ROCHESTER et al v. CITY OF EAST ORANGE
Filing
50
OPINION. Signed by Judge Dennis M. Cavanaugh on 12/30/2013. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STEPI-IEN ROCHESTER, JERMAINE
WILKINS, and RAYMOND
DONNERSTAG,
:
Hon. Dennis M. Cavanaugh
OPINION
Plaintiffs,
Civil Action No. 2:12-cv-5988 (DMC)(JBC)
v
CITY OF FAST ORANGE.
Dc f’endant,
DENNIS M. CAVANAUGH, U.S,D.J.:
This matter comes before the Court upon the Motion for Conditional Class Certification
by Plaintiffs Stephen Rochester, Jermaine Wilkins, and Raymond Donnerstag (collectively
“Plaintiffs”). Pursuant to FED. R. Civ. P 78, no oral argument was heard. Based on the ft)llowing
and for the reasons expressed herein, PlaintilYs Motion for Conditional Certification is
L
granted.
BACKGROUND’
Plaintiffs are law enforcement officers employed by Defendant City of East Orange
(“Defendant”). Plaintiffs allege that Defendant did not compensate Plaintiffs and other similarly
situated employees for overtime hours and that Defendant has engaged in a widespread patteai
policy, and practice of violating the Fair Labor Standards Act (the “FLSA”) and New Jersey
State Wage and Hour Law (“NJWHL”). Plaintiffs claim that they are entitled to compensation
for all hours they ha’ e worked
within a given week.
in excess of forty
The facts from this section are taken from the parties’ pleadings.
1
Plaintiffs flied a Complaint on September 24, 2012 on behalf of themselves and other
similarly situated employees alleging i) violation of the FLSA, and ii) violation of NJWI-IL (ECF
No. 1). On May 30, 2013, Plaintiffs tiled the instant Motion for Conditional Class Certitication
(LCF No, 24). Defendant tiled an Opposition on July 1, 2013 (ECF No. 36). Plaintiffs filed a
Reply on July 15, 2013 (“PL’s Reply.,” ECF No. 41). Plaintiffs concede in their Reply that the
NJWHL claim should be dismissed. Thus, this Court will only address Plaintiffs FLSA claim.
IL
STANDARD OF REVIEW
The Fair Labor Standards Act (“FLSA”) governs hour and wage practices and requires.
among other things, that employers pay covered employees at least a specified minimum wage
for work performed and overtime pay for hours worked in excess of forty hours per week. 29
U.S.C.
202. 207. The Act provides a mechanism that allows groups of such employees to
proceed together to seek recovery for violations of the act. Section 21 6(b) specifically provides:
[a]n action to recover liability may be maintained against any employer by one
or more employees for and in behalf of himself or themselves and other employees
similarly situated. No employee shall be a party plaintiff to any action unless he
gives his consent in writing to become such a party and such consent is filed in the
court in which such action is brought.
...
...
29 U.S.C.
§
2 16(b). This provision allows a group of employees to proceed in a collective action,
which enables them to pooi their resources to vindicate their rights” at lower cost. Hoftinann—
La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1985).
District courts have discretion in prescribing the terms of notice of communication from
the named plaintiffs to potential class members on whose behalf the action was filed. See id. at
169. In order for a collective action to proceed under
§ 2 16(b):
(1) named plaintiffs must show
that potential class members are “similarly situated” and (2) members must aftirmatively opt
In 5cc AstingWeicheitRealtois No 05—3120, 2006 WI 1455781 at I (D N I May 19
2006).
Although the FLSA does not define “similarly situated,” courts in the United States Court
of Appeals for the Third Circuit employ a two-step approach: a notice and conditional
certification stage, and a final certification or decertification stage. First, the court determines
whether potential class members are similarly situated and should be given notice of the
action. See
Hewitt Assocsjnc., No, 06—267, 2007 U.S. Dist. LEXIS 53278 at *67
(D.N.J. July 27, 2007) (citing Morisky v. Public Service Elec, & Gas Co., 111 F.Supp.2d 493.
497 (D.N.J. 2000). At this stage, the court usually only has evidence before it in the form of
pleadings and affidavits, so the court uses a fairly lenient standard to determine whether potential
collective action members are similarly situated and the courts determination “typically results
in conditional certification of a representative class.” Id. at *7, Plaintiffs must show a “factual
nexus between their situation and the situation of other current and former [employees] sufficient
to determine that they are ‘similarly situated.” Herring, 2007 U.S. Dist. LEXIS 53278. at
(quoting
*
13
jlipovJeHomcepo1nc.. No. 04—4100, 2006 U.S. Dist, LEXIS 66084, at *5
(D.N.J. Sept. 6. 2006)). The merits of the plaintiffs claim need not be evaluated and discoveD
need not be completed in order for such notice to be granted and disseminated. Id. at
*
4
(citing Aquilino, 2006 U.S. Dist. Lexis 66084, at *5), Even if the Court conditionally certifies
and provides notice to potential plaintiffs, “there is nothing to prevent a court from ‘modifying or
reversing a decision on similar situations at a later time in the action, as new facts
emerge.’” hi at *12 (quoting Sperling v. Hoffinan—LaRoehe, 118 F.R.L). 392. 407 (D.N.J.
1988)).
At the second stage, after the court has more evidence and is ready for trial, it will apply a
stricter standard. See Morisky, Ill F.Supp.2d at 497. If the court finds that the plaintiffs are
similarly situated, it will make a final decision to proceed as a class action.
j
HI.
DISCUSSION
Defendant first asserts that this Court should not conditionally certify Plaintiffs class
because Defendant had no agreement with Plaintiffs to pay them overtime for all hours worked
in excess of forty in a given work week. Rather, Defendant states that Plaintiffs’ overtime
compensation is governed by the”7(k) exemption” to the FLSA, which provides that no public
agency shall be deemed to have violated the overtime requirements of the FLSA if:
in the case of such an employee to whom a work period of at least 7 but less than
28 days applies, in his work period the employee receives for tours of duty which
in the aggregate exceed a number of hours which bears the same ratio to the number
of consecutive days in his work period as 216 hours
bears to 28 days.
compensation at a rate not less than one and one-half times the regular rate at which
he is employed.
.
29 U.S.C.
.
.
§ 207(k)(2). The Code of Federal Regulations clarifies that, for law enforcement
officers, the ratio is 171 hours to 28 days. Thus, Defendant asserts that a law enforcement
officer who works a 28 day work period is not entitled to overtime compensation until he
has worked in excess of 1 7 1 hours in that 28 day cycle. Plaintiffs do not dispute that the
7(k) exemption governs their overtime hours, but instead contend that the statement in the
Complaint that they are entitled to overtime compensation tor “all of the hours worked in
excess
of forty (40) within a work week” was a ‘scrivener[]s error” (Pl.’s Reply at 3). At
this stage in the litigation, this Court will accept Plaintiffs’ assertion that the reference to a
40-hour work week was a scrivener’s error.
Second, Defendant asserts that Plaintiffs’ Motion should be denied because
Plaintiffs’ declarations do not show that the extra time they worked exceeded the 171 hour
threshold. However, this Court need not determine whether Plaintiffs are actually owed
overtime compensation at this point; this Court need only determine whether potential class
4
members are similarly situated to Plaintiffs.
Third, Defendant claims that Plaintiffs have not alleged the existence of a common
employer practice in violation of the FLSA. This Court disagrees. The Declarations
of
Plaintiffs claim that Defendant’s policy included not paying employees for time worked
before and after scheduled shifts and that Defendant did not have a mechanism in place
to
properly track the amount of time worked by employees.
Finally, Defendant argues that Plaintiffs have not shown that they are similarly situated to
members of the putative class. To support this proposition, Defendant relies heavily on gpger.
Ocean Cable Grp. Inc., No. 10-4 198, 2011 WL 6887154 (D.N.J. Dec. 29, 2011). In Rogers,
the
court found that the plaintiffs did not show that they had personal knowledge of other employees
working in excess of forty hours per week. Id. at *4 The court reasoned that “[a]lthough each
plaintiff submitted an affidavit stating they worked in excess of 40 hours in a workweek. what
the are essentially asking the Court to do is to assume that because they worked in excess of 4()
hours in a workweek that the other technicians must have as well.” Id. However, in Salomon v.
Adderley Indus.. Inc., 847 F. Supp. 2d 561, 565 n. 11 (S.D.N.Y. 2012), the Southern District of
New York found that the case before it was distinguishable from Rogers because the plaintiffs in
that case ‘affirmed that other field technicians worked more than forty hours without overtime
pa. based on Plaintiffs conversations with them.” Similarly, in the instant case. Plaintiffs
affidavits demonstrate that they have personal knowledge of similarly situated employees. For
example. the Declarations of Stephen Rochester, Jermaine Wilkins. Bridget Awuah. and Nicole
Challeran state that these Plaintiffs have spoken to other officers regarding the unpaid overtime
(See ECF No. 34, Ex. C). Further, the Declarations of Tamieka Dwyer and Philip Rodriguez
state that these Plaintiffs have observed other employees not being paid for overtime hours (id).
)
This Court finds that these allegations are sufficient to succeed on a motion for conditional
certification. See Purnarnasidi v. Ichiban Japanese Rest.. No. 10-CV-1549. 2010 WE 3825707. at
*4 (D.N.J. Sept. 24, 2010) (finding that
although an affidavit of one employee that stated that “1
regularly see other employees, such as waiters, waitresses, and bussers working the same hours
and receiving the same type of pay as I do” was the barest minimum” that could be presented by
the plaintiff, it was nonetheless enough to grant conditional certification).
IV.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Conditional Certification is granted. An
appropriate order follows this Opinion.
Dennis M. Cavanaugl
Date:
Original:
cc:
3?
December
2013
Clerks Office
Hon. James B. Clark U.S.M.J.
All Counsel of Record
File
6
J.S.D.J.
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