SAUNDERS et al v. GETCHELL AGENCY INC et al

Filing 52

ORDER granting 34 Motion to Conditionally Certify Class By JUDGE JOHN A. WOODCOCK, JR. (jgw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KRISTOPHER T. SAUNDERS, et al., )
)
Plaintiffs,
)
)
v.
)
)
THE GETCHELL AGENCY, et al.,
)
)
Defendants.
)

1:13-cv-00244-JAW

ORDER ON MOTION FOR CONDITIONAL CERTIFICATION
In this Fair Labor Standards Act and Maine wage and hour law case, the
named plaintiffs move for conditional certification of their FLSA claim as a
collective action. The Court grants the motion because the Plaintiffs have made a
sufficient factual showing that the named plaintiffs and other employees suffered
from a common unlawful plan.
I.

STATEMENT OF FACTS
A.

Procedural History

On July 7, 2013, Kristopher Saunders and Cory Scribner filed “an individual,
collective, and class action” against The Getchell Agency, Inc. and Rena Getchell.1
Compl. at 1 (ECF No. 1). In the latest Complaint,2 the proposed members of the

On February 11, 2014, the Court dismissed Mr. Saunders’ claims without prejudice. See
Order on Mot. to Dismiss at 19 (ECF No. 51). The dismissal did not impact the claims of the other
named and potential opt-in plaintiffs.
2
The Plaintiffs have twice amended their complaint without objection by the Defendants.
Mot. for Leave to File Second Am. Compl. and to Add Additional Parties Pl. with Incorporated Mem.
of Law (ECF No. 23); Resp. of Defs. to Second Mot. to Am. Compl. (ECF No. 29); Order (ECF No. 31);
Second Am. Collective and Class Action Compl. (ECF No. 32) (Second Am. Compl.). The Second
1

collective action are defined as “House Managers” employed by the Defendants as
caretakers of disabled individuals “who were paid on an hourly basis sometime
during the three years prior to the Complaint and who were required to be with
consumers Twenty-four (24) hours per day.” Second Am. Compl. ¶ 33. Individually
and on behalf of proposed members of the collective action, the Plaintiffs allege that
the Defendants were illegally denied overtime compensation under the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq.3 Id. at 2-15.
On September 26, 2013, the Plaintiffs moved to conditionally certify the
collective action. Pls.’ Mot. for Conditional Certification and Provision of Notice
Under 29 U.S.C. §216(b) and Mem. in Support Thereof (ECF No. 34) (Pl.’s Mot.).
The Defendants filed their opposition on October 17, 2013. Opp’n of Defs. to Pls.’
Mot. for Conditional Certification (ECF No. 41) (Defs.’ Opp’n). The Plaintiffs replied
on October 29, 2013. Pls.’ Reply to the Opp’n of Defs. to Pls.’ Mot. for Conditional
Certification (ECF No. 46) (Pls.’ Reply).
B.

The Parties’ Positions
1.

The Plaintiffs’ Motion

Amended Complaint includes four additional named plaintiffs: Jared Forrest, Taylor Perkins, Karey
Ann Sinclair, and Katelin Varney. Second Am. Compl. at 1. The remainder of this order references
only the Second Amended Complaint.
3
The Second Amended Complaint defines two proposed group classifications. The first—the
collective action class—is defined pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b), and
is the class at issue on this motion for conditional certification. Second Am. Compl. ¶ 33. The
second—the class action class—is defined pursuant to Rule 23 of the Federal Rules of Civil
Procedure, and alleges violations of Maine state minimum wage and overtime law, 26 M.R.S. §
664(3). Id. ¶ 44. The Rule 23 certification class, based on the state law claims, is not at issue on this
motion.

2

In their motion, the Plaintiffs define the similarly situated group for purposes
of the proposed FLSA collective action as the following: “Getchell employees, who
worked for The Getchell Agency, Inc., during the Fair Labor Standards Act statute
of limitations period of three years, who are all uniformly classified by Getchell as
House Managers.” Pls.’ Mot. at 5. The Plaintiffs note this group only includes
employees who worked around Bangor, Maine. Id.
a.

Statement of Facts

The Plaintiffs’ motion contains a Statement of Facts.4 Id. at 2-3. They assert
that the Second Amended Complaint “shows without any doubt” that the named
plaintiffs all work as House Managers, as defined by The Getchell Agency, and have
not been paid for hours worked between 10:00 p.m. and 6:00 a.m. Id. at 3. The
Plaintiffs maintain that during these unpaid hours, House Managers retain
“significant duties,” in particular retaining responsibility for dependent persons,
which requires them to remain on The Getchell Agency’s premises throughout the
night. Id. at 2-3. This obligation includes being required to sleep on couches and
share bedrooms with others—frequently with “another worker of the opposite sex
with whom they are not familiar.” Id. Finally, the Plaintiffs claim they have made
no agreement to exclude work during these hours from compensation. Id.

In their motion, the Plaintiffs did not provide a citation for the facts in this paragraph. Pls.’
Mot. at 2-3. However, all of the statements asserted in the Statement of Facts are also made in the
Second Amended Complaint. See Second Am. Compl. ¶¶ 29-42. As facts alleged in the pleadings are
properly considered on this motion, the Court considers the facts set out in the Statement of Facts.
See Prescott v. Prudential Ins. Co., 729 F. Supp. 2d 357, 364 (D. Me. 2010) (stating that a motion for
conditional certification is determined “based solely on the pleadings and any affidavits which have
been submitted”) (quoting Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)).
4

3

The Plaintiffs also assert that their attached affidavits demonstrate the
existence of potential opt-in parties with similar claims. Id. at 3 (citing id. Attach 1
Decl. of Roy M. Smith (Roy Smith Aff.); id. Attach 2 Decl. of Jason A. Buck; id.
Attach 3 Decl. of Chelsie Smith (ECF No. 34)).
b.

Argument

The Plaintiffs seek conditional certification of a collective action pursuant to
29 U.S.C. §216(b). Pls.’ Mot. at 3. The Plaintiffs offer that at this stage—the first in
a two-stage process, usually decided early in a case before discovery has taken
place—the Court “decides only whether there appears to be a group of similarly
situated putative class members for whom it is appropriate to give notice of their
right to opt-in to the action.” Id. at 3-4 (citing Prescott v. Prudential Ins. Co., 729 F.
Supp. 2d 357 (D. Me. 2010)). The Plaintiffs urge the Court to decide their motion
using a “fairly lenient test” that places the burden on the Plaintiffs to make a
“modest factual showing that [they] and other employees with similar, but not
necessarily identical jobs, suffered from a common . . . policy or plan.” Id. at 4
(quoting Prescott, 729 F. Supp. 2d at 357). The Plaintiffs note the second stage of
certification typically takes place after discovery, when the case has become more
defined; the Court determines whether to permit the collective action to proceed or
to decertify it at that stage. Id. (citing Sandoz v. Cingular Wireless, 553 F.3d 913,
915 n.2 (5th Cir. 2008).
With this backdrop, the Plaintiffs first argue that House Managers described
above are “a clearly defined group of similarly situated Getchell employees” who

4

work in the Bangor area.

Id. at 5.

Next, they argue the “overarching legal

question” for all House Managers will be the same: “[B]etween the hours of 10:00
p.m. and 6:00 a.m. did they not have private quarters in a homelike environment for
sleeping purposes” and “did they make binding reasonable agreements not to be
compensated for such hours?” Id. Given this characterization of the issues, the
Plaintiffs insist that “[u]nlike many cases, this is not a situation where because of
many different locations and many different job titles, the plaintiffs cannot make an
initial superficial showing of being ‘similarly situated.’” Id. Instead, “all of the
named, opt-in, and potential collective action class members have the same job –
House Managers caring for disabled persons in Bangor, Maine,” which the Plaintiffs
maintain suffices to meet “the lenient standards for conditional certification.” Id. at
5-6.
Finally, the Plaintiffs state “[t]he Court should review and approve an
appropriate notice to potential plaintiffs ensuring that the notice is not an
endorsement of any action and that the notice is fair and factual in all respects.” Id.
at 6. The Plaintiffs provided a draft notice and opt-in form for Court review and
approval. Id. Attach 4 Notice of Pendency of FLSA Collective Lawsuit (Notice of
Pendency); id. Attach 5 Opt-in Consent Form (Consent Form) (ECF No. 34). They
state that the general rule, which would enable the Plaintiffs to promptly send out
such 216(b) notice, is that a court should require defendants to “identify all
potential opt-in plaintiffs in a computer readable data file.” Id. at 6-7 (quoting In re

5

Penthouse Executive Club Comp. Litig., No. 10 Civ. 1145 (NRB), 2010 U.S. Dist.
LEXIS 114743, at *17-20 (S.D.N.Y. Oct. 27, 2010)).
2.

The Defendants’ Opposition

In response, the Defendants assert that the Plaintiffs’ claims are “intensively
individual and fact-dependent” and are not suitable to be decided as part of a
collective action. Defs.’ Opp’n at 1. While acknowledging that the Plaintiffs’ burden
has been characterized by courts as “‘not particularly stringent’ and ‘fairly lenient,’”
id. at 2 (quoting Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th
Cir. 2011)), the Defendants maintain that this burden “cannot be satisfied simply by
unsupported assertions.” Id. at 2 (quoting Myers v. Hertz Corp., 624 F.3d 537, 555
(7th Cir. 2010)). The Defendants submit that the reason opt-in plaintiffs must be
“similarly situated” is to demonstrate that certification “is likely to provide more
orderly and sensible case management than separate adjudication”; by contrast,
certification should be denied where “individual factual inquiries are likely to
predominate and judicial economy will be hindered rather than promoted by
certification.”

Id. (quoting MacGregor v. Farmers Ins. Exchange, No. 2:11-CV-

03088, 2011 U.S. Dist. LEXIS 80361, at *7-14 (D.S.C. July 22, 2011)).

The

Defendants suggest that conditional certification has largely been denied when the
core issue involves “allegations of ‘off the clock’ violations.”

Id. at 3 (collecting

cases).
Turning to this case, the Defendants argue the core issue is whether each
potential plaintiff’s sleep time was compensable and that individual factual

6

inquiries are crucial to that determination. Id. at 4-14. They contend that liability
turns on “an assessment of all the circumstances concerning a given employee’s
situation,” id. at 6, and point to the following Interpretative Guidance from the
Department of Labor:
Where an employee is required to be on duty for 24 hours or more, the
employer and the employee may agree to exclude bona fide meal
periods and a bona fide regularly scheduled sleeping period of not more
than 8 hours from hours worked, provided adequate sleeping facilities
are furnished by the employer and the employee can usually enjoy an
uninterrupted night's sleep. If sleeping period is of more than 8 hours,
only 8 hours will be credited. Where no expressed or implied
agreement to the contrary is present, the 8 hours of sleeping time and
lunch periods constitute hours worked.
Id. at 4 (quoting 29 C.F.R. 785.22(a)).

Expanding upon this administrative

guidance, the Defendants cite Sidell v. Residential CRF, Inc., No. 1:08-cv-1699DML, 2010 U.S. Dist. LEXIS 121635 (S.D. Ind. Nov. 12, 2010), for the proposition
that “an implied agreement to deduct sleep time from an employee’s compensation
clearly exists if an affected employee does not assert any verbal or written protest to
the arrangement within a reasonable period of time of adoption of the policy.” Defs.’
Opp’n at 4 (quoting Sidell, 2010 U.S. Dist. LEXIS 121635, at *16). Under Sidell, in
the case of an employee who protests such a policy but continues to work, such
continued employment is “evidence—but not necessarily conclusive—of her implied
consent to its terms.” Id. (quoting Sidell, 2010 U.S. Dist. LEXIS 121635, at *17).
Based on this authority, the Defendants contend that all potential plaintiffs’ claims
should not be adjudicated in a collective action because the Court will be required to

7

make an individualized determination as to whether each individual plaintiff had
an express or implied agreement with the Defendants. Def.’s Opp’n at 4-5.
Further, the Defendants allege that the phrase “adequate sleeping facilities”
itself requires an individualized, fact-intensive inquiry, “not susceptible to efficient
case management through collective action procedures.” Id. at 5. They also put
forth Interpretive Guidance stating that when an employee resides on an employer’s
premises for an “extended period of time,” the entire time spent on the employer’s
premises is not considered working time.

Id. (citing 29 C.F.R. § 785.23).

Yet

another problem with conditional certification, according to the Defendants, is that
the FLSA companionship exception might be applicable for some individual
plaintiffs.

Id. at 10.

This provision exempts from overtime requirements “an

employee employed in domestic service employment to provide companionship
services for individuals who (because of age or infirmity) are unable to care for
themselves.” Id. (quoting 29 C.F.R. § 213(a)(15)). The Defendants maintain that
the Court will be required to make an individualized fact-specific determination on
the FLSA companionship exception. Id. at 10.
The Defendants provide examples of the diversity in work schedules, sleeping
arrangements, and compensation agreements among House Managers. See id. at 79. Reiterating that application of the law in this case will turn on individualized,
fact-sensitive inquiries for each plaintiff, they again argue “Plaintiffs’ claims cannot
be efficiently or practically adjudicated through a collective action.” Id. at 9.

8

The Defendants conclude that the Plaintiffs have not made a sufficient
showing that there was a “common unlawful policy or plan.” Id. at 11-14. The
Defendants assert that not all of the hours at issue (10:00 p.m. to 6:00 a.m.) may be
considered hours worked. Id. at 10-12.

The Defendants also contend that the

Plaintiffs have relied only on a 1988 Department of Labor Enforcement Policy
Letter for the proposition that the FLSA requires House Managers be given “private
quarters in a homelike environment.” Id. at 11-12. Finally, the Defendants argue
that the Plaintiffs have not made the “modest factual showing” that they suffered
under a common unlawful policy or plan, because the Plaintiffs’ “evidence does not
suggest that a collective action would involve anything other than inquiries into
independent decisions regarding each plaintiffs’ . . . hours and individual
circumstances.” Id. at 13-14 (internal punctuation omitted).
3.

The Plaintiffs’ Reply

In reply, the Plaintiffs suggest “there is a great deal of agreement” as to the
relevant question on this motion, which they frame as “does there exist a group of
similarly situated persons who were subject to the same policies and that might
participate in this case so that it seems appropriate to notify them?” Pls.’ Reply at
1.

They assert that “an examination of the two pleadings” demonstrates that

several facts common to the putative class and several common legal issues exist,
including:
(1) that the defendants employ House Managers who work 24 hour
shifts;

9

(2) that the House Managers work “mostly” in single family structures
owned by The Getchell Agency in one Bangor neighborhood;
(3) that the Plaintiffs are not paid for the eight hours worked between
10:00 p.m. and 6:00 a.m.;
(4) that House Managers are not regularly paid for the evening and
nighttime unless something unusual happens and they report it;
(5) that thirty-eight opt-in requests have been filed;
(6) that the legal issue in this case is “[t]he extent of the privacy of the
sleeping quarters due to the plaintiffs”; and
(7) that a Department of Labor advice letter, 29 C.F.R. § 785.23, allows
for up to eight hours of sleeping time to be excluded from compensable
time only if the sleeping facilities are “adequate.”
Id. at 1-2.
The Plaintiffs next argue that disagreement between the parties on two legal
issues demonstrates that there are similarly situated class members in this case.
Id. at 2. First, Plaintiffs “claim that the mandate under 29 C.F.R. § 785.23 is to
count all hours where the employee is at work as ‘hours worked’ unless there exists
a ‘reasonable agreement of the parties which takes into consideration all of the
pertinent facts,’” while the Defendants “argue that an ‘agreement’ of the parties is
not required in order . . . to exclude certain hours from ‘hours worked.’” Id. (quoting
Defs.’ Opp’n at 6). Second, the Plaintiffs maintain that no agreement to exempt
compensation for all hours worked may be made where, as here, the workers “must

10

sleep on a couch or lack privacy,” while the Defendants “imply that the parties can
make whatever agreement they want.”

Id.

Out of these disagreements, the

Plaintiffs insist that “[t]he conclusion must be . . . that the plaintiffs are similarly
situated with respect to issues that are raised by the employer’s policies, policies
that are applicable to all House Managers.” Id. at 2-3.
Finally, the Plaintiffs dispute the Defendants’ assertion that “off-the-clock”
disputes are not appropriate for collective action, stating that First Circuit law is
otherwise. Id. at 3 (citing Manning v. Boston Medical Ctr. Corp., 725 F.3d 34 (1st
Cir. 2013)).

The Plaintiffs further reiterate that this motion only addresses

conditional certification, that the Defendants will have “ample opportunity” to later
demonstrate that the plaintiffs are not similarly situated, and that the Court will
have “many tools at its disposal” to address the contours of a putative class at this
later time. Id.
II.

DISCUSSION
A.

FLSA Conditional Certification
1.

Legal Standard

The FLSA requires employers to pay employees overtime wages for hours
worked in excess of forty hours per week, unless an exception applies. 29 U.S.C. §§
207(a)(1), 213. An employer who violates the overtime provisions of the FLSA is
liable to the employees affected, who may bring a private right of action either
individually or as part of a collective action on behalf of “themselves and other

11

employees similarly situated.”5 29 U.S.C. § 216(b); Prescott, 729 F. Supp. 2d at 362.
An action does not become a collective action, however, “unless other plaintiffs
affirmatively opt into the class by giving written and filed consent, and the trial
court certifies that such opt-in plaintiffs are in fact similarly situated and that the
collective action is procedurally manageable and fair.” Prescott, 729 F. Supp. 2d at
362 (internal quotations and citations omitted).
Neither the Supreme Court nor the First Circuit has directly addressed what
qualifies as similarly situated,6 but district courts—including this Court—have
adopted a two-tiered approach to the certification of collective actions under the

An action to enforce the overtime provisions of the FLSA has a two year statute of
limitations period, “except that a cause of action arising out of a willful violation may be commenced
within three years after the cause of action accrued.” 29 U.S.C. § 255(a). The Plaintiffs state that
the statute of limitations period for their FLSA claim is three years and the Defendants do not claim
otherwise. Additionally, the facts in this motion do not allow the Court to determine whether the
three-year statute of limitations period applies at this stage. See Reich v. Newspapers of New
England, Inc., 44 F.3d 1060, 1079 (1st Cir. 1995) (“FLSA violations are willful where the employer
‘knew or showed reckless disregard for the matter of whether its conduct was prohibited by the
statute’”) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)). The Court assumes
the three-year period applies for the purposes of this motion. See Prescott, 729 F. Supp. 2d at 370
(concluding that “[w]illfulness is a question going to the merits of the case that I do not decide at this
time. At this stage . . . , justice is best served by notice reaching the largest number of potential
plaintiffs . . . .”); see also Albanil v. Coast 2 Coast, Inc., Civil Action No. H-08-486, 2008 U.S. Dist.
LEXIS 93035, at *18 (S.D. Tex. Nov. 17, 2008) (“[N]otice is proper for potential class members
employed by the defendant within the full three-year period; holding otherwise would require the
plaintiff to prove willfulness without the benefit of full discovery”).
6
The First Circuit recently addressed conditional certification of a FLSA collective action in
Manning v. Boston Medical Ctr. Corp., 725 F.3d 34, 58-59 (1st Cir. 2013). However, the Manning
Court also dealt jointly with a class action under Federal Rule of Civil Procedure 23, and proceeded
to state that “[a]lthough Rule 23 and the FLSA impose different certification requirements, the
district court used the same reasoning to strike both sets of allegations, and the parties by and large
do not distinguish between the two regimes. We consequently assume that the same analysis
applies to both.” Id. at 58. The First Circuit also stated that “[a]lthough we treat class and collective
requirements as the same for the purposes of this appeal, we do not suggest that this conflation is
appropriate in all circumstances.” Id. at 58 n.15. In other words, the Manning Court did not directly
address the FLSA collective action standard for “similarly situated.” It did, however, use language
indicating approval of the conditional certification stage generally. E.g., id. at 60 (“[T]he trial court
would have been well within its discretion to defer ruling on the conditional certification request
until a later stage of the case”).
5

12

FLSA. Johnson v. VCG Holding Corp., 802 F. Supp. 2d 227, 233 and n.5 (D. Me.
2011) (collecting cases); Prescott, 729 F. Supp. 2d at 362-63.

The first stage

“determines whether notice should be given to potential collective action members
and usually occurs early in a case, before substantial discovery, ‘based only on the
pleadings and any affidavits which have been submitted.’” Prescott, 729 F. Supp. 2d
at 363-64 (quoting Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir.
2001)). The second stage takes the form of a motion to decertify after discovery has
been completed, at which time the court must “make a factual determination as to
whether there are similarly-situated employees who have opted in.”

Id. at 365

(quoting Sandoz, 553 F.3d at 916 n.2).
The parties agree that this motion deals with “conditional certification,” or
the first stage.

At this stage, the Plaintiffs have “the burden of showing a

reasonable basis for their claim that there are other similarly situated employees.”
Id. at 364 (quoting Morgan, 551 F.3d at 1260). The reasonable basis for their claim
is also referred to as “a modest factual showing” that both the Plaintiffs “and other
employees, with similar but not necessarily identical jobs, suffered from a common
unlawful plan.” Johnson, 802 F. Supp. 2d at 234 (quoting Prescott, 729 F. Supp. 2d
at 364).

The standard has also been called “‘not particularly stringent,’ ‘fairly

lenient,’ flexible,’ ‘not heavy,’ and ‘less stringent than for joinder under Rule 20(a) or
for separate trials under 42(b).’”

Id. at 234 (citation omitted) (adopting “fairly

lenient standard”); Prescott, 729 F. Supp. 2d at 364 (same).
2.

Similarly Situated Employees

13

The Plaintiffs need only make a modest factual showing that the named
plaintiffs and other employees with similar jobs suffered from a common unlawful
plan, and they have made such a showing here. The Second Amended Complaint
asserts that all named plaintiffs were, at different periods within the statute of
limitations, required to sleep on a couch between the hours of 10:00 p.m. and 6:00
a.m., or share a bedroom with another employee, and each was required to remain
on the employer’s premises and care for dependent persons during this time.
Second Am. Compl. ¶¶ 12 – 17. These work conditions occurred during workweeks
in which all plaintiffs always worked more than forty hours, even before counting
their work between 10:00 p.m. and 6:00 a.m.

Id. ¶ 21.

The Second Amended

Complaint also alleges that “[t]he parties made no agreement to exclude work
performed during hours 10:00 [p.m.] to 6:00 [a.m.] from hours to be compensated.”
Id. ¶ 26. The sworn affidavits of three potential opt-in plaintiffs make the same
assertions. See, e.g., Roy Smith Aff. ¶ 9 (“I was not paid for the hours from 10:00
p.m. to 6:00 a.m., even though I was required to deal with emergencies and to arise
from my sleep occasionally and to attend the disabled person when necessary”).
The Plaintiffs’ motion makes clear that these facts relate to a group of employees
with similar—if not identical—job responsibilities: employees of The Getchell
Agency, Inc., who work as House Managers in the Bangor area.
While the Defendants admit this is a fairly lenient burden, they quote Myers
v. Hertz Corp., 624 F.3d 537 (7th Cir. 2010), for the proposition that this burden
“cannot be satisfied simply by unsupported assertions.” Id. at 555. In Meyers, the

14

Eleventh Circuit noted that unsupported assertions are insufficient, but pointed out
the burden “should remain a low standard of proof because the purpose of the first
stage is merely to determine whether ‘similarly situated’ plaintiffs do in fact exist.”
Id. (emphasis in original). The low standard of proof defines this stage, and the
Plaintiffs have carried their light burden. The core of the Defendants’ argument
against certification is that “evidence that an employee is not paid for eight hours of
sleep time does not establish a per se violation of the FLSA.” Defs.’ Opp’n at 6. The
Court agrees with this legal proposition; under the FLSA, an implied agreement to
deduct sleeping time may be recognized, certain hours may be exempt from
compensable time when an employee resides on the premises for an “extended
period of time,” and a companionship exception may exempt certain individuals
from the overtime provisions of 29 U.S.C. 207(a)(1). Further, the Defendants have
supported their arguments with facts suggesting that some of these legal issues
may be relevant in this case. See, e.g., Defs.’ Opp’n at 8-9.
But the Court does not agree that the Defendants’ characterization of the
Plaintiffs’ evidentiary burden supports a denial of the Plaintiffs’ request for
conditional certification. The “modest showing” required at this stage is a factual
showing, and the Plaintiffs have set forth sufficient facts to make a showing that
there are similarly situated employees of The Getchell Agency (House Managers)
who suffered from a common illegal practice—the nonpayment of overtime
compensation under 29 U.S.C. §§ 207(a)(1) and 216. Based on the current record,
without having provided the Plaintiffs and opt-in plaintiffs a chance for discovery,

15

“a conclusive determination that the exemption applies, or does not, would be
premature.” Albanil v. Coast 2 Coast, Inc., No. H-08-486, 2008 U.S. Dist. LEXIS
93035, at *24-25 (S.D. Tex. Nov. 17, 2008). As Judge Hornby has noted, under this
standard “the initial stage analysis typically results in conditional certification of a
collective action.” Prescott, 720 F. Supp. 2d at 364.
The reasoning behind this light burden is, in part, that “[t]he prejudice to
[the Plaintiffs] of skipping the notice stage could be significant, while the prejudice
to [the Defendants] is minimal since [they] are able to move for decertification at
the close of discovery.” Id. at 366. In fact, although the Defendants cite Threatt v.
CRF First Choice, Inc., No. 1:05cv117, 2006 U.S. Dist. LEXIS 50934, at *45 (N.D.
Ind. July 21, 2006)), the case actually supports conditional certification at this
stage.

In Threatt, the district court was dealing with the second phase of the

process—the decertification stage. Id. at *45-46.

The district judge observed that

the “further discovery and analysis that would be required . . . renders a collective
action completely unworkable.” Id. at *45. Indeed, the Threatt Court granted a
motion for conditional certification before it denied the certification at the second
stage. Id. at *6. Once the Court conditionally certifies this case, the Defendants
will have the opportunity to engage in discovery and to file, if appropriate, a motion
to decertify. Any prejudice to a defendant by certification is taken into account
more concretely at the motion for decertification stage, after a court has approved
conditional certification and allowed discovery to take place.

16

The Plaintiffs have made a sufficient factual showing that the House
Managers, as defined by the Plaintiffs, are a similarly situated group of employees
and, as alleged by the Plaintiffs, have suffered from a common unlawful plan. The
Court concludes that conditional certification is appropriate.
B.

Current Opt-in Plaintiffs

In their reply, the Plaintiffs state that thirty-eight opt-in requests have been
filed. Pls.’ Reply at 2; see, e.g., Pl.’s Notice of Consent Filing (filing opt-in plaintiff
consents for twenty-two persons) (ECF No. 12). Two additional consents have been
submitted since the filing of the reply. See Pl.’s Notice of Consent Filing (ECF No.
47); Pl.’s Notice of Consent Filing (ECF No. 48). By filing their opt-in requests,
those individuals tolled the statute of limitations period on their claim, 29 U.S.C. §§
256-57, and with this conditional certification, the opt-in parties automatically
become plaintiffs.

Prescott, 729 F. Supp. 2d at 370.

If the collective action is

decertified at the next stage, the opt-in plaintiffs’ claims will be dismissed without
prejudice. Id. (citing Hipp, 252 F.3d at 1218).
C.

Court-Ordered Notice

Although the FLSA does not expressly provide for court-ordered notice of a
pending collective action, the Supreme Court has held that “district courts have
discretion . . . to implement 29 U.S.C. 216(b) . . . by facilitating notice to potential
plaintiffs.” Prescott, 729 F. Supp. 2d at 362-63 (quoting Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 169 (1989)); Johnson, 802 F. Supp. 2d at 233. The Plaintiffs
request that the Court review and approve their proposed notice and opt-in forms
informing potential plaintiffs of their rights, as part of the Court’s “managerial
17

responsibility to oversee the joinder of additional parties to ensure that the task is
accomplished in an efficient and proper way.” Pls.’ Mot. at 6 (quoting Sperling, 493
U.S. at 170-71); see Notice of Pendency at 1-3; Consent Form at 1. The Plaintiffs
also argue that the Court should order the Defendants to make available the names
and last known addresses of all potential opt-in class members, and assert that they
would safeguard such information. Id. at 6-7 (citing In re Penthouse, 2010 U.S.
Dist. LEXIS 114743, at *18).
The Defendants have not addressed these issues, and the Court concludes
they have waived any arguments against the Plaintiffs’ request. However, under
the guidance provided in Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. at 170-71,
the Court reviewed the notice forms to ensure that they are “not an endorsement of
any action and that the notice is fair and factual in all respects.” Pls.’ Mot. at 6; see
generally Sperling, 493 U.S. at 174 (“In exercising the discretionary authority to
oversee the notice-giving process, courts must be scrupulous to respect judicial
neutrality. To that end, trial courts must take care to avoid even the appearance of
judicial endorsement of the merits of the action”).

The Court finds that the

Plaintiffs’ proposed notice and opt-in consent forms are appropriate,7 and the
Plaintiffs are authorized to distribute those forms to members of the proposed class.

7

Paragraph 5 of the notice form states:
5.
THE COURT EXPRESSES NO OPINION ON THE MERITS OF THIS
LAWSUIT
Although the court has approved the sending of this notice, is [sic] expresses no
opinion on the merits of this lawsuit. The Court has not determined that The
Getchell Agency, Inc., or Rena Getchell have failed to comply with the Fair Labor

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The Court also directs the Defendants to identify by March 5, 2014, in a
computer readable data file, information relating to all Getchell employees who
worked for The Getchell Agency and were uniformly classified by Getchell as House
Managers during the Fair Labor Standards Act statute of limitations period of three
years.

This information must include all potential opt-in plaintiffs’ names, last

known mailing addresses, and dates of employment.8 Further, the Plaintiffs must
properly safeguard the information provided by Defendants and the Court directs
the parties to enter into a confidentiality agreement no later than February 26,
2014. See In re Penthouse, 2010 U.S. Dist. LEXIS 114743, at *20.

Standards Act. There is no money currently available from this lawsuit to plaintiffs
(or to persons receiving this notice) and there is no guarantee that the plaintiffs (or
the person receiving this notice) will recover any money by joining this lawsuit.
Notice of Pendency at 3.
8
Whether the Plaintiffs are requesting more information than what the Court is authorizing
is not clear. The header of the relevant section of the Plaintiffs’ motion states “The Court Should . . .
Order the Defendants to Make Available the Names and Last Known Addresses of All of the
Putative Class Members.” Pls.’ Mot. at 6. In the text of the motion, the Plaintiffs do not specifically
request particular categories of information but state “the general rule is that the court should
require The Getchell Agency, Inc., to ‘identify all potential opt-in plaintiffs in a computer readable
data file, including their names, last known addresses, last known telephone numbers, social
security numbers, and dates of employment.’” Id. at 6-7 (quoting In re Penthouse, 2010 U.S. Dist.
LEXIS 114743, at *18). The quotation from In re Penthouse provides that court’s summary of the
plaintiff’s requested relief, and does not support the proposition that all the listed types of
information are provided as part of a general rule. In re Penthouse, 2010 U.S. Dist. LEXIS 114743,
at *18-20. Instead, the Penthouse Court expressed concerns that disclosure of social security
numbers raised privacy concerns and declined to order disclosure of that information but ordered
disclosure of the balance of the information. Id. Since the Plaintiffs have not alerted the Court to a
particular need for the information beyond notifying potential plaintiffs, the Court orders the
Defendants to produce information limited to the Plaintiffs’ purpose. If the Plaintiffs seek additional
information, they should confer with defense counsel to seek mutual agreement before asking for
further relief from the Court. In any case, the Court will not order the Defendants to turn over
additional types of information (such as telephone numbers, email addresses, or social security
numbers) in this Order.

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III.

CONCLUSION
The Court GRANTS the Plaintiffs’ Motion for Conditional Certification and

Provision of Notice Under 29 U.S.C. §216(b) (ECF No. 34). The Court approves the
notice and opt-in form submitted by the Plaintiffs as an appropriate means of
contacting putative class members.
The Defendants are ORDERED to produce to the Plaintiffs by March 5, 2014,
in a computer readable data file, all potential opt-in plaintiffs’ names, last known
mailing addresses, and dates of employment, as set forth above.

The Plaintiffs

must safeguard this information and should enter into a confidentiality agreement
with the Defendants no later than February 26, 2014.
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 12th day of February, 2014

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