ABOUD et al v. THE CITY OF WILDWOOD
Filing
22
OPINION FILED. Signed by Magistrate Judge Joel Schneider on 5/17/13. (js)
[Doc. No. 3]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ELIAS ABOUD, RICHARD ADAIR, et
al., in their individual
capacity and as a
representative of other
similarly situated employees
(police officers of the City
of Wildwood),
Civil No. 12-7195 (JS)
Plaintiffs,
v.
THE CITY OF WILDWOOD,
Defendant.
OPINION1
On November 20, 2012, plaintiffs Elias Aboud, Richard Adair,
Christopher Fox, Kenneth Phillips and Paul Zielinski, current or
former Wildwood police officers, filed their complaint against the
City of Wildwood (“Wildwood”).2
On behalf of themselves and those
similarly situated, plaintiffs seek to redress Wildwood’s alleged
violations of the Fair Labor Standards Act (“FLSA”), and seek to
conditionally certify a class pursuant to 29 U.S.C. §216(b).3
The
1
Pursuant to 28 U.S.C. §636©, the parties consented to the
jurisdiction of this Court to hear the case. [Doc. No. 14].
2
On April 4, 2013, the Court approved Aboud’s “Stipulation
and Consent Form for Removal as Plaintiff.” [Doc. No. 15].
3
Two other claims are asserted in the complaint that are not
the direct subject of this Opinion: (1) plaintiffs seek a
declaration that Article XX, ¶5 in their Collective Bargaining
Agreement violates the FLSA, and (2) plaintiff Zielinski claims he
was “illegally disciplined and terminated from employment in
violation of the FLSA.” Complaint ¶3.
essence of plaintiffs’ claim is that Wildwood failed to pay them
for wages and overtime compensation mandated by the FLSA.
Presently
before
the
Court
is
plaintiffs’
“Motion
to
Conditionally Certify FLSA Collective Action and Send Notice to the
Class.” [Doc. No. 3].
Wildwood opposes the motion.
The Court
exercises its discretion to decide plaintiffs’ motion without oral
argument.
Fed. R. Civ. P. 78; L. R. Civ. P. 78.1.
For the reasons
to be discussed, plaintiffs’ motion is GRANTED in part and DENIED
in part.
As to plaintiffs’ main requests, the Court grants
conditional certification of their collective action and approves
their proposed Notice/Consent to Join form with two additions. The
Court denies plaintiffs’ request that their notice be posted at
work and that a follow-up postcard be sent.
Background4
Plaintiffs are members of the Cape May County Lodge No. 7
Fraternal Order of Police (“FOP”).
The FOP is the exclusive
collective negotiations agent for all Lieutenants, Sergeants and
Police Officers employed by the Wildwood Police Department (“WPD”).
On May 27, 2011, Wildwood and the FOP entered into a Collective
Bargaining Agreement (“CBA”) in effect from January 1, 2012 through
December 31, 2014.
Paul Zielinski Certification (November 20,
4
Plaintiffs did not conduct any formal discovery before they
filed their present motion. The motion was filed the day after the
complaint was filed.
2
2012) ¶¶1-2. (“Zielinski Cert.”).5 Wildwood employs approximately
thirty-three (33) full-time permanent police officers.
¶10.
Complaint
Plaintiffs are hourly employees and allege Wildwood “failed
and/or refused to pay them and a class of similarly situated police
employees for the time worked before the start of their official
shift and time worked after the end of their official shift for
years.”
Brief at 11. [Doc. No. 3].
Wildwood has three (3) shifts
for its police officers:
Shift “A”
11 p.m. to 7 a.m.
Shift “B”
7 a.m. to 3 p.m.
Shift “C”
3 p.m. to 11 p.m.
Zielinski Cert. ¶5.
Wildwood requires its officers to “clock in
and out” to account for their hours worked.6
The CBA requires the
officers to work forty (40) hours per week.
Per the CBA, work in
excess of forty (40) hours is compensated at time and one-half
(1½).
The CBA specifically provides:
ARTICLE XX
WORK HOURS AND OVERTIME
A.
The workweek shall consist of forty (40) hours.
Should the City decide to alter the current schedule
format (absent an emergency), the City agrees to provide
the Lodge a minimum of thirty (30) days notice of the
change upon its members prior to the implementation of
the change. Shifts shall be “steady” shifts, as assigned
by the City.
5
The CBA is attached as Exhibit B to plaintiffs’ motion.
6
“Wildwood utilizes a computerized system (“Kronos”) which
tracks the exact time an employee clocks in and clocks out.” Brief
at 13 (citing Zielinski Cert. ¶3).
3
B.
Overtime work shall be compensated as follows:
Work in excess of forty (40) hours shall be compensated
at time and one-half (1½) which compensation may be taken
in dollars or compensatory time. Sick leave and holidays
taken off shall not be computed toward the threshold of
time and one-half (1½) pay in the workweek during which
the days are taken.
CBA at Article XX (p. 42).
As to the instant motion, plaintiffs present two FLSA claims.
The first claim relates to Wildwood’s requirement that police
officers clock in fifteen minutes before their shift starts.
This
requirement is documented in Article XX.C (p.44) of the CBA which
reads:
5.
The current practice of Uniformed Officers reporting
to duty fifteen (15) minutes prior to the start of their
tour shall be made a part to this Agreement. Officers
shall report, ready for assignment, at the time for
briefings and announcements. No extra compensation shall
be paid for this time and it shall not count as work
time.
6.
Each officer on an eight (8) hour duty shift shall
be entitled to breaks from work totaling one (1) hour.
Unless otherwise specifically approved by the Officer’s
immediate supervisor, there shall be a half-hour meal
break, and two (2) fifteen (15) minute “coffee breaks.”
Officers shall be subject to recall from these breaks and
shall make their whereabouts known to their superior upon
taking a break.
Plaintiffs allege the fifteen minute requirement violates the FLSA
because it:
requires its police officers to report to work 15 minutes
before their shift but does not pay the officers for this
required report and work time. Defendant requires it[s]
police officer employees to clock in 15 minutes before
his or her scheduled official shift. Defendant, however,
does not pay the police officer for this “off-the-clock”
time.
4
Brief at 16.
Plaintiffs allege that although they are required to
clock in fifteen minutes before their scheduled start time, and the
FLSA requires they be paid for the time, the time is not paid.
Plaintiffs allege Wildwood violates the FLSA because it does not
pay overtime for the fifteen minutes police officers are required
to clock in before their shift formally starts.7
Plaintiffs’
second
main
contention
“suffered or permitted” overtime.
relates
to
alleged
Plaintiffs allege they are
regularly required to perform work after their shift ends because
of unanticipated events that occur during the shift.
However,
plaintiffs claim Wildwood does not pay them for work beyond the end
of their shift unless the time is “pre-approved.”
¶14.
Zielinski Cert.
Plaintiffs allege this violates the FLSA because although
they are required to work overtime, and Wildwood permits the
overtime work to be performed, they are not paid for the overtime.
Plaintiffs
allege,
“[d]efendant’s
practice
of
requiring
pre-
approved time in order to be compensated for time actually worked
circumvents the mandates under the FLSA requiring compensation for
all work suffered or permitted by the employer.”
Brief at 19-20.
Wildwood raises several arguments in opposition to plaintiffs’
request for conditional certification.
7
First, Wildwood argues
The fact that Wildwood enforces this policy is evidenced by
the disciplinary action taken against Zielinski.
Although
Zielinski clocked in before his formal start time he was
disciplined because he did not always arrive 15 minutes early. See
generally Transcript of November 12, 2012 Disciplinary Hearing,
Exhibit B to Plaintiffs’ Motion. (“Tr.”).
5
certification should be denied because “not all putative class
members work in the same ‘corporate department, division and
location’
or
perform
similar
jobs.”
(“Opposition”) at 2. [Doc. No. 8].
Opposition
to
Motion
Second, Wildwood alleges
plaintiff Adair “has stated that he does not wish to be involved in
this lawsuit.”
Id.
Third, Wildwood alleges plaintiff Phillips
signed a release in a separate lawsuit releasing Wildwood from all
employment claims, including claims made in this lawsuit.
2-3.
Id. at
Fourth, Wildwood alleges that since plaintiffs Aboud and Fox
have not submitted affidavits, there is no evidence they opted in
as plaintiffs.
work week.
Fifth, Wildwood claims plaintiffs misrepresent the
It claims the WPD has a 35-hour work week, rather than
a 40-hour work week, and that even if plaintiffs work an extra 15
minutes per day, they only work 36.25 hours per week.
Id. at 3.
Last, Wildwood argues plaintiffs do not supply evidence to support
their claim that they can be called away from break or lunch to
handle calls.
Id. at 3-4.
The Court will address each of
defendant’s arguments infra.
Discussion
1.
Conditional Certification
Pursuant to 29 U.S.C. § 216(b), the FLSA authorizes employees
to bring a claim on behalf of other employees “similarly situated”
who are affected by an employer’s common policy.
Co., 743 F. Supp. 2d 380, 386 (D.N.J. 2010).
6
White v. Rick Bus
The term “similarly
situated” is not defined in the FLSA.
Kronick v. Bebe Stores,
Inc., No. 07-4514 (RBK), 2008 WL 4546368, at *1 (D.N.J. Oct. 2,
2008). The Third Circuit has noted that, while “[n]either FLSA nor
the ADEA define the term ‘similarly situated,’” a representative,
but not exhaustive, list of relevant factors to consider includes
“whether
the
plaintiffs
are
employed
in
the
same
corporate
department, division and location; advanced similar claims [];
sought substantially the same form of relief; and had similar
salaries and circumstances of employment.”
Ruehl v. Viacom, Inc.,
500 F.3d 375, 388 n.17 (3d Cir. 2007).
In determining whether a suit should proceed as a collective
action under the FLSA courts use a two stage analysis.
Symczyk v.
Genesis HealthCare Corp., 656 F.3d 189, 192 (3d Cir. 2011). During
the first stage the court “makes a preliminary determination
whether
the
provisionally
plaintiff.”
employees
enumerated
categorized
as
in
similarly
the
complaint
situated
Id. at 192 (citations omitted).
to
can
the
be
named
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.
Steinberg v. TD Bank,
N.A., No. 10-cv-5600 (RMB/JS), 2012 WL 2500331, at *5 (D.N.J. June
27, 2012)(citations omitted); Shakib v. Back Bay Rest. Grp., Inc.,
No. 10-CV-4564 (DMC)(JAD), 2011 WL 5082106, at *2 (D.N.J. Oct. 26,
2011) (“The merits of the plaintiff’s claim need not be evaluated
and discovery need not be completed in order for such notice to be
7
granted and disseminated.”).
The Third Circuit utilizes a “modest factual showing” standard
to determine if employees are “similarly situated.”
Symczyk, 656
F.3d at 192-93 (stating that the modest factual showing standard
“best comports with congressional intent and with the Supreme
Court's directive that a court ‘ascertain[] the contours of [a
collective] action at the outset.’”)(quoting Hoffmann–La Roche Inc.
v. Sperling et al, 493 U.S. 165, 172)).
The modest factual showing
analysis is performed using a lenient standard. Steinberg, 2012 WL
2500331, at *5 (citations omitted). Although a lenient standard is
used, the standard requires “some evidence beyond mere speculation
that the defendant’s policy affected other employees.”
Id.;
Symczyk, 656 F.3d at 193 (requiring a “factual nexus between the
manner
in
which
the
employer’s
alleged
policy
affected
[the
plaintiff] and the manner in which it affected other employees”).
A plaintiff cannot rely solely on the allegations in the complaint,
and must instead provide factual support in the form of pleadings,
affidavits, deposition testimony, or other supporting documents.
Steinberg, 2012 WL 2500331, at *6.
If plaintiff carries his burden at the first stage, “the court
will ‘conditionally certify’ the collective action for the purposes
of notice and pretrial discovery.” Symczyk, 656 F.3d at 192.
When
this occurs district courts have the authority to supervise the
notification process, including how much time plaintiffs are given
to notify class members, how class members are to be notified, and
8
what contact information plaintiffs are given.
Steinberg, 2012 WL
2500331, at *6.
In the second stage of the certification analysis, which
occurs after discovery and with a more substantial record, a court
determines
“whether
each
plaintiff
who
has
opted-in
to
the
collective action is in fact similarly situated to the named
plaintiff.”
Symczyk, 656 F.3d at 193.
At the second stage the
defendant can move to decertify the class, and the burden of proof
on the plaintiff is higher than in the first stage.
Manning v.
Goldbelt Falcon, LLC, No. 08-3237 (JEI), 2010 WL 3906735, at *2
(D.N.J. Sept. 29, 2010).
At this second stage the court considers
whether individualized differences among the plaintiffs make the
claims more suitable for individualized, as opposed to class
treatment.
Steinberg, 2012 WL 2500331, at *7.
In stage two, if
the court determines the opt-in plaintiffs are similarly situated,
then
the
case
may
proceed
to
trial
Manning, 2010 WL 3906735, at *2.
as
a
collective
action.
If the court determines that the
plaintiffs are not similarly situated then the class will be
decertified or split into subclasses.
Id.
Based on the current record the Court finds the case should be
conditionally certified.
members
are
similarly
To establish that collective action
situated
at
this
stage
of
the
case,
plaintiffs merely need to show “a modest factual nexus between
their situation and that of the proposed class members.”
742 F. Supp. 2d at 387.
White,
This means that plaintiffs “must produce
9
some evidence, beyond pure speculation, of a factual nexus between
the manner in which the employer’s [i.e. Wildwood] alleged policy
affected
[them]
employees.”
omitted).
and
the
Symczyk,
manner
665
F.3d
in
which
at
193
it
affected
(internal
other
quotations
Plaintiffs have shown that they are similarly situated
to the putative class because as it pertains to the key employment
terms involved in this case, plaintiffs and all members of the
putative class are subject to the same requirements.
plaintiffs
have
different
jobs
within
the WPD
uniformed officers and members of the FOP.
they
Although
were all
As a result, all
plaintiffs and the putative class are or were bound by the same
CBA.
Zielinski Cert. ¶2. Pursuant to the CBA all uniformed
officers are required to report to work fifteen minutes before
their scheduled shift starts.
fifteen minute time period.
Officers are not paid for this
Id. ¶¶ 6, 17.
Further, the CBA
applies to Lieutenants, Sergeants and Police Officers.
5.
Therefore,
plaintiffs
and
all
uniformed
See CBA at
Wildwood
police
officers are subject to the requirement that officers report to
work fifteen minutes before their shift starts.
At this stage of
the case the fact that Zielinski was temporarily assigned as a
dispatcher is not determinative.
This is true because at all
relevant times Zielinski was subject to the same work requirements
as the other plaintiffs and the putative class.
Consequently,
there is sufficient evidence to demonstrate a modest factual nexus
between the situation of plaintiffs and other members of the
10
putative class.8
The terms of the parties’ CBA do not override
conflicting FLSA requirements.
See 29 C.F.R. §785.8; Abendschein
v. Montgomery County, Md., 984 F. Supp. 356, 359-361 (D. Md. 1997).
See also Martino v. Michigan Window Cleaning Co., 327 U.S. 173,
177-78 (1946); Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707
(1945).
Wildwood’s
arguments
in
certification are not persuasive.
opposition
to
conditional
One, it is true that not all
plaintiffs have the same job title.
However, for purposes of
plaintiffs’ motion plaintiffs and the putative class are “similarly
situated” because they are subject to the same work requirements
(i.e., CBA) that allegedly violate the FLSA.
Two, Wildwood argues
plaintiff Adair “stated that he does not wish to be involved in
this lawsuit.”
Opposition at 2.
However, Wildwood supplied no
competent proof to support its allegation. The fact that Adair has
not moved to dismiss his claim, unlike former plaintiff Aboud,
demonstrates he does not intend to dismiss his claims.
In any
event, Wildwood’s argument is belied by the fact that Adair filed
8
Although the effective date of the CBA is January 1, 2012,
it appears the “15 minute policy” was in effect before this date.
See CBA at Article XXX.C.5 (p. 44).
(“The current practice of
Uniformed Officers reporting to duty fifteen (15) minutes prior to
the start of their tour shall be made a part to this Agreement.”).
Also, Detective Sergeant Kenneth Gallagher testified at Zielinski’s
November 12, 2012 disciplinary hearing that the practice of police
officers being required to show up fifteen minutes before their
assigned shift has been in effect “a number of years.” Tr. at
44:17-21. To date Wildwood has not challenged plaintiffs’
contention that the “15 minute policy” was in effect as of November
20, 2009.
11
a Consent to Join Form. [Doc. No. 9-6].
conditional
certification
should
be
Three, Wildwood argues
denied
because
Phillips signed a release in a separate lawsuit.
of
individualized
proof
and
defenses
are
WL 2500331, at *8.9
However, “issues
more
addressed at the second stage of certification.”
plaintiff
appropriately
Steinberg, 2012
Four, even if Aboud and Fox did not submit
affidavits, this is not fatal to conditional certification.
A
separate affidavit from each named or opt-in plaintiff is not
required. In addition, and as discussed herein, plaintiffs’ proofs
demonstrate that plaintiffs and the putative class are similarly
situated.
Further, Aboud and Fox also filed Consent to Join Forms
[Doc. No. 9-6].
Wildwood’s
most
substantive
argument
is
that
conditional
certification should be denied because its police officers do not
work
forty
requirements
hours
are
per
week
and,
inapplicable.
therefore,
Wildwood
FLSA’s
argues
overtime
that
police
officers work five 8-hour shifts per week and each shift includes
a 30-minute lunch break and two 15-minute breaks.
As a result,
Wildwood contends officers are only scheduled to work thirty-five
hours per week.
Opposition at 3.
Wildwood argues that even if the
Court were to include the fifteen minute early arrival time in an
officer’s work week, the total time worked would only be 36.25
hours per week.
9
Id.
Plaintiffs argue that short breaks, like
Phillips also signed a Consent to Join Form. [Doc. No. 9-6].
12
those provided for the WPD, are customarily considered working
hours under the FLSA.
Plaintiffs further argue that because
officers are not completely relieved from duty during their meal
break the thirty minute break must also be counted as hours worked.
Therefore, plaintiffs argue, police officers work forty and not
thirty-five hours per week.
As a result, plaintiffs argue the
fifteen minute early arrival time is overtime pursuant to the FLSA.
Plaintiffs’ Letter Reply at 6. [Doc. No. 9].10
An employer cannot require FLSA protected employees to work
more than forty hours per week without paying the employee overtime
compensation for any hours worked in excess of forty hours.
employee
works
less
than
forty
hours
protections of the FLSA are inapplicable.
per
week
the
If an
overtime
29 U.S.C. § 207(a).
In
this instance, the CBA provides “the workweek shall consist of
forty (40) hours.”
CBA at 41.
The CBA also provides that officers
are allowed one 30-minute meal break and two 15-minute “coffee
breaks.”
However, “officers shall be subject to recall from these
breaks and shall make their whereabouts known to their superior
upon taking a break.”
Id. at 44.
10
There is no language in the CBA
Plaintiffs’ argument that they are required to work to the
official end of their shift is not free from doubt. The record is
not entirely clear whether plaintiffs’ work starts and ends “a
quarter of to a quarter after the shift.” Tr. 91:4-7; 114:17-24.
But see Zielinski Cert. (December 26, 2012) ¶¶ 5-6. This factual
dispute presents an issue that will be sorted out in discovery and
at the second stage of the certification analysis. This possible
factual dispute does not mandate that conditional certification be
denied.
13
indicating these breaks are not compensable.
To the contrary,
pursuant to 29 C.F.R. § 785.18:
Rest periods of short duration, running from 5 minutes to
about 20 minutes . . . are customarily paid for as working
time. They must be counted as hours worked. Compensable time
of rest periods may not be offset against other working time
such as compensable waiting time or on-call time.
Because plaintiffs’ two fifteen minute “coffee breaks” are of short
duration the Court rejects Wildwood’s arguments and concludes that
for present purposes they are compensable.
See Brock v. Claridge
Hotel & Casino, 664 F. Supp. 899, 908 (D.N.J. 1986) (determining
that additional short breaks over bona fide meal break was included
in the total number of compensable hours worked).
The Court also concludes for present purposes that plaintiffs’
thirty minute meal break is compensable.
785.19 bona
fide
meal periods
are
Pursuant to 29 C.F.R. §
not considered
However, to be a bona fide meal period an
work
time.
employee must be
completely relieved from duty for the purpose of eating regular
meals.
any
“The employee is not relieved if he is required to perform
duties,
whether
active
or
inactive,
while
eating.”
Id.
Although the Third Circuit has not addressed the issue, most other
circuit courts have adopted the “predominant benefit test” to
determine whether a meal break is “bona fide.”
Lugo v. Farmer’s
Pride Inc., 802 F. Supp. 2d 598, 613 (E.D. Pa. 2011).
Pursuant to
the predominant benefit test “a meal period ... is compensable if
an employee is ‘perform[ing] activities predominantly for the
benefit of the employer.’”
Id.
Here, the CBA explicitly provides
14
that officers shall be subject to recall during their meal break
and there is no indication the break is not compensable time.
at 44.
need
CBA
Because at this stage of the proceeding plaintiffs only
to
produce
“some
evidence”
to
support
conditional
certification, and for the reasons already discussed, the Court
concludes for present purposes that Wildwood’s police officers do
not have a bona fide meal break.
Therefore, the thirty minute meal
break is compensable. Consequently, for present purposes the Court
concludes that Wildwood’s police officers work forty hours per
week.
Most of the parties’ arguments focus on plaintiffs’ fifteen
minute claim.
However, plaintiffs allege a second FLSA violation
that must be addressed.
Although plaintiffs’ proofs on the issue
are not compelling, the Court will also conditionally certify
plaintiffs’ claim that they are denied overtime pay for “suffered
or permitted” time.
is work time.”
“Work not requested but suffered or permitted
29 C.F.R. §785.11.
If an employer “knows or has
reason to believe that ... work is being performed, he must count
the time as hours worked.”
29 C.F.R. §785.12.
The Second Circuit
has held that if an employer knows or has reason to know that an
employee is working overtime, it cannot deny compensation even
where the employee fails to claim overtime hours.
Holzapfel v.
Town of Newburgh, N.Y., 145 F.3d 516, 524 (2d Cir. 1998), cert.
denied,
525
U.S.
1055
(1998);
Johnson
v.
RGIS
Specialists, 554 F. Supp. 2d 693, 709 (E.D. Tex. 2007).
15
Inventory
See also
Scott v. City of New York, 592 F. Supp. 2d 501, 504 (S.D.N.Y.
2008).
The Second Circuit has also noted that an employer who has
knowledge that an employee is working, and who does not want the
work to be done, has a duty to make every effort to prevent its
performance.
Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d
Cir. 2008). Nevertheless, only identifying a few instances of offthe-clock work is insufficient to establish that the work was
“suffered or permitted” under the FLSA.
Plaintiffs must establish
a pattern or practice of employer acquiescence to such work. Burch
v. Qwest Communications Intern., Inc., 677 F. Supp. 2d 1101, 1131
(D. Minn. 2009).
Plaintiffs’ claim that although they are required to work
overtime, and Wildwood knowingly permits this to occur, Wildwood
only pays for pre-approved overtime. According to plaintiffs, this
results in an FLSA violation because they are not paid overtime for
extra hours worked. Plaintiffs’ proofs on this issue are contained
in ¶¶14-16 of Zielinski’s Certification (November 20, 2012) which
states:
14. I, as well as the other police officers, regularly
perform work after the end of his or her respective shift
due to unanticipated events that occur during the shift
which requires us to work past the end of our shift in
order to properly conclude our work duties. Wildwood,
however, does not pay us for any time worked beyond the
end of our shift unless such time is “pre-approved.”
15. Wildwood’s “pre-approval” policy for time and/or
overtime worked results in it not compensating us for
work actually performed. The Kronos time records reveals
that I and the others clock out after the end of our
scheduled shift. Wildwood does not compensate us for any
16
“unapproved time” beyond the scheduled end shift despite
the fact that work is required and permitted by Wildwood
to be actually performed by us.
16. Those of us who have worked beyond our scheduled
shift due to unanticipated work required events are
considered to have worked unapproved time and are not
compensated for this time.
Further, Zielinski alleges he routinely worked more than eight
hours per shift. Zielinski Cert. (December 26, 2012) ¶5. Wildwood
has not disputed these factual averments.
Based on the foregoing
evidence, the Court finds that plaintiffs satisfy the modest
factual showing necessary to conditionally certify their second
claim.
2.
Notice
As to notice, plaintiffs ask the Court to order Wildwood to
provide the names and addresses of putative class members, i.e.,
all Lieutenants, Sergeants and Police Officers employed with the
WPD from November 29, 2009, to the present.
Plaintiffs also ask
for the dates of birth and social security numbers for any class
member whose mailed notice is returned by the post office.
In
addition, plaintiffs want leave to send a follow-up postcard to any
class member who does not respond thirty days after the mailing of
the initial notice.
Last, plaintiffs request the Court to order
Wildwood to post the approved notice at its City Hall and “within
the Police Department work sites in the same areas in which it is
required to post FLSA notices.”
Brief at 35.
As to the content of plaintiffs’ proposed Consent to Join Form
(“Form”), Wildwood has no objection.
17
The Court’s review of the
Form reveals two changes to be made.
One, the Form shall make
clear the date the filled out Form must be returned.
Second, the
Form shall indicate that the Court has conditionally certified a
class involving two claims: (1) employees who were not paid for the
fifteen (15) minutes they were required to clock-in before their
shift officially started, and (2) employees who were not paid for
overtime that was suffered or permitted but not pre-approved.
With respect to the notice period, courts generally find 30-60
days is sufficient.
Steinberg, 2012 WL 2500331, at *6.
The Court
finds that a 45-day opt-in period is appropriate here.
This is a
reasonable compromise between too short of a
a longer period (60 days).
period (30 days) and
Accord Martinez v. Cargill Meat
Solutions, 265 F.R.D. 490, 501 (D. Neb. 2009); Baden-Winterwood v.
Life Time Fitness, No. 06-cv-99, 2006 WL 2225825, at *3 (S.D. Ohio
Aug. 2, 2006).
Plaintiffs have presented no persuasive reason why
a longer time period is necessary or appropriate.
The Court will grant plaintiffs’ request that Wildwood produce
the names and last known addresses of the putative class members.
The
Court
denies
without
prejudice
plaintiffs’
request
that
Wildwood also produce the dates of birth and social security
numbers for any class member whose mailed notice is returned.
Plaintiffs have not shown that first class mail is insufficient.
Steinberg, 2012 WL 2500331, at *10.11
Plaintiffs’ request for leave to send a follow-up postcard to
11
Plaintiffs may revisit this issue with the Court if notice
via their first attempt at first class mail is ineffective.
18
any class members who do not respond within thirty (30) days of
mailing is denied.
Again, plaintiffs have not shown that notice
via first class mail is insufficient.
Plaintiffs’ request that
notice be posted at Police Department work sites is also denied.
This request appears unnecessary and redundant.
The posted notice
is directed at current employees (33) who will already receive
mailed notice at home.
There is only a slim likelihood that
mailings to the current home addresses of Wildwood’s current police
officers will not be received. “Courts generally require, and
Plaintiffs have failed to offer, compelling reasons to allow notice
mechanisms beyond first class mail or contact information beyond
mailing addresses.”
Id.
Conclusion
For
all
the
foregoing
reasons,
plaintiffs’
conditional certification will be granted.
motion
for
Plaintiffs’ notice
requests will be granted in part and denied in part in accordance
with this Opinion.
An appropriate form of Order accompanies this
Opinion.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: May 17, 2013
19
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