Flores et al v. Unity Disposal & Recycling, LLC

Filing 18

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 4/2/2015. (kns, Deputy Clerk)

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-,FIlED

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Lrow

ENlfRED

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~I£CEIVED

APR - 2 2015
IN THE UNITED STATES J)JSTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOllthem

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AT &REENaEl T
ClDKU.s. DlITlICT COURT
D1STlIICT OF MlRYlANo
DEPlJTY

Dh'i.\'ioll

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SANTOS FLORES,

ET AL.,

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Plaintiffs,

UNITY DISPOSAL

& RECYCLING,

LLC,

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Defendant.

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Case No.: G.JH-15-196

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Y.

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MEMORANDUM

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OPINION

Santos Flores. Francisco Fuentes. Jose Novoa. Anthony Taylor. Juan Olivarcs. and
Damion West ("Plaintiffs").

on behalfofthemsclves

and thosc similarly situated. have sued thcir

current or former employer. Dcfendant Unity Disposal and Recycling. LLC ("Unity Disposal").
alleging violations of the Fair Labor Standards Act ("FLSA"). 29 U.S.c. ~ 201e/ seq .. and the
Maryland Wage Payment and Collection Law. Md.Code Ann .. Lab & Emp!. ~~ 3-401 el seq .. 350 I e/ seq. Pcnding before the Court is Plaintiffs' motion for conditional certification and courlfacilitated notice to potential collectivc action membcrs undcr 29 U.s.c.

~ 216(b). A hcaring is

not necessary. See Loc. R. 105.6 (Md.). For the following rcasons. Plaintiffs' motion will be
GRANTED.
I.

BACKGROUND
Unity Disposal is a waste managcment company that contracts with homeowner

associations and municipalities.

r..---

including Howard and Montgomery County. to providc

residential trash. yard waste and recycling piCKUp.See ECF No. I at ~ II. Plaintiffs and all
similarly situated employees they secK to reprcscnt are currcnt and fonner sanitation worKcrs

employed by Unity Disposal. Unity Disposal employs two eategories of sanitation worker
employees: drivers and helpers. See id. at ~ 23. Drivers are responsible lor driving their assigned
refuse truck along their designated collection route in a safe manner. See id. at ~ 30. Helpers. on
the other hand. ride on the back of the refuse trucks and are responsible for collecting and
depositing trash. recyclables or yard waste into their assigned trucks along designated collection
routes. See it!. at ~ 3 I.
Helpers and drivers typically work five shins a week (Monday through Friday). usually
8- I0 hours per day. See it!. at ~ 23. Trash collecting work is generally performed between 7 a.m.
and 9 p.m. See it!. Unity Disposal assigns specific routes to drivers and helpers. who work in
teams to perform the trash collection work. See it!. at ~ 24. Unity Disposal dispatches the trash
trucks for all routes from its headquarters located in Laurel. Maryland. and all sanitation workers
are required to return the trucks to the headquarters when they have completed their routes. See

it!. For their work. Unity Disposal paid its sanitation workers a flat daily rate regardless of the
amount of hours worked in a shin to finish the assigned routes. See it!. at

'Ii 25.

During the

proposed class period. drivers were generally paid a daily rate 01'$ I30 and helpers were
generally paid a daily rate of either $100 or $84. See id. Plaintifls allege that by paying them a
daily flat rate. without regard to the number of hours actually worked. Unity Disposal did not pay
Plaintifls in accordance with federal and local wage and hour laws. See id. at

'139.

Additionally. although Unity Disposal did not schedule meal breaks lor its sanitation
workers or require its sanitation workers to take such a break. Plaintifls contend that Unity
Disposal maintained a company-wide
for unpaid meal breaks. See it!. at

policy of deducting thirty minutes of time from every shin

'Ii 34.

According to PlaintiffS. this 30 minute break was

deducted regardless of whether the employees actually took a meal break. See ECF No. 4-7 at ~~

2

17.20.21;

see also ECF No. 4-9 at

'i~
15.

18. 19. In fact. PlaintilTs maintain that they do not

evcn take 30-minute meal breaks. See ECF No. 4-7 at ~17; see also ECF No. 4-9 at ~15.lnstcad.
Plaintiffs contend that they eat while driving or refueling. or otherwise wait until the end of their
shifts. See ECF No. 4-7 at ~17; see ECF No. 4-13 at ~ 16. Plaintiff,'

allcge that by automatically

dcducting this time from their timesheets. Unity Disposal further violated federal and local wage
and hour laws.
Accordingly.

Plaintiffs filed this instant collective action seeking on behalfofthemselves

and other similarly situated helpers and drivers to recover unpaid wagcs. As is rcquired for
collectivc actions. Plaintiffs have filed a motion for conditional certification of the collective
action and for court-facilitated

notice to potcntial collective action members. See ECF NO.4.

Unity Disposal has opposed this motion . .'Icc ECF No. 15. For the reasons stated more fully
below. the Court will grant Plaintiffs' motion.
II.

DISCUSSION
"Under the FLSA. plaintiffs may maintain a collective action against their employer for

violations under the act pursuant to 29 U .S.c. ~ 216(b ):. Quinteros

1'.

5jwrkle Cleaning. Inc..

532 F.Supp .2d 762. 771 (D. Md. 2008). Section 216(b) provides. in relevant parI. as tallows:
An action ... may be maintained against any employer ... in any
Federal or State court of competent jurisdiction by anyone or more
employees for and in behalf of himself or themselves and other
employecs similarly situated. No employee shall be a party
plaintiff to any such action unless he givcs his consent in writing to
become such a party and such consent is filed in the court in which
such action is brought.
29 U.S.c. ~ 216(b). "This provision establishes an 'opt-in' scheme. whereby potential plaintiffs
must affirmatively

notify the court of their intentions to be a party to the suit:' Quill/eros. 532

F.Supp.2d at 771 (citing Calliper

1'.

HOlllc Quality MglII/.. Inc .. 200 F.R.D. 516. 519 (D. Md.

2000)).

3

When deciding whether to certify a collective action pursuant to the FLSA. courts
generally follow a two-stage process. See Sy,ja v. We.Hal. IlIc.. 756 F.Supp.2d 682. 686 (D. Md.
20 I0). In the first stage. commonly referred to as the notice stage. the Court makes a ..threshold
determination

of'whether

'similarly situated:

the plaintiffs have demonstrated

such that court-facilitated

that potential class members are

notice to the putative class members would be

appropriate .... Id. (quoting Calliper. 200 F.R.D. at 519). In the second stage. following the close
of discovcry. the Court conducts a "more stringent inquiry" to determinc whether the plaintiffs
are in fact "similarly situated," as required by Section 216(b). See Rawls \'. AlIgllslille HOllie
Heallh Care. IlIc.• 244 F.R.D. 298. 300 (D. Md. 2007). At this later stage. rcfcrred to as the
decertification

stage. the Court makes a final decision about the propriety of proceeding as a

collective action. See Sy'ja. 756 F.Supp.2d at 686. Ilere. PlaintifTs have moved j()r conditional
certification of a collective action. and. if granted. have requested court-facilitated

notice to

potential opt-in plaintiffs.
A.

Conditional Certificatioo

"Determinations

of the appropriatencss

arc leli to the court's discretion:'

of conditional collective action ccrtification ...

Id.: see also Hoffillanll-La Roche. Ille. \'. Sperling. 493 U.S.

165. 169 (1989). The threshold issue in determining whether to exercise such discretion is
whether PlaintifTs have demonstrated

that potential opt-in plaintiffs arc "similarly situatcd:'

Calliper. 200 F.R.D. at 519 (qllolillg 29 U.s.c.

~ 216(b». '''Similarly

.identical. ..• BOlllhller \'. Clevelalld COlISlr.. IlIc.. No. 11.0244.2012
Mar. 5. 2012) (eilillg HipI'

I'.

situated' [does] not mean
WL 738578. at *4 (D. Md.

Liberly Nal '1 Life IllS. Co .. 252 F.3d 1208. 1217 (I Ith Cir. 200 I)).

Rather. a group of potential FLSA plaintiffs is "similarly situated" ifits members can
demonstrate that they were victims ofa common policy. scheme. or plan that violated the law.

4

SeeMallcia\

.. MayflowerrexlileSen.s.Co

.. No.08-0273.2008WL4735344.at*3(D.Md.

Oct.14. 2008); see also Qllimeros. 532 F.Supp.2d at 772. To satisfy this standard. Plaintiffs
generally need only make a "relatively modest factual showing" that such a common policy.
scheme. or plan exists. Marroquill

1'.

Callales, 236 F.R.D. 257. 259 (D. Md. 2006).

To meet this burden and demonstrate that potential class members are "similarly
situated," Plaintiffs must set forth more than "vague allegations" with "meager factual support"
regarding a common policy to violate the FLSA. D 'Anlla

I'.

MIA COM. Inc .. 903 F.Supp. 889.

894 (D. Md. 1995); see also BOII/i1l1er.2012 WI. 738578. at *4. Their evidence need not.
however. enable the Court to determine conclusively whether a class of "similarly situated"
plaintiffs exists. B01l/11I1er. 012 WI. 738578. at *4. and it need not include evidence that the
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company has a formal policy of refusing to pay overtime. Quill/eros. 532 F.Supp.2d at 772.
Plaintiffs may rely on "[alffidavits

or other means," such as declarations and deposition

testimony. to make the required showing. IVilliallls \'. LOllg. 585 F. Supp.2d 679. 684-85 (D. Md.
2008); see also Essallle

1'.

SSC Laurel Opera/illg Co" 847 F.Supp.2d 821. 825 (D. Md. 2012).

Here. through declarations.

Plaintiffs have made a "modest factual showing" that they are

"similarly situated" to other sanitation workers who were employed by Unity Disposal as hclpers
and drivers from January 23. 2012 until December 31. 2014 and were allegedly victimized by
Unity Disposal's

policies that denied them both standard wages and overtime wages.

First. concerning Unity Disposal's alleged practice of automatically deducting thirty
minute meal breaks from its helper's and driver's timesheets. each Plaintiff has submitted a
declaration stating that this time was. in fact. deducted from their timesheets regardless of
whether he actually took the thirty minute meal break. See ECF Nos. 4-7 at ~~ 20. 21; 4-9 at ~~
18. 19; 4-11 at ~ 20; 4-13 at

~'li
19.21;

4-14 at ~ 18; 4-16 at '119. In fact. Plaintiffs Flores and

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Taylor recount instances when they heard Irom various Unity Disposal employees that it was the
company's

policy to deduct thirty minute meal breaks from every helper's and driver's paycheck

even if the employee did not take such a break. See ECF Nos. 4-7 at ~ 21: 4-13 at ~ 21. Based on
Plaintiffs' declarations.

it appears that this was a company-wide

practice affecting all helpers and

drivers employed by Unity Disposal as sanitation workers. The Court therefore concludes that
Plaintim

and the potential opt-in plaintiffs are "similarly situated" to the extent they were

subjected to Unity Disposal's alleged practice of deducting thirty minute meal breaks IrOlDtheir
helper's and driver's paychecks. See Camper. 200 F.R.D. at 520 (granting conditional
certification where plaintiffs have established through "sworn deposition tcstimony that one halfhour has bcen deducted li'om their time shect cvcn on thosc days on \\ hieh they workcd through
thcir scheduled meal break").
Additionally.

PlaintiffS have adequately demonstrated

Unity Disposal had a company-wide

through their declarations that

practice of paying its helpers and drivers a flat daily rate

regardless of the number of hours worked in a particular day. See ECF Nos. 4-7 at ~~ 12. 13; 4-9
at ~~ I I. 12; 4-1 I at1i'l 12. 13; 4-13 at ~~ 12. 13; 4-14 at ~~ 12. 13; 4-16 at

~'Ii I.
I

contend that. as a result of this practice. helpers and drivers were not compensated

12. Plaintiffs
in accordance

with applicable minimum wage and overtime laws. See ECF NO.4-I at 18-19. For example.
Plaintiff Flores stated in his declaration that he typically worked nine and one half hour shills.
starting each morning at 5;30 am and finishing at 3:00 pm. See id. at ~~ 7. 9. Sometimes.
however. he worked as late as 7:00 pm. See id. at

'Ii 9.

But regardless of whether PlaintifTFlores

completed his shill at 3:00 pm or 7:00 pm. he states that he (and other helpers) were paid a fixed
daily fate 01'$84 per day. See id. at ~ 12. Thus. if Plaintilf Flores completed a nine and one half
hour shill for which he earned $84. his effective hourly rate would have been $8.84. Plaintiffs

6

contend that this hourly rate was less than what was required by the Howard County and
Montgomery County Living Wage Ordinances, which set a minimum hourly wage for county
contractors between $13,20-$14.33.

depending on the year and county, See Howard County.

Md., Code ~. 4.122A (2008); .\'ee also Montgomery County, Md" Code ~ II B-33A (2004).
Like the meal-break deductions,

Plaintiffs' declarations suggest that this nat-rate

payment policy was not just limited to Plaintiffflores.

but was. instead. a company-wide

practice that affected all helpers and drivers employed by Unity Disposal as sanitation workers.
See ECF Nos. 4-7 at ~~ 12. 13: 4-9 at ~~ II. 12: 4-11 at~'; 12, 13; 4-13 at'I'; 12. 13; 4-14 aQI';
12. 13; 4-16 at ~,; I I. 12. The Court therefore concludes that I'lainti

ns and the potential

opt-in

plaintiffs are "similarly situated" to the extent they werc paid nat rates without regard to how
many hours each employee worked and without regard to whcther the effective hourly rales
violated federal and/or local wage and hour laws. See e.g. Sallche= \'. £1 Rallcho Spol"/.\'Bar
Corp .• No. 13-5119.2014
ccrtificationwhcre

WL 1998236. at *2 (S.D.N.Y. May 13.2014) (granting conditional

plaintifTs "asscrt in their dcclarations that they and all of the waitresses and

dancers were paid a Ilal daily salary regardless of how many hours they worked" thereby
satisfying the "modest factual showing required to establish that they are similarly situated to
thc" opt-in plaintiffs); lIernalllle=

\'.111/11/01'101

Rise, IlIc.• No. 11-4360.2012

WL 4369746. at *3

(E.D.N.Y. Sept. 24. 2012) (granting conditional certification where "Plaintiffs allege that they
consistently worked more than forty hours a week and were paid a Ilat weekly salary regardless
of the number of hours they worked, denying them both minimum and overtime wages");
Maudlin\'.

JohllllY Kynard Loggillg. IlIc.. No. 08-0307. 2009 WL 455479. at *4 (S.D. Ala. feb.

20. 2009) (granting conditional certification becausc ..the purported plaintiffs are similarly

7

situated in that all state that they were paid a flat daily rate (which defendant concedes)
regardless of the number of hours worked").
Unity Disposal makes several arguments against conditional certilication.

none of which

are persuasive. First. Unity Disposal maintains that conditional certification is inappropriate
because its meal break policy and flat daily rate policy did not. as a matter of law. violate the
FLSA. See ECF No. 35 at 4-5. 6-7. This argument. however. "goes to the merits of certain
aspects of Plaintiffs' claims. which are not appropriate to resolve at the conditional certilication
stage'" BillIeI' v. DireclSAT USA. LLC. 876 F. Supp. 2d 560. 572 (D. Md. 2012). "The touchstone
at this stage is merely whether Plaintiffs have demonstrated some factual nexus connecting them
to other potential plaintiffs as victims of an unlawful policy ..' It!.; see Essal1le. 847 F. Supp. 2d at
825 (reasoning that "the court does not weigh the merits" of the plaintiffs' claims at this early
stage). Accordingly.

the Court cannot yet consider Unity Disposal's merits-based argumcnts.

Next. Unity Disposal argues that conditional certilication
claims require "highly individualized"

is improper because Plaintiffs'

calculations of wages and hours. See ECF No. 35 at 5-

8. While it is true that Plaintiffs' individual wage and hour calculations may vary among one
another. Unity Disposal's argument

Ibils to recognize that "[ilndividual

circumstances are

inevitably present in a collective action'" ESl'enscheit!. 20 I0 WL 2330309. at *4. The presence
of such dillerences.

however. is not necessarily Ibtal to conditional certilication.

courts in the Fourth Circuit have explicitly c1arilied that '[d]iflerences

Indeed. "district

as to time actually

worked. wages actually due and hours involved' do not preclude a Iinding ofa 'similarly
situated' class." BillIeI' v. DireclSAT USA. LLC. No. 10-2747.2014

WL 4684337. at *7 (D. Md.

Sept. 18.2014) (quoting LaFlellr \'. Dollar Tree Slores. Inc .. No. 12-00363.2014
(E.D. Va. Mar. 7. 2014». Rather. "[t]o procecd as a collective action at this stage.

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WL 934379

Plaintiffs need only make 'a modest factual showing' that they were victims of a common policy
or practice that violated the FLSA." Mitchell'.

Croshy COI7).• No. 10-2349.2012

WL 4005535.

at *4 (D. Md. Sept. 10.2012) (quoting Essame. 2012 WL 762895, at *4). As discussed. Plaintiffs
have satisfied that showing.
Finally. Unity Disposal's
20 I0) and Purdham

1'.

rcliancc on .~l',ja

I'.

We.Hat. Inc .. 756 F. Supp. 2d 682 (D. Md.

Fair:lh, CllIy. Puh. Sch .. 629 F. Supp. 2d 544 (E.D. Va. 2009) is

misplaced. Both of these cases actually did involve "substantial individualized determinations

for

each class member." Sy'.1a. 756 F. Supp. 2d at 687. Specifically, in .\)'lja. the court dcnicd a
motion f,)r conditional ccrtification where the plaintiffs consistcd ofa group ofindepcndent
employees "who worked in multiplc geographie loeatil)J1s around the country. over different time
periods. in offices run by differcnt managers. without any showing of a national policy," Mitchel.
No. 10.2349.2012

WL 4005535. at *4 (citing .~\'1.1a.756 F. Supp. 2d at 688). In fact. in denying

conditional certification.

the .~l'1.1a
court explicitly distinguished that case from ones like this that

"involve[eJ a group of employees who all work in a single location. in similar positions. under a
single management structurc," .~V1.1a.
756 F. Supp. 2d at 690. Here. Plaintiffs consist of a single
group of employees (i.e. sanitation workers) who worked in two neighboring Maryland counties
(i.e. Montgomcry

County and Howard County) under a single management structure at Unity

Disposal. Punlham is similarly distinguishable.
certification.

In that case. the court denied couditional

in pal1. due to its concern about the nced to evaluate the merits of each plaintitrs

claims on an "individual-by-individual

basis," Punlham. 629 F. Supp. 2d at 550. Specifically.

the court observed that the "method by which [plaintiffs] are paid and the amount of money they
are paid vary widely ... ,'. Id. That concern. however. is not present here. Plaintitrs. declarations
indicate that helpers and drivers were paid daily flat rates that varied very little. See ECF Nos. 4-

9

7 at ~~ 12. 13: 4-9 at ~~ II. 12: 4-11 at

'I~
12.

13: 4-13 at ~~ 12.13: 4-14 at ~~ 12. 13: 4-16 at

'i~

II. 12. The Court will therefore grant Plaintiffs' motion for conditional certification.
H.

Court-Facilitated

Noticc

Because Plaintiffs have made a preliminary showing that sanitation workers who were
employed by Unity Disposal as helper and drivers are "similarly situated:'

notice of this action

will be provided to all helpers and drivers who worked at Unity Disposal from January 23. 2012
until December 31. 2014. "The district court has broad discretion regarding the 'details' of the
notice sent to potential opt-in plaintiffs:'

Mcfeeley

1'.

Jacksoll SI. EIIIIII'I. LLC. No. 12-1019.

2012 WL 5928902. at *5 (D. Md. Nov. 26. 2012) (citing Lee

1'.

ABC Ca"liel & HOllie. 236

F.R.D. 193.202 (S.D.N.Y. 2006)). 'The overarching policies of the FLSA's collective suit
provisions require that the proposed notice provide 'accurate and timely notice concerning the
pendency of the collective action. so that [potential plaintiffs] can make informed decisions
about whether to participate ...• Whilehorn

I'.

Wolfgang '.\'Sleakhollse. Inc .. 767 F.Supp.2d 445.

450 (S.D.N.Y. 20 II) (quoting Fa.wlIlelli \'. /fearllmlll Bre\l'el)'. Ille.. 516 F.Supp.2d 317. 323
(S.D.N.Y.2007)).
Here. Plaintiffs have submitted a proposed noticc form. See ECF Nos. 4-3 (English
version) and 4-4 (Spanish version). Unity Disposal objects to Plaintiffs' proposed notice on the
basis that it is overbroad insofar as it seeks to provide notice to sanitation workers three years
removed. See ECF No. 15 at 9. Unity Disposal argues that because the statute of limitations for a
FLSA violation is two years (absent a showing of wi IIfitlness. in which case it is three years). the
proposed notice is overly broad. See id. Because "Plaintiffs have not yet made any showing of
willfulncss."

Unity Disposal contends the not icc must bc limited to a two-year period. Id. The

Court disagrees.

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Plaintiffs have made several allegations. reflected in various declarations. that employees
of Unity Disposal showed. at least. recklcss disregard for sanitation workers' ovcrtimc hours.
Specifically. Plaintiff Taylor statcs in his declaration that he spoke with Sabrina Jenkins
('"Jenkins"). Unity Disposal's payroll manager. about the thirty minute deductions. See ECF No.
4-13 at ~ 21. According to PlaintifTTaylor.
from everyone's

Jenkins told him that thirty minutes gets deducted

paycheck. whether hc or shc takes a break or not. See it!. These statemcnts are

sufficient to create a gcneral allegation of reckless disregard and lead the Court to concludc that
applying the thrce-year statute of limitations is appropriate for notice purposcs. See e.g .. Andrade
\'. Aero/ek, Inc .. No. 08-2668. 2009 WL 2757099. at *5 (D. Md. Aug. 26. 2009) (finding thc
thrcc-ycar statutc of limitations to be appropriate for notice purposcs whcre the plaintilfs havc
madc scveral allegations that rctleet reckless disregard by the supervisors lor the employec's
ovcrtime hours); Roebuck \'. Hudson Valle)' Farll/s. Inc .. 239 F.Supp.2d 234. 240 (N.D.N.Y.
2002) (finding the three-year statute of limitations to be appropriate for notice purposes whcre
the issue of willfulness could not be readily determined); .'leI/Ie \'. S. IV Rodgers, Co .. Inc .. 998
F.Supp. 657. 664 (E.D. Va. 1998) ("[W]here. as here. a plaintiff sufficiently alleges facts
supporting the claimed violation of the FMLA. a general averment as to willfulness should be
sufficient to trigger the three-year limitations period.").
In addition to Unity Disposal's concern ovcr thc limitations period. Unity Disposal
believes that Plaintiffs' description of the lawsuit in their proposcd not icc is prejudicial and
requires change. As such. Unity Disposal has requestcd "an opportunity to revicw. edit. and
approve any notice. should this Court decide that a not icc is appropriate,"

ECF No. 15 at 9. The

Court will grant Unity Disposal this limited relief. The Court thcrefore orders counsel for the
parties to meet and confer regarding Plaintiffs' proposed "Notice of Collective Action" and

II

"Consent to Join Action" (see ECF Nos. 4-31,4-4.4-5,4-6)

and submit to the Court, within

fourteen (14) days of the date of entry of this Order, ajoint proposed "Notice of Collective
Action" and "Consent to Join Action" that is consistent with the Court's conclusions as stated in
this Memorandum Opinion. [fthe parties are unable to agree on a proposed "Notice of Collective
Action" and/or "Consent to Join Action:' each party should submit their proposed notices for the
Court's decision. within the same fourteen day period. along with a memorandum to the Court
explaining why the parties were unable to reach an agreement.
III.

CONCLUSION
For the reasons stated above. Plaintiffs' Motion for Conditional Certification. ECF NO.4.

is GRANTED. The class is conditionally certified as to all current and former sanitation workers
employed by Unity Disposal as helpers and drivers from January 23.2012 until December 31.
2014. Additionally. the parties are ORDERED to meet and confer regarding Plaintiffs' proposed
"Notice of Collective Action" and "Consent to Join Action" and submit joint proposals of each
within fourteen (14) days of the date of entry of this Memorandum Opinion and accompanying
Order.

lSI
George J. Hazel
United States District Judge

Dated: April 2. 2015

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