Baouch v. Werner Enterprises, Inc. et al

Filing 111

MEMORANDUM AND ORDER NUNC PRO TUNC granting the plaintiffs' 70 Motion for conditional certification of this case as a collective action under the Fair Labor Standards Act, and Rule 23. Ordered by Senior Judge Lyle E. Strom. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
YASSINE BAOUCH, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:12CV408

MEMORANDUM AND ORDER
NUNC PRO TUNC

This matter is before the Court on plaintiffs’ motion
for conditional collective action certification under the Fair
Labor Standards Act (“FLSA”) and Rule 23 (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”).
company.

Werner is a trucking

Plaintiffs are current and former employees of Werner.

The plaintiffs allege Werner has violated the 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
“similarly situated.”

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
determination.

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.”

Id.
Id.

“The plaintiff’s
Conditional

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.

Id.

At that point, “the court

must determine whether the plaintiffs are, in fact, similarly
situated.”

Id.
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.

Accordingly,
IT IS ORDERED that plaintiffs’ motion for conditional

collective action certification under the Fair Labor Standards
Act and Rule 23 is granted.
DATED this 7th day of May, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court