the
purpose of a conditional notice is to provide those employees that are potentially affected by the
proceeding accurate and timely notice of the collective action, “so that they can make informed
decisions about whether to participate.” (Plaintiff’s Reply at 11-12.)
The Court has reviewed notices in similar collective actions in the Kentucky federal
district courts. The Court approves the following language:
The purpose of this Notice is to inform you of the existence
of a collective action lawsuit brought against J&B Mechanical,
LLC in the United States District Court for the Western District of
Kentucky pursuant to the Fair Labor Standards Act (“FLSA”)
which may affect the rights of any person employed or formerly
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employed by J&B Mechanical, LLC, who worked in excess of
forty (40) hours a week but was not paid the correct amount of
overtime wages. This Notice serves to inform you of the rights
that you may have in connection with the lawsuit and to instruct
you how to join the lawsuit should you decide to do so.
This Notice is for the purpose of determining the identity of
those persons who want to be involved in this lawsuit. Although
the Court has authorized notice to be sent, the Court has taken no
position regarding the merits of the case.

c. Role of Plaintiff’s Counsel
J&B Mechanical suggests the addition of the following language in the proposed notice:
“[i]f you chose to join this suit, you may choose to be represented by Biesecker Dutkanyeh &
Macer, LLC, who are the attorneys for Plaintiff Jack Johnston.” Additionally, in its proposed
modification to the consent form, J&B Mechanical requests the Court to provide prospective
plaintiffs the opportunity to join the action and designate another attorney. As a result of these
proposed changes, Johnston argues that J&B Mechanical is attempting to direct putative
plaintiffs away from Plaintiff’s counsel of record in this case. “[S]everal courts within the Sixth
Circuit have observed that ‘Plaintiffs’ counsel is counsel of record; and, if any potential plaintiff
chooses to opt-in, that plaintiff will be represented by Plaintiffs’ counsel.’” Williams, 2017 WL
987452, *9 (quoting Fisher v. Michigan Bell Tele. Co., 665 F. Supp. 2d 819, 829 (E.D. Mich.
2009)); see also Gomez v. ERMC Prop. Mgmt. Co., LLC, 2014 WL 3053210, at *2 (N.D. Ohio
July 7, 2014) (citing Adams v. Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 541 (N.D. Cal. 2007))
(concluding that the invitation to bring additional counsel into the lawsuit likely would defeat the
efficient operation of the litigation). “Because the addition of attorneys in this case would likely
diminish the efficiency of the collective action mechanism,” and because Johnston’s proposed
notice clearly states that potential opt-in plaintiffs may decide not to be included in this lawsuit

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and may “pursue [their] own claim or lawsuit at [their] own cost and with [their] own counsel,”
the Court sees no need to incorporate J&B Mechanical’s suggested language. Williams, 2017
WL 987452, *9.
d. Additional Changes
Defendant has made additional suggested changes to the notice and the consent form.
Neither party has addressed those changes in their briefs. The Court is confident that the parties
can come to an agreement regarding the remaining issues. Accordingly, the parties shall confer
regarding the notice and submit a proposed notice revised in accordance with this opinion no
later than fifteen (15) days from the date of this opinion. If the parties still disagree as to any
specific language in the notice and opt-in consent form, the parties shall identify the disputed
language along with the party’s proposed language and supporting authority, and the Court will
resolve the dispute. Furthermore, the parties shall include the appropriate headings on the notice
and consent form to reflect the court, division, case number, and style of the case.
III. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the motion by
Plaintiff, Jack Johnston, to conditionally certify a collective action and to facilitate notice to
collective plaintiffs [DN 14] is GRANTED;
IT IS FURTHER ORDERED that within fifteen (15) days of the date of entry of this
order, Defendant shall provide to Plaintiff the contact information for all putative class members,
including their names, last known addresses, and last known telephone numbers;
IT IS FURTHER ORDERED that within fifteen (15) days of entry of this order, the
parties shall confer and file with the Court an agreed-upon notice and consent form consistent
with this opinion for Court approval. If the parties disagree as to any specific language in the

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notice and opt-in consent form, the parties shall identify the disputed language along with
supporting memoranda and each party’s proposed language;
IT IS FURTHER ORDERED that within fifteen (15) days of approval of the notice and
consent form by the Court, Plaintiff shall send the notice and consent form by first-class mail to
all potential plaintiffs;
IT IS FURTHER ORDERED that all members of the Notice Group shall be provided
sixty (60) days from the date of mailing the notice and consent form to opt-in to this lawsuit;
IT IS FURTHER ORDERED that all consent forms will be deemed to have been filed
with the Court the date they are stamped as received, and Plaintiff’s counsel shall file them
electronically on a weekly basis, at a minimum;
IT IS FURTHER ORDERED that the parties shall file a joint status report, detailing
their compliance with this Order, within fifteen (15) days of the close of the opt-in period.

cc: counsel of record
September 1, 2017

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