Leon v. Diversified Concrete, LLC et al
Filing
33
ORDER & REASONS: granting 10 Motion for Conditional Class Certification, Judicial Notice, and for Disclosure of the Names and Addresses of Potential Opt-In Plaintiffs as set forth in document and this matter is conditionally certified as a coll ective action pursuant to 29 U.S.C. 216(b). IT IS FURTHER ORDERED that Notice shall be sent to the following: "All individuals who worked or are working for Diversified Concrete, LLC, during the previous three years and who are eligible for ov ertime pay pursuant to the Fair Labor Standards Act, 29 U.S.C. 207, and who did not receive full overtime compensation." IT IS FURTHER ORDERED that Defendants shall have fourteen (14) days from the entry of this Order to produce the full names , dates of employment, and last known addresses of all potential opt-in plaintiffs. IT IS FURTHER ORDERED that the time period within which potential opt-in plaintiffs may opt-in is ninety (90) days. The ninety (90) day opt-in period will begin to run on the date that Defendants provide a complete list of the names, dates of employment, and last known addresses of all potential opt-in plaintiffs. Signed by Judge Carl Barbier on 5/13/16. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PEDRO LEON
CIVIL ACTION
VERSUS
NO: 15-6301
DIVERSIFIED CONCRETE LLC
ET AL.
SECTION: “J”(5)
ORDER & REASONS
Before
the
Court
is
a
Motion
for
Conditional
Class
Certification, Judicial Notice, and for Disclosure of the Names
and Addresses of Potential Opt-In Plaintiffs (Rec. Doc. 10) filed
by Plaintiff, Pedro Leon; an opposition thereto (Rec. Doc. 13)
filed by Defendants, Diversified Concrete LLC, Ryan Rodgers, and
Bradley Rodgers; and Plaintiff’s reply (Rec. Doc. 21). Having
considered the motion and legal memoranda, the record, and the
applicable law, the Court finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This is an action brought by Plaintiff Pedro Leon on behalf
of himself and all other similarly situated to recover allegedly
unpaid
overtime
wages
for
work
he
performed
for
Diversified
Concrete LLC, Ryan Rodgers, and Bradley Rodgers. Plaintiff filed
his Complaint against Defendants on November 24, 2015. (Rec. Doc.
1.)
Plaintiff
(“Diversified”)
alleges
is
a
that
commercial
Diversified
concrete
Concrete
construction
LLC
company
operating within the New Orleans, Baton Rouge, and Mississippi
Gulf Coast regions. Id. at 3. Plaintiff alleges that he was hired
by Defendants as a laborer in February 2015 to perform work such
as digging, molding, and pouring concrete. Id. at 2. Plaintiff
alleges that he was supervised by a Diversified employee and worked
alongside crews of six to eight other Diversified laborers at each
jobsite. Id.
Plaintiff asserts that Defendants paid him by check at an
hourly rate of $12.00 per hour. Id. at 3. According to Plaintiff,
he and his coworkers often worked more than forty hours per week.
Id. at 5. However, Plaintiff claims Defendants willfully failed to
pay him and other similarly situated employees overtime wages for
hours worked in excess of forty per week, in violation of the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 207. Id. As a result,
Plaintiff seeks to recover unpaid wages, interest, liquidated
damages, and reasonable attorney’s fees and costs on behalf of
himself and other similarly situated employees who worked for
Defendants during the past three years. Id. at 1-2. Plaintiff also
brings this action to obtain declaratory and injunctive relief.
Id. at 2.
In addition, Plaintiff filed an Amended Complaint on May 4,
2016, asserting a second cause of action against Defendants on
behalf of himself and a putative class to recover penalties for
the deduction of workers’ compensation premiums from Plaintiff’s
paychecks.
(Rec.
Doc.
30.)
Plaintiff
2
claims
that
Defendants
deducted workers’ compensation premiums from employees’ paychecks
in violation of Louisiana Revised Statute § 23:1163. Id. at 6-7.
Plaintiff filed the instant Motion for Conditional Class
Certification, Judicial Notice, and for Disclosure of the Names
and Addresses of Potential Opt-In Plaintiffs (Rec. Doc. 10) on
March 29, 2016. Defendants opposed the motion on April 12, 2016.
The Court granted Plaintiff leave to file a reply on April 20,
2016. The motion is now before the Court on the briefs.
PARTIES’ ARGUMENTS
Plaintiff seeks to maintain his FLSA claim as a collective
action pursuant to 29 U.S.C. § 216(b) and moves the Court to
conditionally certify a collective action of Defendants’ employees
limited to the following:
All individuals who worked or are working for
Diversified Concrete, LLC during the previous three
years and who are eligible for overtime pay pursuant to
the FLSA, 29 U.S.C. § 207 and who did not receive full
overtime compensation.
(Rec. Doc. 10-2, at 6.) In conjunction with allowing the FLSA
action to proceed collectively, Plaintiff asks the Court to direct
Defendants to provide the names, phone numbers, and last known
addresses of potential opt-in plaintiffs. Id. at 7. Plaintiff also
asks the Court to approve a proposed notice to send to the
potential opt-in plaintiffs. Id.
In support of the motion, Plaintiff relies on the allegations
of his Complaint as well as his attached affidavit. Plaintiff
3
argues that this information demonstrates clear violations of the
FLSA that are not personal to Plaintiff but rather are part of
Defendants’ general policy not to pay their employees overtime.
Id.
at
8.
Further,
Plaintiff
argues
that
this
information
establishes that there is likely a group of similarly situated
individuals entitled to receive notice of this lawsuit. Id. at 12.
In
response,
Defendants
contend
that
Plaintiff’s
motion
should be denied because Plaintiff was not covered by the FLSA
and, even if he was, he only worked two and a half hours of overtime
and was overpaid. (Rec. Doc. 13.) Defendants first argue that the
FLSA does not cover Plaintiff because he never left Louisiana
working for Diversified and he did not work with “goods involved
in interstate commerce.” Id. at 6. Second, Defendants assert that
Plaintiff only worked in excess of forty hours in a week on two
occasions, totaling two and a half hours of overtime. Id. at 2-3.
Consequently,
if
Plaintiff
is
entitled
to
overtime
wages,
Defendants argue the most Plaintiff would be due is $16.25 plus
liquidated damages. 1 Id. at 2. However, Defendants claim that
Diversified “gave” Plaintiff an additional check for $200.00 on
May 1, 2015, and another $200.00 check on June 6, 2015. 2 Id.
1
Defendants claim that Plaintiff was paid at an hourly rate of $13.00 per hour,
less a deduction of 0.0917 for workers’ compensation premiums. (Rec. Doc. 13,
at 2.)
2 Defendants provide no explanation for these two payments of $200.00. However,
questions regarding whether overtime was paid go well beyond the scope of
conditional certification at issue in the instant motion and into the merits of
Plaintiff’s FLSA claim.
4
Therefore, Defendants argue that even if Plaintiff was a covered
employee under the FLSA, after offsetting for these extra payments,
he actually owes them $367.50. Id. In addition, Defendants argue
that if Plaintiff’s motion is granted, the notified class should
be limited to the time period that Plaintiff was employed and the
opt-in period should be no more than forty-five days. Id. at 7.
LEGAL STANDARD
Section 207 of the FLSA provides the mandatory parameters for
overtime pay. 29 U.S.C. § 207. Section 216(b) of the FLSA affords
workers a right of action for violations of these parameters. Id.
§ 216(b). Such workers may sue individually or collectively on
behalf of “themselves and other employees similarly situated.” Id.
To participate in a collective action, each employee must give his
consent in writing by notifying the court of his intent to opt in.
Id. “District courts are provided with discretionary power to
implement the collective action procedure through the sending of
notice to potential plaintiffs.” Lima v. Int'l Catastrophe Sols.,
Inc., 493 F. Supp. 2d 793, 797 (E.D. La. 2007). The notice must be
“timely, accurate and informative.” Id. (citing Hoffman-La Roche,
Inc. v. Sperling, 493 U.S. 165, 169 (1989)).
Before disseminating notice to potential plaintiffs, a court
must determine that the named plaintiffs and the members of the
potential collective class are “similarly situated.” Basco v. WalMart Stores, Inc., No. 00-3184, 2004 WL 1497709, at *3 (E.D. La.
5
July 2, 2004). Courts recognize two methods of determining whether
plaintiffs are sufficiently “similarly situated” to advance their
claims in a single collective action pursuant to § 216(b): the
two-stage class certification approach typified by Lusardi v.
Xerox Corp., 122 F.R.D. 463 (D.N.J. 1988), and the “spurious” class
action approach espoused by Shushan v. University of Colorado, 132
F.R.D. 263 (D. Colo. 1990). 3 Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1213-14 (5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). The Fifth Circuit has
expressly refused to endorse either method over the other. Acevedo
v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 518-19 n.1
(5th Cir. 2010) (citing Mooney, 54 F.3d at 1216). However, Lusardi
is the prevailing approach among the district courts in this
circuit and around the country. See, e.g., Banegas v. Calmar Corp.,
No. 15-593, 2015 WL 4730734, at *3 (E.D. La. Aug. 10, 2015).
The Lusardi approach comprises two stages. Acevedo, 600 F.3d
at 519; Mooney, 54 F.3d at 1213. First, during the “notice stage,”
the court conducts an initial inquiry of “whether the putative
class members’ claims are sufficiently similar to merit sending
notice of the action to possible members of the class.” Acevedo,
600 F.3d at 519; accord Mooney, 54 F.3d at 1213-14. Courts usually
3Under the Shushan approach, the “similarly situated” inquiry in FLSA collective
action certification is considered to be coextensive with Rule 23 class
certification. In other words, the court looks at “numerosity,” “commonality,”
“typicality” and “adequacy of representation” to determine whether a class
should be certified. Mooney, 54 F.3d at 1214.
6
base this decision upon “the pleadings and any affidavits which
have been submitted.” Mooney, 54 F.3d at 1214. Because of the
limited evidence available at this stage, “this determination is
made using a fairly lenient standard, and typically results in
‘conditional
certification’
of
a
representative
class.”
Id.
(footnote omitted). Although the standard is lenient, “it is by no
means automatic.” Lima, 493 F. Supp. 2d at 798. If the court
conditionally certifies the class, putative class members are
given notice and the opportunity to opt in. Mooney, 54 F.3d at
1214. The case then proceeds through discovery as a representative
action. Id.
The
second
stage
is
usually
triggered
by
a
motion
for
decertification filed by the defendant, typically “after discovery
is largely complete and more information on the case is available.”
Acevedo, 600 F.3d at 519. At this stage, the court “makes a final
determination of whether all plaintiffs are sufficiently similarly
situated to proceed together in a single action.” Id. If the
plaintiffs are not similarly situated, the court decertifies the
class, and the opt-in plaintiffs are dismissed without prejudice.
Mooney, 54 F.3d at 1214.
DISCUSSION
A.
Conditional Certification of Collective Action
The
fundamental
inquiry
presented
at
the
conditional
certification stage is whether the named plaintiff and members of
7
the
potential
collective
class
are
“similarly
situated”
for
purposes of § 216(b). The FLSA does not define the term “similarly
situated,” and the Fifth Circuit has “not ruled on how district
courts
should
determine
whether
plaintiffs
are
sufficiently
‘similarly situated’ to advance their claims together in a single
§ 216(b) action.” Prejean v. O'Brien's Response Mgmt., Inc., No.
12-1045, 2013 WL 5960674, at *4 (E.D. La. Nov. 6, 2013) (quoting
Acevedo, 600 F.3d at 518-19). Rather, this determination requires
a fact-intensive, ad hoc analysis. Id. at *5; Kuperman v. ICF
Int'l, No. 08-565, 2008 WL 4809167, at *5 (E.D. La. Nov. 3, 2008).
Although a lenient standard is applied at the notice stage, “the
court still requires at least ‘substantial allegations that the
putative class members were together the victims of a single
decision, policy, or plan [that violated the FLSA].’” H & R Block,
Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999) (citation
omitted) (quoting Mooney, 54 F.3d at 1214 n.8).
“Courts have repeatedly stressed that Plaintiffs must only be
similarly—not
identically—situated
to
proceed
collectively.”
Prejean, 2013 WL 5960674, at *5 (quoting Falcon v. Starbucks Corp.,
580
F.
Supp.
certification
2d
is
528,
534
appropriate
(S.D.
Tex.
when
there
2008)).
is
“a
Conditional
demonstrated
similarity among the individual situations . . . [and] some factual
nexus which binds the named plaintiffs and the potential class
members together as victims of a particular alleged [policy or
8
practice].” Xavier v. Belfor USA Grp., Inc., 585 F. Supp. 2d 873,
877-78 (E.D. La. 2008). Thus, a court can foreclose a plaintiff’s
right to proceed collectively only if “the action relates to
specific circumstances personal to the plaintiff rather than any
generally applicable policy or practice.” Id. at 878. As mentioned
above, this determination is usually made based on the pleadings
and any affidavits that have been submitted. Mooney, 54 F.3d at
1214. In the Fifth Circuit, “there is no categorical rule that
Plaintiffs
must
submit
evidence
at
this
time
that
other
[individuals] seek to opt-in to this case.” Lopez v. Hal Collums
Constr., LLC, No. 15-4113, 2015 WL 7302243, at *6 (E.D. La. Nov.
18, 2015) (quoting Perkins v. Manson Gulf, L.L.C., No. 14-2199,
2015 WL 771531, at *4 (E.D. La. Feb. 23, 2015)). The notice stage
“requires the plaintiff to show, at least, that similarly situated
individuals exist.” Id. (quoting Banegas, 2015 WL 4730734, at *5).
Here, Plaintiff alleges that he normally worked more than
forty hours in a week but was never paid overtime wages. Further,
Plaintiff alleges that his coworkers also normally worked in excess
of
forty
hours
in
a
week.
Plaintiff’s
declaration,
which
is
attached to the instant motion, provides more detail regarding the
allegations in the Complaint, and Plaintiff states that at least
one of his coworkers did not receive overtime compensation. (Rec.
Doc. 10-3, at 2.) Although Defendants dispute whether Plaintiff
normally worked in excess of forty hours per week, they seem to
9
admit that Plaintiff has worked more than forty hours in a week on
at least two occasions and was paid at his regular hourly rate for
his overtime hours. There is no indication that this decision
“relates to specific circumstances personal to the plaintiff.”
Xavier, 585 F. Supp. 2d at 878.
Contrary to Defendants’ argument, the fact that Plaintiff
might have only worked 2.5 hours of unpaid overtime does not
preclude a collective action. In Anderson v. Mt. Clemens Pottery
Co., the Supreme Court held that when “the matter in issue concerns
only a few seconds or minutes of work beyond the scheduled working
hours, such trifles may be disregarded.” 328 U.S. 680, 692 (1946).
“The de minimis rule provides that an employer, in recording
working
time,
may
disregard
‘insubstantial
or
insignificant
periods of time beyond the scheduled working hours, which cannot
as a practical administrative matter be precisely recorded for
payroll purposes.’” Mireles v. Frio Foods, Inc., 899 F.2d 1407,
1414 (5th Cir. 1990) (quoting 29 C.F.R. § 785.47). The rule applies
only where the time involved is “of a few seconds or minutes [in]
duration” and where the failure to count such time is “due to
considerations justified by industrial realities.” 29 C.F.R. §
785.47. Defendants have not explicitly argued that the de minimis
rule applies, and the Court need not address the merits of a de
minimis
defense
during
the
notice
certification.
10
stage
of
conditional
Further, Defendants argue that Plaintiff is not covered by
the FLSA because Diversified is not an enterprise engaged in
interstate commerce. Courts in this district have conditionally
certified
collective
actions
despite
questions
about
the
employment status of the named plaintiff and the potential opt-in
plaintiffs. See, e.g., Prejean, 2013 WL 5960674, at *7-8; Lang v.
DirecTV, Inc., No. 10-1085, 2011 WL 6934607, at *3 (E.D. La. Dec.
30, 2011). The Court “need not decide at this juncture the exact
nature of the employment relationship here.” Lang, 2011 WL 6934607,
at *3.
As in other actions where threshold employment questions
existed, Plaintiff has alleged enough to satisfy the initial burden
at this stage. “The fact that questions remain about the employment
status
of
proposed
[the
class
considering
employer]
of
the
regarding
plaintiffs
propriety
will
of
the
not
named
stop
conditionally
plaintiffs
this
and
Court
from
certifying
the
collective action.” Id. “Although courts have later decertified
actions because of employment relationship questions, this does
not alter the present burden at the conditional certification stage
considered here.” Id. (emphasis added) (footnote omitted). Thus,
although
Defendants
have
raised
possibly
legitimate
questions
about the employment status of Plaintiff and the potential opt-in
plaintiffs,
such
an
inquiry
is
better
addressed
at
the
decertification stage after discovery has occurred, when the Court
11
will be in a position to scrutinize all of the evidence in greater
detail. See Prejean, 2013 WL 5960674, at *8.
In sum, the Court finds that the Complaint and Plaintiff’s
declaration set forth “substantial allegations that the putative
class members were together victims of a single decision, policy
or plan.” Mooney, 54 F.3d at 1214 n.8. The alleged policy of
failing to pay employees performing manual labor an overtime rate
for work performed in excess of forty hours in a week constitutes
a “factual nexus which binds the named plaintiffs and the potential
class
members
together.”
Xavier,
585
F.
Supp.
2d
at
877-78.
Accordingly, Plaintiff has satisfied his lenient burden of showing
that there is likely a class of “similarly situated” employees
entitled to receive notice. As discovery proceeds, Defendants may
move to decertify or modify the conditionally certified FLSA class
as defined if appropriate.
B.
Temporal Scope of Opt-In Class
Defendants conclude their opposition with a request that the
Court limit the temporal scope of the opt-in class receiving
notice. Plaintiff contends that the opt-in class should include
employees who did not receive overtime during the previous three
years. Defendants argue that this collective action should be
limited to the time period that Plaintiff was employed, February
2015 through July 2015. Defendants do not provide any rationale
for limiting the time span to Plaintiff’s period of employment.
12
Plaintiff chose the three-year period because it coincides
with
the
statute
of
limitations.
The
applicable
statute
of
limitations under the FLSA is set forth in 29 U.S.C. § 255. The
FLSA requires that the action be commenced within two years after
the cause of action accrued, except that a cause of action arising
out of a “willful” violation may be commenced within three years.
29 U.S.C. § 255. “Willful” means that “the employer either knew or
showed reckless disregard as to whether its conduct was prohibited
by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128,
133 (1988). “In a collective action, the action is ‘commenced’ in
the case of an opt-in plaintiff on the date a written consent is
filed.” Lima, 493 F. Supp. 2d at 803. Courts within the Fifth
Circuit have often held that, given the low standard employed at
the first stage of the Lusardi approach, and the fact-intensive
nature of the question of willful conduct, plaintiffs need not
prove
willfulness
at
the
notice
stage
of
conditional
certification. See, e.g., Marshall v. Louisiana, No. 15-1128, 2016
WL 279003, at *11 (E.D. La. Jan. 22, 2016). Because the Court finds
that additional discovery will likely reveal whether a three-year
statute
of
limitations
is
applicable,
the
Court
finds
that
conditional certification of a three-year class is appropriate at
this stage, subject to any motion for decertification following
discovery.
13
C.
Length of the Opt-In Period
Plaintiff requests an opt-in period of ninety days. Plaintiff
argues that a ninety-day period is reasonable because at least
some of Defendants’ past employees are non-English speaking and
oftentimes the addresses of non-English speaking laborers provided
by defendants in FLSA cases are outdated or inaccurate. Without
explanation,
Defendants
argue
that
a
ninety-day
period
is
excessive and argue instead for a period of forty-five days.
Longer
opt-in
periods
have
been
granted
in
cases
where
potential plaintiffs are hard to contact due to their migration or
dispersal. See Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp.
2d 234, 241 (N.D.N.Y. 2002) (allowing a nine-month opt-in period
because the potential plaintiffs were likely to have migrated to
other places within North America and other continents). The Court
finds that an opt-in period of ninety days is appropriate in this
case. See Lopez, 2015 WL 7302243, at *7; Lima, 493 F. Supp. 2d at
804. This period sufficiently affords the Plaintiff the time needed
to locate potential opt-in plaintiffs, but is not so unreasonable
as to be overly burdensome or excessive for the Defendants. The
opt-in period will begin to run on the date that Defendants provide
a complete list of the names, dates of employment, and last known
addresses of all potential opt-in plaintiffs.
14
D.
Proposed Notice
Section 216(b) imparts the district court with discretionary
authority to facilitate notice to potential plaintiffs. Lima, 493
F. Supp. 2d at 800 (citing Hoffmann-La Roche Inc. v. Sperling, 493
U.S. 165, 169 (1989)). When considering the content of the notice,
courts often find that these issues are best resolved by mutual
agreement of the parties. See, e.g., Banegas, 2015 WL 4730734, at
*6; Perkins, 2015 WL 771531, at *5. Plaintiff submitted a proposed
notice form along with the instant motion. (Rec. Doc. 10-5.) As
noted above, Defendants raised objections to the proposed notice
regarding the temporal scope of the opt-in class and the length of
the opt-in period. Defendants have not indicated that they have
any
other
concerns
with
the
proposed
notice.
nor
have
they
requested additional time to confer with Plaintiff and submit to
the Court a joint notice. Accordingly, the Court finds that the
proposed notice is acceptable for approval, as provided in this
Order.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Conditional
Class Certification, Judicial Notice, and for Disclosure of the
Names and Addresses of Potential Opt-In Plaintiffs (Rec. Doc. 10)
is GRANTED as set forth above, and that the above-captioned matter
15
is conditionally certified as a collective action pursuant to 29
U.S.C. § 216(b).
IT IS FURTHER ORDERED that Notice shall be sent to the
following:
“All
individuals
who
worked
or
are
working
for
Diversified Concrete, LLC, during the previous three years and who
are eligible for overtime pay pursuant to the Fair Labor Standards
Act, 29 U.S.C. § 207, and who did not receive full overtime
compensation.”
IT IS FURTHER ORDERED that Defendants shall have fourteen
(14) days from the entry of this Order to produce the full names,
dates of employment, and last known addresses of all potential
opt-in plaintiffs.
IT IS FURTHER ORDERED that the time period within which
potential opt-in plaintiffs may opt-in is ninety (90) days. The
ninety (90) day opt-in period will begin to run on the date that
Defendants
provide
a
complete
list
of
the
names,
dates
of
employment, and last known addresses of all potential opt-in
plaintiffs.
New Orleans, Louisiana, this 13th day of May, 2016.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
16
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