BOWE v. ENVIRO PRO BASEMENT SYSTEMS et al
Filing
21
OPINION. Signed by Judge Noel L. Hillman on 12/4/2013. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JASON BOWE,
Civil No. 12-2099 (NLH/KMW)
Plaintiff,
OPINION
v.
ENVIROPRO BASEMENT SYSTEMS,
et al.,
Defendants.
APPEARANCES:
Justin L. Swidler, Esquire
Nicholas Dennis George, Esquire
Swartz Swidler, LLC
1878 Marlton Pike East
Society Hill Office Park
Suite 10
Cherry Hill, New Jersey 08003
Attorneys for Plaintiff Jason Bowe
James M. Carter, Esquire
Law Offices of Hoffman DiMuzio
4270 Route 42
Turnersville, New Jersey 08012
Attorney for Defendants Enviro Pro Basement Systems and
Michael Troyner
HILLMAN, District Judge
This matter comes before the Court by way of Plaintiff’s
motion [Doc. No. 15] to certify conditionally this action as a
collective action pursuant to Section 216(b) of the Fair Labor
Standards Act.
Defendants have not filed opposition to the
present motion, and the time for filing opposition has expired. 1
The Court has considered Plaintiff’s submissions and decides
this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Plaintiff’s motion will be
granted.
I.
JURISDICTION
Although a class has not yet been certified, Plaintiff
purports to brings this action on behalf of himself and all
others “similarly situated” to remedy alleged violations of the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.
Accordingly, the Court exercises jurisdiction over this matter
pursuant to 28 U.S.C. § 1331.
Plaintiff also asserts claims
1
By letter [Doc. No. 17] dated April 1, 2013, Defendants
sought a two-week extension of time to respond to Plaintiff’s
motion for conditional certification and a two week adjournment
of the motion day. The Court granted Defendants’ request by
Text Order entered on April 2, 2013, and directed the Clerk to
reset the motion day to May 6, 2013. Accordingly, Defendants’
opposition was due by no later than April 22, 2013.
Despite seeking and obtaining an extension of time and an
adjournment of the motion day, Defendants have failed to oppose
Plaintiff’s motion as of the date of this Opinion. Plaintiff
has requested that the Court consider Plaintiff’s motion
unopposed by letter [Doc. No. 19] dated June 26, 2013. In light
of Defendants’ continued failure to file opposition or to seek
an additional extension of time at any point since April 22,
2013, the Court grants Plaintiff’s request and considers this
motion unopposed.
2
under the New Jersey Wage and Hour Law (“NJWHL”) and the New
Jersey Wage Payment Law (“NJWPL”).
The Court exercises
supplemental jurisdiction over Plaintiff’s state law claims
pursuant to 28 U.S.C. § 1367.
II.
BACKGROUND
Defendant Enviro Pro Basement Systems (hereinafter, “Enviro
Pro”) is a residential basement waterproofing business that also
installs water removal systems in residential homes. 2
(See Am.
Compl. ¶ 7; Br. in Supp. of Named Pl.’s Mot. To Conditionally
Certify as Collective Action (hereinafter, “Pl.’s Br.”),
Statement of Facts (“SOF”) ¶ 1.)
Defendant Michael Troyner is
the owner and operator of Enviro Pro.
Pl.’s Br. 1.)
(See Am. Compl. ¶ 8;
Plaintiff Jason Bowe was employed by Defendants
from sometime in approximately 2005 (or 2006) until his
termination in February 2012.
SOF ¶ 2.)
(See Am. Compl. ¶ 17; Pl.’s Br. –
From approximately April 1, 2009 through the date of
2
There appears to be no dispute that Enviro Pro is an
employer within the meaning of 29 U.S.C. § 203(d) which provides
in pertinent part that an employer “includes any person acting
directly or indirectly in the interest of an employer in
relation to an employee and includes a public agency, but does
not include any labor organization (other than when acting as an
employer) or anyone acting in the capacity of officer or agent
of such labor organization.” 29 U.S.C. § 203(d).
3
his termination, Plaintiff Jason Bowe worked in the capacity of
Foreman and Service Manager.
(Pl.’s Br. – SOF ¶ 2.)
Plaintiff’s amended complaint [Doc. No. 11] alleges that he
and the Collective Action Plaintiffs 3 were laborers whose primary
duties involved providing basement waterproofing services,
including, but not limited to, removal of mold and mildew,
painting surfaces, and installing pumps.
(Am. Compl. ¶ 22.)
Plaintiff asserts that the daily job routine of Plaintiff and
the Collective Action Plaintiffs consisted of:
(a) arriving at Defendants’ Newfield, NJ location
to receive information relating to the day’s
assignments, to load the company vehicle with
supplies needed for the job, and to transport
the company vehicle and employees to the job
site;
(b) transporting said vehicle and employees to the
job site;
(c) engaging in basement waterproofing services at
the customer job site;
(d) transporting the vehicle, employees, and
supplies from the customer job site [back] to
Defendants’ Newfield, NJ location, and
(e) unloading the company vehicle, cleaning and
preparing the company vehicle for use the next
day, and restocking new materials.
3
According to Plaintiff’s amended complaint, “members of
this putative class are referred to as” the “Collective Action
Plaintiffs” and include “all persons presently and formerly
employed as hourly employees of Defendants who worked or work
for Defendants as installation technicians or in similar
positions with similar duties, and who are/were subject to
Defendants’ unlawful pay practices and policies[.]” (Am. Compl.
¶ 10.)
4
(Am. Compl. ¶ 23.)
Plaintiff alleges that Defendants violated the FLSA with
respect to Plaintiff and all members of the putative class by:
(1) failing to pay hourly employees for all their compensable
work time; (2) automatically deducting 30 minutes of paid time
from the work day as a lunch deduction even when no bona fide
30-minute lunch break was taken; and (3) improperly calculating
the regular rate of pay when determining appropriate overtime
compensation owed to these employees.
(Pl.’s Br. 2-3.)
these alleged violations is detailed more fully below.
Each of
Since
the filing of Plaintiff’s amended complaint, two potential op-in
Plaintiffs have filed Consents to Join in this collective
action, Ryan Bowe and Cody Bowe.
(See Consent to Join Lawsuit
[Doc. No. 14-1] 1; Consent to Join Lawsuit [Doc. No. 14-2] 1.)
A.
Unpaid Post-Shift Hours Worked
With respect to the first alleged violation, unpaid postshift hours worked, Plaintiff asserts that Defendants failed to
pay Plaintiff and putative class members for hours spent
performing work duties after their shift ended.
According to
Plaintiff, he and other putative class members reported to work
at Defendants’ centralized Newfield, New Jersey location each
work day at 7:00 a.m., traveled in company vehicles to their
5
respective job site for the day - typically a client’s residence
- and would remain on the job site until approximately 3:30 p.m.
(Id. at 1-2.)
All of these hours, including the travel time,
were compensated by Defendants.
(Id. at 2.)
Plaintiff asserts,
though, that “Defendant considered the workday over once members
of the putative class left the client’s residence.”
(Id.)
Plaintiff represents that “Defendants’ practices and
policies ... required all members of the putative class to
perform additional work duties after services were completed at
the customer’s house[.]”
29.)
(Id.; see also Am. Compl. ¶¶ 25-27,
These duties included transporting the company vehicles,
employees, and supplies, back to the Newfield location;
unloading and cleaning the company vehicles; preparing the
vehicles for use the following day; and restocking deliverables.
(Pl.’s Br. 2; Am. Compl. ¶¶ 26-27.)
Plaintiff contends that he
and the members of the putative class were not paid for all of
the time spent performing the duties that occurred after leaving
the client’s residence, which regularly amounted to 30-90
minutes - and sometimes up to two hours - of additional work
duties each day.
B.
(Pl.’s Br. 2; Am. Compl. ¶¶ 28-30.)
Lunch Break Deductions
As to the second purported FLSA violation, automatic lunch
6
break deductions, Plaintiff asserts that Defendants
“automatically deduct[ed] 30 minutes of paid time from the work
day from all class members as a lunch deduction ... [even] when
no 30-minute bona [] fide meal break was taken.”
Am. Compl. ¶¶ 33, 35.)
(Pl.’s Br. 2;
Plaintiff alleges that Defendants took
this 30 minute deduction from the paychecks of Plaintiff and
putative class members for each shift they worked, regardless of
whether the employee actually took a lunch break.
33.)
(Am. Compl. ¶
Plaintiff further asserts that Defendants did not require
employees to take a lunch break and “did not attempt in any
manner to track whether lunch breaks were taken.”
Am. Compl. ¶ 34.)
(Pl.’s Br. 2;
Plaintiff alleges that he and the members of
the putative class “rarely, if ever, took a bona-fide 30 minute
uninterrupted lunch break” and were consistently “not being paid
for all hours [they] worked” because this 30 minute lunch break
deduction was applied regardless of whether a break was taken.
(Am. Compl. ¶¶ 36-37.)
C.
Calculation of Overtime “Regular Rate”
The final purported FLSA violation Plaintiff alleges here
relates to Defendants’ purported failure to properly calculate
Plaintiff and the putative class members’ “regular rate” of pay
for purposes of computing the overtime compensation due to these
7
employees.
(Pl.’s Br. 2.)
According to Plaintiff, he and the
members of the putative class were not only paid on an hourly
basis but also received compensation in the form of commissions.
Plaintiff alleges that despite paying these commissions,
Defendants “failed to include [those] commission[s] in[] a
‘weighted average’ when determining ... [an employee’s] regular
rate” of pay – the rate that was then used to calculate that
employee’s overtime compensation.
(Am. Compl. ¶ 39.)
As a
result of this failure, Plaintiff asserts that Defendants
improperly paid him and members of the putative class less than
1.5 times their regular rate for overtime because their overtime
rate was based solely on their usual hourly rate.
41.)
(Am. Compl. ¶
Plaintiff contends that Defendants did not calculate
overtime based on all remuneration employees received, (see
Pl.’s Br. 2), and did so on a consistent basis except for weeks
where no commissions were earned or no overtime hours were
worked.
(Am. Compl. ¶ 42.)
III. DISCUSSION
“The FLSA establishes federal minimum-wage, maximum-hour,
and overtime guarantees that cannot be modified by contract” and
“gives employees the right to bring a private cause of action on
8
their own behalf and on behalf of ‘other employees similarly
situated’ for specified violations of the FLSA.”
Genesis
Healthcare Corp. v. Symczyk, ––– U.S. ––––, 133 S. Ct. 1523,
1527 (2013) (citing 29 U.S.C. § 216(b)).
“A suit brought on
behalf of other employees is known as a ‘collective action.’”
Id.
The Third Circuit has explained that, pursuant to 29 U.S.C.
§ 216(b) of the FLSA, “an employee may bring an action against
his employer individually, on his own behalf, and collectively,
on behalf of other ‘similarly situated’ employees.”
Camesi v.
Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 242 (3d Cir. 2013).
The distinction between the collective action mechanism of the
FLSA and the class action mechanism of Federal Rule of Civil
Procedure 23 is that “employees must affirmatively opt-in by
filing written consents with the court” in “order to become
parties to a collective action under” 29 U.S.C. § 216(b), where
Rule 23 class actions require those not wishing to be included
in the class to affirmatively opt-out after the class has been
certified.
Camesi, 729 F.3d at 242-43.
Relevant to deciding the present motion, the Third Circuit
has recognized that district courts in this “Circuit follow a
two-step process for deciding whether an action may properly
proceed as a collective action under the FLSA.”
9
Id. (citing
Zavala v. Wal–Mart Stores Inc., 691 F.3d 527, 535 (3d Cir.
2012)). 4
The first step of this process - commonly referred to
as “conditional certification” - is “not really a certification”
but “is actually the district court's exercise of [its]
discretionary power, upheld in Hoffmann–La Roche [Inc. v.
Sperling, 493 U.S. 165, 110 S. Ct. 482, 107 L.Ed.2d 480 (1989)],
to facilitate the sending of notice to potential class members,
and is neither necessary nor sufficient for the existence of a
representative action under [the] FLSA.”
Zavala, 691 F.3d at
536 (citations and internal quotations omitted).
For purposes
of this initial stage, the Third Circuit has adopted the “modest
factual showing” standard which requires “a plaintiff ... [to]
produce some evidence, ‘beyond pure speculation,’ of a factual
nexus between the manner in which the employer’s alleged policy
affected h[im] and the manner in which it affected other
employees.”
Zavala, 691 F.3d at 536 n.4 (citations omitted). 5
4
As recognized by the Third Circuit “this two-tier approach,
while ‘nowhere mandated, ... appears to have garnered wide
acceptance[,]’” and the Court of Appeals has “implicitly
embraced this two-step approach, and ... affirm[ed] its use[.]”
Zavala, 691 F.3d at 536 (citation omitted).
5
To explain the distinction between the first and second
steps of this process under the FLSA, the Third Circuit,
borrowing from the Second Circuit, clarified that the purpose of
the initial step is to “determin[e] whether ‘similarly situated’
plaintiffs do in fact exist, while at the second stage, the
10
So long as the plaintiff satisfies his burden at this
initial stage, “the court will ‘conditionally certify’ the
collective action for the purpose of facilitating notice to
potential opt-in plaintiffs and conducting pre-trial discovery.”
Camesi, 729 F.3d at 243.
After discovery, the second step in
the process requires the Court to “‘make[] a conclusive
determination as to whether each plaintiff who has opted in to
the collective action is in fact similarly situated to the named
plaintiff.’”
Id. (citing Symczyk v. Genesis Healthcare Corp.,
656 F.3d 189, 193 (3d Cir. 2011), rev'd on other grounds,
Symczyk, 133 S. Ct. at 1526).
The second stage of this process
is typically “triggered by the plaintiffs’ motion for ‘final
certification,’ by the defendants’ motion for ‘decertification,’
or, commonly, by both.”
Camesi, 729 F.3d at 243.
Where a
plaintiff is successful in satisfying the heavier burden imposed
at the second stage of the process, then the case may proceed on
the merits as a collective action.
Id.
Importantly, “[i]t is
possible for a class to be certified at stage one but fail
certification at stage two.
Granting a conditional
District Court determines whether the plaintiffs who have opted
in are in fact ‘similarly situated’ to the named plaintiffs.”
Zavala, 691 F.3d at 536 n.4 (citing Myers v. Hertz Corp., 624
F.3d 537, 555 (2d Cir. 2010)) (internal quotations omitted).
11
certification in stage one is not a final or permanent
decision.”
Garcia v. Freedom Mortg. Corp., 790 F. Supp. 2d 283,
286 (D.N.J. 2011).
IV.
ANALYSIS
Plaintiff’s motion seeks conditional certification under
the first step of the FLSA’s collective action process.
This
step is sometimes referred to as the “notice stage” because the
Court is not actually certifying a class, but rather exercising
its discretionary power to facilitate notice to potential class
members.
See Zavala, 691 F.3d at 536.
The Court is cognizant
that in deciding Plaintiff’s motion, the Court is not being
asked to evaluate the merits of Plaintiff’s claimed FLSA
violations.
See, e.g., Goodman v. Burlington Coat Factory, No.
11–4395, 2012 WL 5944000, at *5 (D.N.J. Nov. 20, 2012) (“At this
stage, the Court's role is not to evaluate the merits of
Plaintiffs' claim[.]”); Steinberg v. TD Bank, N.A., No. 10–CV–
5600, 2012 WL 2500331, at *5 (D.N.J. June 27, 2012) (“The court
does not consider the merits of the dispute at this time, and
the plaintiff must only demonstrate that the potential class
members’ ‘positions are similar, not identical,’ to his own.”)
(citations omitted).
Rather, the Court must determine whether
12
other “similarly situated” employees, i.e., potential
plaintiffs, do in fact exist, such that the Court should
facilitate notice as Plaintiff requests.
See Zavala, 691 F.3d
at 536 n.4.
In making this determination, the Court applies a “fairly
lenient standard” which only requires Plaintiff to make a
“modest factual showing” that he is similarly situated to other
employees.
Camesi, 729 F.3d at 243; see also Afsur v. Riya
Chutney Manor LLC, No. 12–03832, 2013 WL 3509620, at *2 (D.N.J.
July 11, 2013) (“The determination, moreover, ‘is made using a
fairly lenient standard, and typically results in “conditional
certification” of a representative class.’”) (citation omitted).
To satisfy this burden, Plaintiff must “produce some evidence,
‘beyond pure speculation,’ of a factual nexus between the manner
in which the employer’s alleged policy affected h[im] and the
manner in which it affected other employees.”
Zavala, 691 F.3d
at 536 n.4 (citations omitted).
Here, Plaintiff alleges three distinct FLSA violations
relating to: (1) unpaid post-shift time spent performing work
duties; (2) automatic 30-minute lunch break deductions taken
from each work shift; and (3) improper calculation of an
employee’s regular rate of pay when computing his overtime
13
compensation.
In support of his request for conditional
certification, Plaintiff argues that “he is similarly situated
to all other laborers and foremen (the ‘putative class’) because
he, like all members of the putative class, was subjected to
[these] three distinct wage and hour violations of the
Defendants.”
(Pl.’s Br. 1.)
Plaintiff further asserts that Defendants’ conduct that
allegedly violated the FLSA “was based on official policies of
[Enviro Pro] which were applied equally to the entire putative
class.”
(Id.)
Plaintiff relies on testimony and declarations
offered by himself and the two Opt-In Plaintiffs, Ryan Bowe and
Cody Bowe, as well as testimony from Defendants which
demonstrates that the challenged policies were official policies
of Enviro Pro that applied equally to all members of the
putative class.
(Id.)
To demonstrate that other “similarly situated” employees to
Plaintiff exist, Plaintiff was required to make a modest factual
showing by producing some evidence, beyond pure speculation,
that there is a factual nexus between the manner in which Enviro
Pro’s alleged policies affected Plaintiff and the manner in
which they affected other employees.
243; Zavala, 691 F.3d at 536 n.4.
14
See Camesi, 729 F.3d at
Based on the record presently
before the Court on this motion, Plaintiff has met his burden,
and the Court finds that this case should be conditionally
certified at this stage of the litigation. 6
The Court is
satisfied that the evidence at this point shows that similarly
situated individuals to Plaintiff do in fact exits.
Following
issuance of notice here, at the second stage of the process, the
Court will independently assess “whether the plaintiffs who have
opted in are in fact similarly situated to the named plaintiff.”
Zavala, 691 F.3d at 536, n.4.
In this case, Plaintiff worked in the capacity of “Foreman
and/or Service Manager” and has shown that his job
responsibilities included “performing the same work as a laborer
(i.e. installation and waterproofing services), overseeing the
quality of work or other laborers, dealing with customers on the
job site, and handling payments from customers.”
(Pl.’s Br. -
SOF ¶¶ 2-3); (see also Dep. Of Jason Bowe, Ex. B to Mot., 30:431:18; Dep. of Michael Troyner, Ex. A to Mot., 14:12-15:21.)
6
To be clear, the Court is not, at this time, weighing the
merits of the purported FLSA violations alleged in the amended
complaint. Rather, the Court has simply found that Plaintiff
has made a modest factual showing that to the extent that
Defendants’ allegedly unlawful compensation practices affected
Plaintiff, they affected other potential collective action
plaintiffs in the same or a similar way. See Goodman, 2012 WL
5944000, at *5.
15
Furthermore, Plaintiff has established that “the foreman’s and
laborers’ job duties regarding installation, waterproofing, and
manual labor were the same.”
(Pl.’s Br. – SOF ¶ 4.)
Defendant
Troyner, owner and operator of Enviro Pro, testified that both
laborers and foremen perform the same functions and that the
foremen are considered “working forem[e]n”.
Troyner, Ex. A to Mot., 15:12-15.)
(Dep. of Michael
Additionally, both foremen
and laborers shared the same work schedule – meeting at the
Newfield location at 7:00 a.m. and working at a client’s
residence until 3:30 p.m.
(Pl.’s Br. - SOF ¶ 5) (citing Dep. of
Cynthia Troyner – 30(b)(6) Corporate Designee, Ex. D. to Mot.,
18:12-19.)
They also traveled to, and returned from, their
assigned job sites together, and thus worked on each respective
job for the same amount of time.
(Pl.’s Br. - SOF ¶ 6) (citing
Dep. of Cynthia Troyner – 30(b)(6) Corporate Designee, Ex. D. to
Mot., 65:2-9.)
Furthermore, Plaintiff has demonstrated that he is
similarly situated to other members of the putative class (i.e.,
other foremen and laborers) by producing evidence that indicates
he and members of the putative class were subject to the same
employment policies and practices of Defendants which applied
across the board to both foremen and laborers.
16
For example,
with respect to the issue of unpaid post-shift hours worked,
Plaintiff points to testimony by Barbara Ogonowski, Enviro Pro’s
Office Manager, which establishes “that Defendants’ policy was
to pay their workers from their time of arrival at Defendants’
Newfield location until the time of departure [from] the
client’s residence.”
15.)
(Pl.’s Br 10; Statement of Facts ¶¶ 12-13,
Specifically, Ms. Ogonowski testified that the policy of
Enviro Pro was to have the foreman on each assigned job send a
text message to Defendant’s Newfield location detailing the
hours worked by both the laborers and the foremen at the time
the crew departed the client’s residence.
(Dep. Of Barbara
Ogonowski, Ex. E to Pl.’s Br., 28:2-29:14; see also Ex. O-1,
“Service Quality and Customer Satisfaction” Checklist.)
She
further testified that it was Defendants’ practice to record
employee hours and compensate them accordingly, based on these
text messages which indicated the amount of hours worked as of
the time of departure.
(Dep. Of Barbara Ogonowski, Ex. E to
Pl.’s Br., 28:2-29:14.)
It is clear, however, from the declarations offered by
Plaintiff, and the Opt-In Plaintiffs Cody Bowe and Ryan Bowe,
that the laborers and foremen had additional work duties to
perform after departing a client’s residence which included
17
transporting company vehicles and supplies back to the Newfield
location, unloading and cleaning the vehicles for the next day,
and restocking new materials.
(See e.g., Decl. of Jason Bowe,
Ex. F ¶¶ 4-8, 22; Decl. of Ryan Bowe, Ex. G ¶¶ 4-9, 23; Decl. of
Cody Bowe, Ex. H ¶¶ 4-9, 20.)
Moreover, it is clear from the
record that neither foremen, nor laborers were compensated for
this additional time spent performing work duties. 7
The record
further demonstrates that Defendants applied this policy equally
upon Plaintiff and all members of the putative class.
Correspondingly, Plaintiff has also produced evidence
beyond mere speculation that Defendants’ policies and practices
regarding (1) automatic 30-minute lunch break deductions and (2)
improper calculation of employees’ regular rate of pay for
overtime purposes, were applied equally to Plaintiff and to all
other foremen and laborers employed by Enviro Pro.
For example,
Defendants’ corporate designee, Cynthia Troyner, testified that
employees – laborers and foremen alike - were compensated based
on arrival at the Newfield location at 7:00 a.m. and departure
from the client’s residence at 3:30 p.m. with a 30-minute
deduction taken and designated as a lunch break for all
7
The Court reiterates that it is not making a determination
at this time of whether this alleged conduct violated the FLSA.
18
employees when their total hours for the day were reported.
(Dep. of Cynthia Troyner – 30(b)(6) Corporate Designee, Ex. D.
to Mot., 75:8-13; see also id. at 24:8-25:8.)
Plaintiff, Ryan
Bowe, and Cody Bowe all provided sworn declarations that Enviro
Pro “automatically deduced 30 minutes of paid time every day
from [their] paycheck[s] for each shift [they] worked, whether
or not a lunch break was taken” even though these employees
“rarely, if ever, took a bona-fide 30 minute uninterrupted lunch
break.”
(See e.g., Decl. of Jason Bowe, Ex. F ¶¶ 14, 16; Decl.
of Ryan Bowe, Ex. G ¶¶ 15, 17; Decl. of Cody Bowe, Ex. H ¶¶ 15,
17.)
Similarly, Cynthia Troyner also testified that all
employees, laborers and foremen alike, were eligible to receive
commissions in addition to their standard hourly pay, but that
their “[c]ommission[s] ha[d] ... nothing to do with [their]
overtime” compensation.
(Dep. of Cynthia Troyner – 30(b)(6)
Corporate Designee, Ex. D. to Mot., 34:19-35:14, 37:13-18,
43:11-44:8.)
Further, the declarations of Plaintiff and Ryan
Bowe, along with the attached copies of their respective
paystubs, mathematically demonstrate that Defendants did not
include the commissions earned by either foremen or laborers
19
when calculating the rate of their overtime compensation. 8
(See
e.g., Decl. of Jason Bowe, Ex. F ¶¶ 19-21; Decl. of Ryan Bowe,
Ex. G ¶¶ 20-22.)
In summary, the Court is satisfied that Plaintiff met his
burden to make a modest factual showing that he is similarly
situated to Defendants’ other employees – both laborers and
foremen – because these employees performed the same type of
work and Plaintiff served as a foreman at Enviro Pro.
With
respect to the three purported FLSA violations alleged in the
complaint, the record at this stage of the litigation
demonstrates that Plaintiff and all members of the putative
class were subject to the same employment policies and practices
imposed by Defendant and were compensated in a similar fashion,
and that similarly situated plaintiffs do in fact exist.
Therefore, the Court will conditionally certify this action as a
collective action under the FLSA and will therefore facilitate
notice to putative class members.
V.
NOTICE
Plaintiff’s motion for conditional certification also
8
Again, the Court’s findings in this Opinion should not be
construed as an assessment of the merits of Plaintiff’s claims
that the alleged conduct violated the FLSA.
20
requests that the Court “order facilitated notice by requiring
Defendants to provide the last known contact information for all
individuals who were employed as foremen and/or laborers from
March 11, 2010 ... to the present” in order to permit Plaintiff
to provide notice to each such individual.
(Pl.’s Br. 14.)
Plaintiff further requests that the Court order the parties to
meet and confer regarding the form and timing of the notice and
provide the Court with a copy of the agreed upon draft notice
and the details as to the method of notice all within fifteen
(15) days of the date of this Opinion.
(Id.)
Plaintiff
suggests that if the parties are unable to agree upon the
language for the proposed form of notice, each party will submit
its proposed notice within fifteen (15) days of the Court’s
Opinion.
The Court will grant Plaintiff’s request that Defendants
provide the last known contact information for all individuals
who were employed by Defendants as foremen and/or laborers from
March 11, 2010 until the present.
The Court will also grant
Plaintiff’s request that the parties be ordered to meet and
confer and submit to the Court a proposed agreed upon form of
notice within fifteen (15) days of the date of this Opinion.
To
the extent the parties are unable to agree and submit a proposed
21
agreed upon notice within that time, the Court will permit each
party to submit their own proposed notice within fifteen days of
the expiration of the initial fifteen day period set forth
above.
VI.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for
conditionally certification of this case as a collective action
under the FLSA is granted.
An Order consistent with this
Opinion will be entered.
Date: December 4, 2013
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
22
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