Heeg, et al v. United Electrical Contractors, Inc.

Filing 17

OPINION; signed by District Judge Hala Y. Jarbou (aks)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TRAVIS HEEG, et al.,
Plaintiffs,
Case No. 1:21-cv-796
v.
Hon. Hala Y. Jarbou
UNITED ELECTRICAL CONTRACTORS,
INC.,
Defendant.
___________________________________/
OPINION
This is an action seeking damages under the Fair Labor Standards Act (FLSA), 29 U.S.C.
§ 201, et seq., and Michigan’s Workforce Opportunity Wage Act (WOWA), Mich. Comp. Laws
§ 408.411, et seq. Plaintiffs Travis Heeg, Dalton Parish, Andrew Crampton, Evan Kopke, Timothy
Nolen, Richard Johnson, and Marius Richardson are or were employed by Defendant United
Electrical Contractors, Inc. (“UEC”) as electrical workers. Plaintiffs contend that UEC did not
properly compensate them for time worked. Before the Court is Plaintiffs’ motion to conditionally
certify a collective action under the FLSA. (ECF No. 9.) The Court will grant the motion.
I. BACKGROUND
UEC, which has offices in Lansing and Livonia, Michigan, is an electrical contractor that
works on construction sites throughout the State of Michigan. It employed Plaintiffs and other
electrical workers, paying them on an hourly basis. There are three types of electrical workers
employed by UEC: Apprentice Electricians, Journeymen Electricians, and Foremen. (See Compl.,

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ECF No. 1, PageID.4; Peebles Decl. ¶¶ 3-4, ECF No. 15-2.)1 Each type has its own job
responsibilities and rate of pay.
Plaintiff Heeg worked for UEC as an Apprentice Electrician from November 2016 through
November 2020. (Heeg Decl. ¶ 2, ECF No. 9-1.) Plaintiff Richardson worked for UEC as an
Apprentice Electrician from January 2020 through October 2020. (Richardson Decl. ¶ 2, ECF
No. 9-2.) Plaintiff Kopke worked for UEC as an Apprentice Electrician from May 2017 to
February 2021. (Kopke Decl. ¶ 2, ECF No. 9-3.) Plaintiff Crampton worked for UEC as a
Journeyman Electrician and Foreman from September 2016 to February 2021. (Crampton Decl.
¶ 2, ECF No. 9-4.) Plaintiff Parish worked for UEC as an Apprentice Electrician from March 2020
to March 2021. (Parish Decl. ¶ 2, ECF No. 9-5.) Plaintiff Nolen worked for UEC as a Journeyman
Electrician and Foreman from January 2018 to January 2021. (Nolen Decl. ¶ 2, ECF No. 9-6.)
Plaintiff Johnson worked for UEC as a Journeyman Electrician and Foreman from April 2013 to
October 2020. (Johnson Decl. ¶ 2, ECF No. 9-7.)
Plaintiffs assert four violations of the FLSA and/or WOWA: (1) unpaid shop time;
(2) undercompensated overtime pay due to a “per diem” policy; (3) unpaid training; and (4) unpaid
print review.
A. Shop Time
In their affidavits, Plaintiffs contend that UEC required them to report to UEC’s “shop” in
Lansing several times per week in order to load materials and tools into UEC’s company vehicle
and then travel to the job site. UEC did not pay them for this time; UEC considered the time of
their arrival at the jobsite as the start of their compensable workday. Similarly, at the end of the

UEC asserts that there is an additional category of electrical worker called “Laborer,” but its Vice President, Robert
Peebles, avers that Laborers are “non-electrical workers” who “do not perform any electrical tasks.” (Peebles Decl.
¶ 4.)
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workday, UEC would require them to travel back to the shop and unload materials and tools. UEC
would not pay them for the time traveling back to the shop or for the time unloading the vehicle.
B. Per Diem
Plaintiffs also contend, and UEC acknowledges, that UEC had a policy of paying its
electrical workers an extra $2 per hour as a “per diem” when working at a job site more than sixty
miles from the shop. This per diem did not reimburse Plaintiffs for food and other expenses; it
was simply an addition to their hourly pay. However, UEC did not include this extra pay in
Plaintiffs’ hourly rate when calculating overtime pay.
C. Unpaid Mandatory Training
Plaintiffs contend that UEC required them to complete online training modules as a
condition for their employment and did not compensate them for the time spent undergoing this
training. To the extent Plaintiffs worked as Apprentice Electricians, Plaintiffs contend that they
did not have a written apprenticeship agreement with UEC, and UEC did not employ them under
an apprenticeship program that met the Department of Labor’s requirements. See 29 C.F.R.
§ 785.32 (excluding time spent in a “bona fide apprenticeship program” that “substantially meets
the fundamental standards” of the Department of Labor from compensable work time).
D. Unpaid Print Review
Finally, Plaintiffs contend that UEC required electrical workers working as Foremen to
review job prints and prepare for the week’s activities over the weekend, without compensation.
Plaintiffs now ask the Court to conditionally certify this action as a collective action under
the FLSA that includes a class of
similarly situated individuals, known and unknown, who were employed by [UEC]
as electricians, including Apprentices, Journeymen, and Foremen[], and who were
deprived of overtime for hours worked in excess of forty hours a week over the
course of the last three years.
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(Pls.’ Br. 3, ECF No. 9.)
II. CONDITIONAL CERTIFICATION STANDARD
Under the FLSA, an employee can maintain an action “for and [on] behalf of himself . . .
and other employees similarly situated.” 29 U.S.C. § 216(b).
Section 216(b) establishes two requirements for a representative action: 1) the
plaintiffs must actually be similarly situated, and 2) all plaintiffs must signal in
writing their affirmative consent to participate in the action. Similarly situated
persons are permitted to opt into the suit. This type of suit is called “collective
action.” It is distinguished from the opt-out approach utilized in class actions under
[Rule 23 of the Federal Rules of Civil Procedure].
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006) (internal citations and
quotations marks omitted).
The threshold issue in the conditional certification inquiry is “whether plaintiffs have
shown that the employees to be notified are, in fact, ‘similarly situated.’” Id. If the plaintiffs meet
their burden at this stage, the Court “may use its discretion to authorize notification of similarly
situated employees to allow them to opt into the lawsuit.” Id.
Courts typically bifurcate certification of FLSA collective action cases. At the
notice stage, conditional certification may be given along with judicial
authorization to notify similarly situated employees of the action. Once discovery
has concluded, the district court—with more information on which to base its
decision and thus under a more exacting standard—looks more closely at whether
the members of the class are similarly situated.
Monroe v. FTS USA, LLC, 860 F.3d 389, 397 (6th Cir. 2017) (internal citation omitted).
The FLSA does not define “similarly situated.” The Court of Appeals has considered
several factors to determine whether certification is appropriate. Those factors include the
“‘factual and employment settings of the individual[ ] plaintiffs, the different defenses to which
the plaintiffs may be subject on an individual basis, [and] the degree of fairness and procedural
impact of certifying the action as a collective action.’” O’Brien v. Ed Donnelly Enters., Inc., 575
F.3d 567, 584 (6th Cir. 2009) (quoting 7B Wright, Miller, & Kane, Federal Practice and Procedure
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§ 1807 at 497 n.56 (3d ed. 2005)), abrogated on other grounds by Campbell-Ewald Co. v. Gomez,
577 U.S. 153 (2016). Also, plaintiffs can be similarly situated where their claims are “unified by
common theories of defendants’ statutory violations, even if the proofs of these theories are
inevitably individualized and distinct.” Id. at 585.
It is Plaintiffs’ burden to show that conditional certification is warranted, but they only
need to make a “‘modest factual showing sufficient to demonstrate that they and potential plaintiffs
together were victims of a common policy or plan that violated the law.’” Comer, 454 F.3d at 547
(quoting Roebuck v. Hudson Valley Farms, Inc., 239 F. Supp. 2d 234, 238 (N.D.N.Y. 2002)).
III. ANALYSIS
A. Plaintiffs’ Evidence
According to Plaintiffs’ evidence at this stage, UEC has required each of them to perform
uncompensated work loading tools and materials at the shop before traveling to the jobsite. UEC
also failed to properly compensate them for overtime hours worked because it did not include the
“per diem” when calculating their regular rate of pay. Also, it has required them to perform
mandatory training and off-the-clock work without compensating them. And to the extent UEC
relies on an apprenticeship program to exclude training from compensated work, Plaintiffs assert
that this program does not meet the Department of Labor’s requirements and the Plaintiffs who
worked as Apprentice Electricians did not sign agreements to participate in such a program.
Although the proofs will likely differ as to each individual, Plaintiffs’ work environments appear
to be substantially similar, and they share common theories of violations that likely apply to other
electrical workers.
B. UEC’s Response
First, UEC provides evidence purporting to refute each of Plaintiffs’ claims, supported by
a declaration of its Vice President, Robert Peebles. (See Peebles Decl., ECF No. 15-2.) For
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instance, UEC asserts that its employees are generally responsible for recording, completing, and
reviewing their timesheets. (Id. ¶¶ 13-15.) Consequently, time that is not reported will not be
compensated.
As to shop time, UEC asserts that its policies prohibit employees from retrieving materials
and tools from the shop and transporting them to the job site. (Id. ¶¶ 21-22.) UEC employs a shop
manager and delivery drivers for that purpose. When electrical workers have performed these
tasks and reported their work, they were compensated. (Id. ¶ 23.)
Regarding the per diem, UEC asserts that it conducted an audit for the three-year period at
issue in this case and reimbursed its employees for the amounts it should have paid them had it
used the per diem to calculate the regular rate. (Id. ¶ 19.)
With respect to the trainings, UEC provides evidence of signed agreements with the four
named Plaintiffs who worked as Apprentice Electricians. UEC also contends that its program
complies with the Department of Labor’s and the State of Michigan’s requirements. UEC funds a
training program, but the apprentices are not required to participate in UEC’s program. To the
extent UEC requires its employees to take online training courses, it views the trainings as
compensable time that should be recorded on the employee’s timesheet. (Id. ¶¶ 26-27.)
Finally, to the extent Foremen or other electrical workers are given prints to review over
the weekend, UEC contends that this time is compensable as long as it is recorded on the
employee’s timesheet. (Id. ¶ 24.)
UEC’s evidence might be relevant for a summary judgment motion, but it is not helpful
for resolving Plaintiffs’ motion for conditional certification. UEC is effectively asking the Court
to consider the merits of Plaintiffs’ claims by disregarding Plaintiffs’ affidavits in favor of its own
evidence. That is not the relevant inquiry. “During this preliminary stage, a district court does not

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generally consider the merits of the claims, resolve factual disputes, or evaluate credibility.”
Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759, 765 (N.D. Ohio 2015). Indeed, discovery in this
case is ongoing; it would be improper for the Court to accept UEC’s evidence at face value before
Plaintiffs have had an opportunity to test that evidence.
Next, UEC contends that Plaintiffs’ evidence is “too conclusory, speculative and scant” to
satisfy their burden. (Def.’s Br. 11, ECF No. 15.) The Court disagrees. UEC cites cases in which
the plaintiff(s) relied on the declarations of no more than one or two employees to speculate that
there was a violation common to a larger class. See, e.g., Sutka v. Yazaki N. Am., Inc., No. 1710669, 2018 WL 1255767, at *9 (E.D. Mich. Mar. 12, 2018); Swinney v. Amcomm Telecomms.,
Inc., No. 12-12925, 2013 WL 28063, at *8 (E.D. Mich. Jan. 2, 2013); Demorris v. Rite Way Fence,
Inc., No. 14-CV-13777, 2015 WL 12990483, at *4 (E.D. Mich. Mar. 30, 2015); Shipes v. Amurcon
Corp., No. 10-14943, 2012 WL 995362, at *10 (E.D. Mich. Mar. 23, 2012); see also Gallagher v.
Gen. Motors Co., No. 19-11836, 2020 WL 3481649, at *4 (E.D. Mich. June 26, 2020) (declarations
by four employees regarding the conditions of thousands of contractors spread throughout the
country). Those are not the circumstances here.
UEC also contends that Plaintiffs are not similarly situated among themselves or with other
electrical workers because they occupied different positions with different rates of pay and
different duties at different jobsites. None of those factors significantly undermine Plaintiffs’ case
for conditional certification. The different rates of pay simply mean that different plaintiffs might
be entitled to different amounts of damages. It is not clear how the different duties and jobsites
has any bearing on how UEC compensated each of them with regard to training, the per diem, or
shop time. While it is true that only Apprentice Electricians would be impacted by UEC’s alleged
failure to maintain an appropriate apprenticeship training program, those employees would still

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have the other violations in common with the class. It would not be difficult to segment the
apprentice-specific claims from the others. The same is true of the claims by the plaintiffs who
worked as Foremen and thus, are the only ones required to review prints on weekends. The fact
that some electrical workers might have suffered more violations than others does not persuade
the Court that they are not similarly situated.
Finally, UEC argues that there will be a conflict between the Foremen and the other
electrical workers because the Foremen are responsible to track and verify the timesheets
submitted by the others. However, UEC cites no precedent in which such a conflict warrants denial
of conditional certification of a collective action. This is not a putative class action under Rule 32,
in which conflicts between named and unnamed class members are an important consideration.
And in any case, it is ultimately UEC’s responsibility to properly supervise and compensate its
employees for their work.
IV. CONCLUSION
In summary, the Court is satisfied that Plaintiffs have established their burden of showing
that conditional certification is warranted. Accordingly, the Court will grant their motion insofar
as it seeks that certification.
Plaintiffs’ motion also asks the Court to require UEC to provide a complete list of
individuals employed by UEC as electrical workers in the last three years. The Court will defer
that request to the discovery process.

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Finally, Plaintiffs ask the Court to approve the notice attached to their motion, which will
be sent to potential class members. UEC provides no reason to reject the notice. The Court will
approve it.
An order will enter consistent with this Opinion.

Dated:

May 10, 2022

/s/ Hala Y. Jarbou
HALA Y. JARBOU
UNITED STATES DISTRICT JUDGE

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