Baouch v. Werner Enterprises, Inc. et al
MEMORANDUM AND ORDER granting 70 Motion for conditional certification of this case as a collective action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Ordered by Senior Judge Lyle E. Strom. (JSF)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
YASSINE BAOUCH, et al.,
WERNER ENTERPRISES, INC.,
d/b/a WERNER TRUCKING, and
DRIVERS MANAGEMENT, LLC,
MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion
for conditional certification of this case as a collective action
under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(Filing No. 70).
The plaintiffs filed a brief (Filing No. 71)
and index of evidence (Filing No. 72) in support of their motion.
Defendants have filed a brief (Filing No. 91) and indices of
evidence (Filing Nos. 92 and 93) in opposition of the motion.
Plaintiffs filed a reply brief (Filing No. 99) and index of
evidence (Filing No. 100).
The motion will be granted.
Defendants are Werner Enterprises, Inc., and Drivers
Management, L.L.C. (collectively “Werner”).
Werner is a trucking
Plaintiffs are current and former employees of Werner.
The plaintiffs allege Werner has violated the Federal Labor
Standards Act (“FLSA”) and various state law claims including the
Nebraska Wage and Hour Act (“NWHA”).
Essentially, the plaintiffs
claim that Werner allowed its employees to opt-in to a “per diem”
program which circumvented minimum wage regulations.
The FLSA authorizes claims “by any one or more
employees for and in [sic] behalf of himself or themselves and
other employees similarly situated.”
29 U.S.C. § 216(b).
Neither the FLSA itself nor the Eighth Circuit have defined
Petrone v. Werner Enters., Inc.,
8:12CV307, 2012 WL 4848900, at *2 (D. Neb. Oct. 11, 2012) (citing
Schleipfer v. Mitek Corp., 1:06CV109 CDP, 2007 WL 2485007, *3
(E.D. Mo. Aug. 29, 2007)).
However, the practice of district
courts in the circuit is to apply a two-step approach in making a
Id. (citing Littlefield v. Dealer Warranty
Servs., LLC, 679 F. Supp.2d 1014, 1016-17).
First, early in the litigation process, the class is
conditionally certified upon plaintiffs’ showing that the
proposed class is similarly situated.
burden at [this] stage is not onerous.”
certification allows plaintiffs to move forward with
identification of proposed class members and notification of the
opportunity to opt-in.
Once the proposed class members have been
identified and have voiced their consent to participation and
discovery has closed, defendants have the opportunity to move for
decertification of the class.
At that point, “the court
must determine whether the plaintiffs are, in fact, similarly
The plaintiffs have provided evidence of Werner’s per
diem pay program and that this program provided less than the
minimum hourly wage for an employee.
This evidence illustrates
that the putative class members were victims of a single
decision, policy or plan.
See Schleipfer, 1:06CV109 CDP, 2007 WL
2485007, *3 (citing Davis v. Novastar Mortg., Inc., 408 F. Supp.
2d 811, 815 (W.D. Mo. 2005).
Different members of the class may
receive different damage awards, but this fact is insufficient to
defeat the plaintiffs’ certification at this stage.
IT IS ORDERED that plaintiffs’ motion for conditional
certification of this case as a collective action under the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq., is granted.
DATED this 6th day of May, 2014.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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