Pennington v. Integrity Communications, LLC et al

Filing 67

MEMORANDUM AND ORDER re: 43 MOTION to Certify Class Pursuant to the FLSA filed by Plaintiff Bryan Pennington; motion is DENIED without prejudice. Signed by District Judge Stephen N. Limbaugh, Jr on 10/11/2012. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

BRYAN PENNINGTON,

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on behalf of himself and all
)
others similarly situated,
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Plaintiffs,
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vs.
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INTEGRITY COMMUNICATIONS, LLC, )
et al.
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Defendants.
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Case No. 1:12-cv-5 SNLJ

MEMORANDUM AND ORDER
Plaintiffs filed a seven-count complaint against defendants Integrity Communications,
Inc., Integrity Communications, LLC, Holly Rehder, and Ray Rehder, seeking to recover unpaid
wages, liquidated damages, attorney fees, and other relief from defendants for violations of the
Fair Labor Standards Act, 29 U.S.C. §201, et seq. (“FLSA”), the Employee Retirement Income
Security Act, 29 U.S.C. §1001, et seq. (“ERISA”), the Missouri Minimum Wage Law, §290.500
R.S.Mo. et seq. (“MMWL”), and Missouri common law. Plaintiffs have filed a motion to
conditionally certify the class they seek to represent (#43). The matter has been fully briefed and
is now ripe for disposition.
I.

Background
According to the Second Amended Complaint, plaintiffs Bryan Pennington and Stephen

Pennington, Sr. install cable components (cable and cable boxes) for the defendants. Although
the defendants classified the plaintiffs as independent contractors and paid them “piece rate

wages” (meaning they were paid by the job), plaintiffs state that they were misclassified and are
instead employees of the defendants. Plaintiffs state that they were paid by the job, called “piece
work,” but that they were not paid for all the jobs completed. They complain that they were not
paid overtime or for expenses related to travel, that their work hours were not recorded, and that
defendants have failed to keep records for employees sufficient to determine employee wages
and hours in violation of the FLSA. Plaintiffs state that they were required to work evenings and
weekends without overtime compensation, and that they were required to wear shirts imprinted
with defendants’ logo and to present themselves as defendants’ employees. Defendants supplied
plaintiffs’ tools, but plaintiffs were required to pay defendants for the tools (Bryan was required
to return the tools to defendants but was not reimbursed for their return). Defendants directed
and controlled when plaintiffs reported to scheduled jobs, where to report, when the workday
ended, and how to perform necessary services. Defendants also required plaintiffs to attend
mandatory training meetings for which they did not receive compensation.
Plaintiffs allege that, had they been properly classified as employees rather than
independent contractors, they would have been permitted access to defendants’ health, dental,
and vacation pay plans. Plaintiffs allege that defendants gained excess profits by misclassifying
plaintiffs as independent contractors. Further, plaintiffs state that Bryan was terminated as a
result of his complaints regarding defendants’ allegedly illegal wage and hour practices.
II.

Motion to Conditionally Certify Class
Under 29 U.S.C. § 216(b), an employee may bring an action under the FLSA on his own

behalf as well as for those “similarly situated.” The FLSA does not define “similarly situated,”
and the Eighth Circuit has not addressed what standard should be applied to the phrase. Huang
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v. Gateway Hotel Holdings, 248 F.R.D. 225, 227 (E.D. Mo. 2008). However, district courts in
this Circuit have conducted a two-step analysis to determine whether employees are “similarly
situated.” Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp. 2d 1014, 1016-17 (E.D. Mo.
2010). The first step is the “notice stage,” in which plaintiffs seek early conditional class
certification and notify potential class members of the case. Id. The second step is the “merits
stage,” which takes place after discovery and during which defendants may move to decertify the
class. Id. at 1017. We are in the first stage of that analysis.
Plaintiffs’ burden at the “notice stage” is not onerous: conditional certification “requires
nothing more than substantial allegations that the putative class members were together the
victims of a single decision, policy or plan.” Id. Plaintiffs may satisfy this burden through
affidavits, supported by admissible evidence. Id. “The plaintiffs may not meet this burden
through unsupported assertions of additional plaintiffs and widespread FLSA violations.” Id.
The Court does not need to determine whether class members are actually similarly situated until
the “merits stage” of the litigation, when defendants typically move to decertify the class. Id.
III.

Discussion
Plaintiffs claim that defendants had a corporate-wide common policy or plan where they

misclassified cable installers as “independent contractors” instead of employees and required
them to work more than 40 hours per week without overtime pay. As a result, they say, plaintiffs
and those similarly situated were deprived of wages and benefits to which they were entitled.
Plaintiffs seek to conditionally certify a class of similarly situated employees over the past three
years.

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“In a typical case, the court decides whether to conditionally certify a class based solely
on the plaintiff’s affidavits.” Id. (citing Huang, 248 F.R.D. at 227). Here, each of the plaintiffs
has submitted a declaration stating that he worked as a cable installer for the defendants but was
paid by the “job,” not by the hour. Plaintiffs declare that their work schedules were controlled by
the defendants, and that they were not permitted to hire helpers. Plaintiff declare that they
worked more than 40 hours per week — averaging 50 to “at least” 70 hours — but that they did
not receive benefits nor were they paid overtime. Plaintiffs also allege that they “witnessed and
was aware of other cable installers who installed cable for [defendants’] customers, who traveled
out of state to install cable, who traveled from workplace to workplace during their workday, and
who worked evenings and weekends, which resulted in cable installers working over forty (40)
hours per week.” Plaintiffs do not allege that those “other cable installers” were not paid
overtime or that they were also paid by the job, and defendants oppose conditional class
certification on this basis, among others. Put another way, the “other cable installers” who were
observed to work more than 40 hours per week may have been paid overtime rates, and in that
case there would have been no violation as to them. Thus, plaintiffs’ declarations are missing a
critical step.
For that reason, the Court cannot agree that plaintiffs have made “substantial allegations
that the putative class members were together the victims of a single decision, policy or plan.”
Littlefield, 679 F. Supp. 2d at 1016-17. Plaintiffs have not shown that the class of employees
they seek to represent are “similarly situated.” It is possible, however, that plaintiffs can remedy
that defect. Thus the Court will deny the motion without prejudice. Plaintiffs may refile their
motion with new supporting declarations if they are able to put forth the evidence required.
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Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to conditionally certify the class
(#43) is DENIED without prejudice.
Dated this 11th day of October, 2012.

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UNITED STATES DISTRICT JUDGE

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