ALVAREZ et al v. BI INCORPORATED
Filing
52
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 5/17/18. 5/18/18 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
:
KAREL ALVAREZ & JUAN TELLADO,
:
Individually and on behalf of all persons
:
similarly situated,
:
Plaintiffs,
:
:
v.
:
:
BI INCORPORATED,
:
:
Defendant.
:
__________________________________________:
CIVIL ACTION
No. 16–2705
Goldberg, J.
May 17, 2018
MEMORANDUM OPINION
This is a putative collective action for unpaid wages and overtime compensation under
the Fair Labor Standards Act (“the FLSA”). Named Plaintiffs Karel Alvarez and Juan Tellado
are an employee and former employee of Defendant BI Incorporated. Named Plaintiffs claim—
on behalf of themselves and other similarly situated employees and former employees—that
Defendant failed to pay them wages and overtime compensation for certain compensable work,
in violation of the FLSA.
Pending are: (1) Plaintiffs’ Motion to Conditionally Certify an FLSA Collective Action
and to Facilitate Notice (Plaintiffs’ “Notice Motion”); (2) Defendant’s Motion for Partial
Summary Judgment; (3) Plaintiffs’ Motion to Stay or Deny Defendant’s Motion for Partial
Summary Judgment (Plaintiffs’ “Rule 56(d) Motion”); and (4) Plaintiffs’ Motion for Equitable
Tolling. For the reasons that follow, Plaintiffs’ Notice Motion and Rule 56(d) Motion will be
granted; Defendant’s Partial Summary Judgment Motion will be denied without prejudice; and
Plaintiffs’ Motion for Equitable Tolling will be denied.
1
I.
FACTUAL & PROCEDURAL BACKGROUND
The following facts are taken from Plaintiffs’ Class and Collective Action Complaint,
Defendant’s Answer, the briefs filed in connection with the instant motions, and the exhibits and
declarations attached thereto.
A.
Factual Background
Defendant, BI Incorporated, provides products and services to government agencies that
monitor parolees, probationers, pretrial defendants, and the like. In 2004, Defendant was
awarded a contract by U.S. Immigration and Customs Enforcement (“ICE”) to monitor aliens
released from ICE detention pending immigration proceedings. (This program, called the
“Intensive Supervision Appearance Program,” is referred to hereinafter as “ISAP,” and
Defendant’s contract with ICE is referred to as the “ISAP Contract.”) (Compl. ¶ 17; Answer
¶ 17; Dep. of Jeffrey McGee, Pls.’ Mem. in Supp. of Notice Mot., Ex. 4 (hereinafter cited as
“McGee Dep.”) at 6:12-13, 15:8-16:25; Pls.’ Mem. in Supp. of Notice Mot., Ex. 6.)1
Under the ISAP Contract, Defendant is responsible for completing specified tasks to
monitor the aliens that ICE designates for ISAP supervision. (Such aliens are referred to as ISAP
“participants.”) The required tasks include installing electronic monitoring equipment on
participants and visiting with participants—both at the participants’ homes and at Defendant’s
offices. (Pls.’ Mem. in Supp. of Notice Mot., Ex. 6.)
To carry out these tasks, Defendant has employed a number of “ISAP Case Specialists.”
During the time period at issue, Defendant employed more than 400 ISAP Case Specialists in
approximately 61 offices, located in 32 states. Each of these offices was led by an ISAP Program
1
ICE and Defendant have since renewed the ISAP Contract twice, first in November 2009 and again in
November 2014, and the contract is up for renewal again in 2019. (McGee Dep. 15:8-16:25.)
2
Manager, who supervised the ISAP Case Specialists assigned to that office. (Compl. ¶ 8; Answer
¶ 8; McGee Dep. 60:23-61:2.)
Named Plaintiffs Karel Alvarez and Juan Tellado have worked for Defendant as ISAP
Case Specialists. Named Plaintiff Alvarez was employed in Defendant’s Philadelphia office from
July 2012 through November 2015, and has since been employed in Defendant’s office in
Newark, New Jersey. Named Plaintiff Tellado was employed in Defendant’s Philadelphia Office
from January 2014 through January 2015. (Compl. ¶¶ 21-22; Answer ¶¶ 21-22.)
B.
Procedural History of This Collective Action
Plaintiffs initiated this action on June 2, 2016, by filing a Class and Collective Action
Complaint, claiming that Defendant failed to pay them—and other ISAP Case Specialists
throughout the United States—wages and overtime compensation, in violation of the FLSA and
the Pennsylvania Minimum Wage Act.2
Specifically, Plaintiffs allege that Defendant failed to pay them for three categories of
compensable work. First, Plaintiffs allege that they did various work “off-the-clock”—by, for
example, working though lunch breaks—and that such off-the-clock work was required to meet
the demands created by their heavy workload. Second, Plaintiffs claim that Defendant failed to
compensate them for time that they were “on call”—that is, time that they were required to be
prepared to respond within minutes to an alert triggered by an ISAP participant. And third,
Plaintiffs assert that Defendant failed to compensate them for certain time related to visiting
participants at their homes (referred to as “home visits”). Specifically, this was time spent
commuting, in Defendant’s vehicles, from the ISAP Case Specialists’ own homes to the
residence of the first ISAP participant to be visited during a given day; time spent reverse
Plaintiffs have also asserted an unjust enrichment claim based on Defendant’s alleged failure to pay
wages and overtime compensation.
2
3
commuting home after a day’s final home visit; and tasks undertaken in preparation for home
visits, such as mapping out a route to the participants’ homes, and uploading necessary
information into their work phones. (Compl. ¶¶ 32-67.)
After Defendant answered the Complaint, I held a Rule 16 Conference, and on
November 4, 2016, issued a Scheduling Order providing limited discovery on the issue of
conditional certification of a collective action under the FLSA. The Scheduling Order allowed
Plaintiffs to “serve written discovery requests and take one (1) Rule 30(b)(6) deposition of
Defendant’s corporate designee,” and specified that both the “deposition and discovery requests
shall be limited to the issue of conditional certification under the FLSA.” (11/4/16 Or., Doc. No.
23.)
On April 3, 2017, Plaintiffs filed their Notice Motion, seeking conditional certification of
a collective action under the FLSA and the issuance of a court-approved notice to other current
and former ISAP Case Specialists. In addition to opposing Plaintiffs’ Notice Motion, Defendant
filed a Motion for Partial Summary Judgment on Plaintiffs’ claims regarding home visits.
Plaintiffs responded with a motion under Federal Rule of Civil Procedure 56(d), urging me to
defer consideration of Defendant’s Partial Summary Judgment Motion until after discovery on
the merits.
Since the filing of the Complaint in June 2016, ten additional ISAP Case Specialists have
opted in to this collective action, bringing the total number of Plaintiffs to twelve. In November
2017, five months after filing their Notice Motion, Plaintiffs filed a Motion for Equitable
Tolling, requesting that the statute of limitations for any additional potential opt-in plaintiffs be
tolled from the date of the filing of their Notice Motion, April 3, 2017, until ten days after my
decision on the Notice Motion. Defendant opposes such tolling.
4
For the reasons that follow, I conclude that Plaintiffs’ FLSA claims should be
conditionally certified as a collective action, and that notice should be sent to potential opt-in
plaintiffs. I further conclude that Defendant’s Motion for Partial Summary Judgment is
premature, as discovery on the merits of Plaintiffs’ claims has not been completed. Finally, I
conclude that equitable tolling of the statute of limitations for potential opt-in plaintiffs is not
appropriate in this case.
II.
DISCUSSION
A.
Conditional Certification of a Collective Action
“The FLSA establishes federal minimum wage, maximum hour, and overtime guarantees
that cannot be modified by contract.” Genesis Healthcare Corp v. Symczyk, 569 U.S. 66, 69
(2013); see also 29 U.S.C. § 201 et seq. Employees alleging that their employer violated these
guarantees by failing to pay wages and overtime compensation may sue on “behalf of . . .
themselves and other employees similarly situated.” 29 U.S.C. § 216(b). “A suit brought on
behalf of other employees is known as a ‘collective action.’” Genesis Healthcare Corp., 569 U.S.
at 69.
A collective action under the FLSA differs from a class action under Federal Rule of
Civil Procedure 23, in that “the mere presence of [collective action] allegations does not
automatically give rise to the kind of aggregate litigation provided for in Rule 23.” Halle v. W.
Penn Allegheny Health Sys. Inc., 842 F.3d 215, 225 (3d Cir. 2016). “Rather, the existence of a
collective action depends upon the affirmative participation of opt-in plaintiffs,” who must, to
pursue their claims, affirmatively choose to join in the collective action by filing a written opt-in
notice with the court. Id.; see also 29 U.S.C. § 216(b) (providing that “[n]o employee shall be a
5
party plaintiff to [a collective] action [under the FLSA] 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”).
The FLSA does not define the term “similarly situated,” nor does it specify a procedure
for determining whether the employees that a named plaintiff seeks to include in a collective
action are similarly situated. But the United States Court of Appeals for the Third Circuit has
approved a “practical approach to managing FLSA collective actions” that consists of two steps.
Halle, 842 F.3d at 224.
At the first step, a court determines whether a collective action should be “conditionally
certified.” Halle, 842 F.3d at 224. In order to obtain conditional certification, the named
plaintiffs need only make “a modest factual showing—something beyond mere speculation—to
demonstrate a factual nexus between the manner in which the employer’s alleged policy affected
him or her and the manner in which it affected the proposed collective action members.” Id.
(internal quotation marks omitted) (citing Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 n.4
(3d Cir. 2012)).
Because this determination occurs “early in the litigation when minimal evidence is
available to the court,” the evidentiary standard is “extremely lenient.” Viscomi v. Clubhouse
Diner, No. 13-cv-4720, 2016 WL 1255713, at *3 (E.D. Pa. Mar. 31, 2016). “The Court does not
evaluate the merits of a case when ruling on a motion for conditional certification,” but simply
determines whether the named plaintiffs have “provide[d] modest evidence that the proposed
[collective] consists of similarly situated employees who were collectively the victims of a single
decision, policy, or plan.” Id. (internal quotation marks omitted); see also Bamgbose v. Delta-T
Group, Inc., 684 F. Supp. 2d 660, 664 n.4 (E.D. Pa. 2010) (noting that, when deciding a motion
6
for conditional certification, “[t]he court does not make any credibility determinations or
findings of fact when presented with contrary evidence”).
If a court determines that the named plaintiffs have met this lenient standard, and
conditionally certifies a collective action, “[t]he sole consequence . . . is the dissemination of
court-approved notice to potential collective action members.” Halle, 842 F.3d at 224
(explaining that “[c]onditional certification, therefore, is not a true certification, but rather an
exercise of a district court’s discretionary authority to oversee and facilitate the notice process”).
Following notice to potential opt-in plaintiffs and remaining discovery, a collective action
moves to the second step: final certification. Halle, 842 F.3d at 226. At this stage, “after
discovery, and with the benefit of a much thicker record than it had at the [conditional
certification] stage, a court . . . makes a conclusive determination as to whether each plaintiff
who has opted in is in fact similarly situated to the named plaintiff[s].” Symczyk v. Genesis
Healthcare Corp., 656 F.3d 189, 192 (3d Cir. 2011), rev’d on other grounds, 569 U.S. 66 (2013).
“This second stage is less lenient, and the plaintiff bears a heavier burden.” Id.
The case before me is currently at the first of these two stages: conditional certification.
Having completed limited discovery relevant to whether the Named Plaintiffs—Alvarez and
Tellado—are similarly situated to other current and former ISAP Case Specialists, Plaintiffs seek
conditional certification of a “collective”3 and approval of a notice to be sent to members of that
collective. Accordingly, I must determine whether Plaintiffs have met their modest evidentiary
burden of demonstrating that they are similarly situated to the members of the collective that
they seek to conditionally certify.
While some courts use the term “class” to refer to the group of employees that a named plaintiff seeks to
conditionally certify, I will use the term “collective” to highlight that this is a collective action under the
FLSA, not a class action under Rule 23.
3
7
Plaintiffs seek conditional certification of the following collective:
All current and former ISAP Case Specialists employed by BI Incorporated who
performed work in the United States between [insert date three years prior to the date that
the Court issues an Order granting Conditional Certification but including 60 days of
agreed upon tolling]4 and the present.
Plaintiffs contend that they are similarly situated to other ISAP Case Specialists nationwide
because all ISAP Case Specialists share the same job responsibilities and pay, receive the same
training, and are subject to the same management structure. In addition to sharing these general
characteristics, Plaintiffs contend that for each of the types of work they claim went unpaid—offthe-clock work, on-call time, and certain time related to home visits—ISAP Case Specialists
were subject to the same official policies and unofficial practices.
Plaintiffs have provided ample evidence that ISAP Case Specialists nationwide shared
the same job responsibilities, pay, training, and management structure. As to job responsibilities,
Plaintiffs have provided a document, produced by Defendant, that sets out the primary job
responsibilities of ISAP Case Specialists. (Pls.’ Mem in Supp. of Notice Mot., Ex. 7.) Regarding
pay, Plaintiffs have pointed to Defendant’s corporate representatives’ testimony that ISAP Case
Specialists nationwide were hourly employees eligible for overtime and subject to uniform pay
policies, such as “regular pay,” “overtime pay” and “on-call pay.” (McGee Dep. 140:13-19; Dep.
of Heather Chico, Pls.’ Mem in Supp. of Notice Mot., Ex. 12 (hereinafter cited as “Chico Dep.”)
at 44:12-19.) As to training, Defendant’s corporate representatives testified that ISAP Case
Specialists all receive the same training, and were subject to the same employee handbook and
standard operating procedures, which materials Defendant produced in discovery. (McGee Dep.
197:23-198:2; Dep. of Nicole Keith, Pls.’ Mem in Supp. of Notice Mot., Ex. 11 (hereinafter cited
This bracketing is in the original of Plaintiffs’ Memorandum in Support. As Plaintiffs note, the parties
agreed to toll the statute of limitations for any additional opt-in plaintiffs by 60 days, as part of their
agreement to participate in a settlement conference. (Pls.’ Mem. in Supp. of Notice Mot. 5-6.)
4
8
as “Keith Dep.”) at 30:21-31:1, 56:10-13, 116:18-117:15; Pls.’ Mem in Supp. of Notice Mot.,
Exs. 10, 13, 29.) And finally, as to how ISAP Case Specialists were managed, Plaintiffs provided
evidence of a uniform management structure in which ISAP Case Specialists in each office
answer to their office’s ISAP Program Manager, who, in turn, reports to one of several Regional
Directors, who answers to a nationwide ISAP director. (McGee Dep. 60:19-61:7; Pls.’ Mem in
Supp. of Notice Mot., Ex. 9.) These similar characteristics allowed Defendant to shift ISAP Case
Specialists from one office to another to meet staffing needs. (McGee Dep. 217:16-20; Keith
Dep. 119:7-11.)
Defendant does not appear to dispute that ISAP Case Specialists throughout the nation
are similarly situated in these general ways. Instead, Defendant contends that as to Plaintiffs’
three uncompensated work claims—off-the-clock work, on-call time, and certain time related to
home visits—ISAP Case Specialists were subject only to lawful official policies, and that
Plaintiffs have failed to show an unlawful, unofficial practice applicable nationwide. However,
for the reasons set out below, I conclude that Plaintiffs have satisfied their modest evidentiary
burden as to each of their three claims.
1.
Off-the-Clock Work
Plaintiffs contend that they often worked off-the-clock, including through their lunch
periods and after regular business hours, and that Defendant did not compensate them for this
time. In contending that ISAP Case Specialists throughout the nation are similarly situated in this
regard, Plaintiffs acknowledge that Defendant had an official policy prohibiting off-the-clock
work. However, Plaintiffs contend that ISAP Case Specialists nationwide routinely did work offthe-clock as a result of two uniform practices: (1) understaffing of Defendant’s offices, and (2)
9
payment of bonuses to ISAP Program Managers based, in part, on how little overtime was paid
to ISAP Case Specialists.
a.
Understaffing
First, Plaintiffs point to evidence that Defendant’s offices throughout the nation were
understaffed. Defendant’s corporate representative testified that the ISAP Contract called for
Defendant to maintain certain minimum ratios of ISAP Case Specialists to ISAP participants,
and that Defendant frequently failed to satisfy these staffing requirements. For example,
Defendant’s corporate representative acknowledged that the ISAP Contract in place after
November 2014 required Defendant to employ at least one ISAP Case Specialist for every 100
ISAP participants, and that Defendant fell short of this staffing requirement “a good bit,” in light
of the “explosive growth” of ISAP, as well as delays in obtaining security clearances necessary
for newly-hired ISAP Case Specialists to begin work. (McGee Dep. 209:22-210:23, 213:9214:7.)
Plaintiffs contend that the shortage of ISAP Case Specialists was particularly significant
because, under the ISAP Contract, ISAP Case Specialists were required to conduct certain tasks
within certain time frames. Evidence in the record supports Plaintiffs’ contention, at least for the
ISAP Contract applicable from November 2009 through November 2014. Under that contract,
for example, ISAP Case Specialists were required to conduct home visits at certain specified
intervals—such as every two weeks, or every four weeks, depending on the status of the
particular participant’s immigration proceedings. (Ex. 4, McGee Dep. 70:11-71:7.) Plaintiffs
contend that these uniform and inflexible requirements, combined with understaffing nationwide,
resulted in ISAP Case Specialists having more work than could be completed within the 40-hour
workweek, thus necessitating off-the-clock work.
10
Evidence of understaffing across a collective of employees can support conditional
certification of a claim for uncompensated off-the-clock work. See, e.g., Pearsall-Dineen v.
Freedom Mortg. Corp., 27 F. Supp. 3d 567, 571 (D.N.J. 2014) (granting conditional certification
where plaintiffs alleged that employer “imposed ‘production requirements’ on [employees] that
required them to work in excess of forty hours per week,” and where these allegations were
supported by declarations from multiple opt-in plaintiffs); Pereira v. Foot Locker, Inc., 261
F.R.D. 60, 64 (E.D. Pa. 2009) (granting conditional certification where employees alleged that
their employer had an “insufficient labor budget . . . such that hours and overtime [were]
regularly unpaid to retail employees who must work off-the-clock to perform basic job
functions,” and where employees supported these allegations with evidence that employees
regularly punched out before finishing work).
As in Pearsall-Dineen and Pereira, Plaintiffs here have alleged that ISAP Case Specialists
were effectively required to work off-the-clock to complete necessary work, and have supported
these allegations with declarations from employees stating that they did, in fact, work off-theclock to complete required work. And surpassing Pearsall-Dineen and Pereira, Plaintiffs have
provided at least some evidence to substantiate their claims that there was a shortage of ISAP
Case Specialists, in the form of Defendant’s corporate representative’s testimony that Defendant
frequently fell short of staffing requirements set by the ISAP Contract.
Defendant contends that Plaintiffs have not produced evidence connecting off-the-clock
work to understaffing, because they have not, for example, “provided evidence to describe the
mix or type of participants they were assigned, that they were assigned a participant mix or type
that would . . . result in a higher workload, or that Defendant maintained a policy permitting only
a set number of hours per day or week.” (Def.’s Opp’n to Pls.’ Notice Mot. 23.) But both the
11
Named Plaintiffs and multiple Opt-In Plaintiffs described their inability to complete required
tasks, and how that inability was attributable to the number of participants that they were
assigned. For example, Named Plaintiff Tellado, who worked in Defendant’s Philadelphia office,
indicated that he worked off-the-clock “due to the volume of his caseload,” and “the inability to
complete assigned tasks within the allotted time frames.” (Pl. Tellado’s Resps. to Interrogs., Pls.’
Mem. in Supp. of Notice Mot., Ex. 23 at 7-8.) Likewise, one Opt-In Plaintiff, Veronica Acosta,
who worked in at least six of Defendant’s offices (Miami; Orlando; Atlanta; New Orleans;
Sacramento; Fairfax, Virginia; and Miramar, Florida) stated that she worked off-the-clock
because she had more work than she could complete in the 40-hour work week. (Decl. of
Veronica Acosta, Pls.’ Mem. in Supp. of Notice Mot., Ex. 15 (hereinafter cited as “Acosta
Decl.”) at ¶¶ 3-6.) And another Opt-In Plaintiff, Johanna Cabezas, who worked in four other
offices in California (San Francisco, Los Angeles, Santa Ana, and San Bernardino) stated that
she also worked off-the-clock through lunch “almost every day because [the offices] were short
staffed.” (Decl. of Johanna Cabezas, Pls.’ Mem. in Supp. of Notice Mot., Ex. 17 at ¶¶ 3-6.)
Plaintiffs’ declarations that they were required to work off-the-clock to complete work
due to Defendant’s failure to adequately staff its offices, in combination with Defendant’s own
testimony that staffing levels frequently fell below those required by the ISAP Contract, supports
the existence of a common practice of off-the-clock work attributable to understaffing.
b.
Managerial Bonuses Based on Overtime Pay
Second, Plaintiffs have provided evidence that ISAP Program Managers—who
supervised Defendant’s offices and the ISAP Case Specialists employed in them—were paid
bonuses based, in part, on how much overtime compensation was paid. Specifically, Defendant’s
corporate representative testified that the amount of overtime compensation paid to ISAP Case
12
Specialists was “one of many” factors contributing to the “financial performance” of an office,
which performance would be considered in determining an ISAP Program Manager’s bonus.
(McGee Dep. 241:7-22.)
Courts have held that such managerial bonuses can support conditional certification of
off-the-clock work claims, because such bonuses may result in the performance of off-the-clock
work. See, e.g., Vargas v. Gen. Nutrition Ctrs., Inc., No. 10-cv-867, 2012 WL 3544733, at *8
(W.D. Pa. Aug. 16, 2012) (conditionally certifying collective action for uncompensated off-theclock work, and noting that “[a]n unwritten policy or practice resulting in unpaid overtime, such
as making management pay dependent upon meeting hours targets may be actionable under the
FLSA”); Maddy v. Gen. Elec. Co., 59 F. Supp. 3d 675, 683 (D.N.J. 2014) (“Courts in this Circuit
have conditionally certified collective actions in many cases where plaintiffs allege that an
unwritten policy or practice led to off-the-clock work, particularly where that unwritten policy
related to certain time-based goals set by employers.”). Thus, the fact that ISAP Program
Managers’ pay was, at least in some part, attributable to the amount of overtime compensation
that was paid to ISAP Case Specialists supports Plaintiffs’ position that ISAP Case Specialists
were subject to a common practice resulting in off-the-clock work.
Plaintiffs’ contention that off-the-clock work was pervasive is further supported by a
report prepared by the U.S. Department of Labor following that agency’s investigation into
alleged FLSA violations by Defendant.5 This investigation was initiated after one of the Opt-In
5
Defendant urges me not to consider the report for purposes of conditional certification, arguing that it is
inadmissible and unreliable “hearsay built upon hearsay.” (Def.’s Opp’n to Pls.’ Notice Mot. 23.) I agree
with Plaintiffs that evidence need not be admissible at trial to be considered at the conditional certification
stage, where the evidentiary burden is slight, and where a court does not assess the merits but simply
determines whether there is modest evidence of a common policy or practice. See, e.g., Bredbenner v.
Liberty Travel, Inc., No. 09-cv-905, 2009 WL 2391279, at *2 n.1 (D.N.J. July 31, 2009) (declining to
strike portions of declarations submitted in support of a motion for conditional certification and noting
that “the standard for conditional certifications is lenient and does not address the merits of the case”).
13
Plaintiffs in this action, Diane Dixon, submitted a complaint to the Labor Department. (Decl. of
Diane Dixon, Pls.’ Mem. in Supp. of Notice Mot., Ex. 19 at ¶ 14; Pls.’ Mem. in Supp. of Notice
Mot., Ex. 5 (cited hereinafter as “Labor Dep’t FLSA Narrative Report.”))
In the report, the Labor Department identified a number of “consistent practices that
assisted in creating violations of . . . [the] FLSA.” (Labor Dep’t FLSA Narrative Report at 13.)
These practices included:
“Caps on overtime in [Defendant’s] offices, which led to employees logging off
the clock and subsequently continuing to work after being clocked out in order to
complete work.”
“Employees working through lunch breaks to complete case notes and intakes of
new ISAP participants. Employees are told not to go home until all work is
completed.”
“Geographical challenges doing home visits, particularly when 20 or more home
visits are required during an eight-hour shift. In some cases, some case managers
had up to 40 home visits they were required to make on a given day during an
eight-hour shift.”
“Case specialists maintaining high caseloads, in some cases having up to 120
clients.”
“Case specialists not being able to finalize their daily workload within an eighthour shift.”
“Understaffing.”
“A review of employees’ time records revealed numerous edits to employee time
sheets to reflect no overtime or little overtime without the employees’ knowledge.
Program Managers had no plausible justification for these changes.”
“Program managers receiving a yearly bonus for keeping overtime down in each
of the 42 offices across the United States.”
“Overtime issues being presented to the Regional Managers across the United
States to no avail.”
“The enormous pressure put on case specialists to get the work done.”
14
(Id. at 13-14.) These findings lend additional support to Plaintiffs’ position that nationwide
practices—including understaffing and managerial bonuses for
minimizing overtime
compensation paid—resulted in off-the-clock work. Accordingly, Plaintiffs have more than
satisfied their modest evidentiary burden for conditional certification of their off-the-clock work
claims.
2.
On-Call Time
Separate and apart from their off-the-clock work claims, Plaintiffs contend that they and
other ISAP Case Specialists were not fully compensated for time that they were required to be
“on call.”
During on-call time, ISAP Case Specialists were required to carry a pager or cell phone
and to be prepared to respond to alerts within ten minutes. Such alerts could be triggered for a
number of reasons, such as a malfunction of a participant’s monitoring device or a participant
leaving home after curfew. Depending on the type of alert triggered, an ISAP Case Specialist
was required to take some action, such as phoning or visiting the participant, and then document
that action. (McGee Dep. 98:3-99:7; Keith Dep. 87:14-88:16; Pls.’ Mem. in Supp. of Notice
Mot., Ex. 26; Decl. of Carisa Bauza, Pls.’ Mem. in Supp. of Notice Mot., Ex. 16 at ¶ 12; Pls.’
Mem. in Supp. of Notice Mot., Ex. 13, Doc. No. 35-13 at 34.)
An ISAP Case Specialist would be scheduled to be on call for a week-long shift. During
an assigned on-call week, the ISAP Case Specialist was required to respond to alerts generated
between the hours of 5:00 p.m. and 8:00 a.m. on weekdays, and 24 hours per day on weekends.
The ISAP Case Specialist would continue to perform his or her regularly assigned duties during
regular business hours. (Keith Dep. 42:1-7; McGee Dep. 240:3-24; Acosta Decl. ¶ 10.)
15
Plaintiffs contend that, under the FLSA, Defendant was required to compensate them for
the entirety of the time that they were on call (not just the time they spent responding to alerts),
because they were “engaged to wait” during such time. And Plaintiffs contend that they are
similarly situated to other ISAP Case Specialists employed before March 2015,6 because
Defendant had, during this time period, a single, uniform pay policy setting out how ISAP Case
Specialists would be compensated for on-call time, which policy did not compensate them for all
on-call time.
Plaintiffs have provided Defendant’s on-call pay policy, under which ISAP Case
Specialists were compensated for on-call time in two ways. First, ISAP Case Specialists were
paid for their on-call time at a rate of $120.00 per week, regardless of the alerts they received and
responded to. Second, in addition to this weekly rate, Defendant’s policy provided that ISAP
Case Specialists would be compensated for “time spent on responding to a page or call . . . at the
employee’s base hourly rate plus overtime, if applicable.” (Pls.’ Mem. in Supp. of Notice Mot.,
Ex. 14.)
In contending that Plaintiffs’ on-call claim should not be conditionally certified,
Defendant primarily argues that its on-call policy, as described above, was legal. This argument
is aimed at the merits of Plaintiffs’ claim, and is not appropriate at the conditional certification
stage. See, e.g., Viscomi, 2016 WL 1255713, at *5 (rejecting defendants’ arguments at the
conditional certification stage because they “address[ed] the merits of plaintiffs’ claims, not the
commonality of the alleged policies”).
6
In March 2015, Defendant transitioned on-call responsibilities from ISAP Case Specialists in its various
offices to a single, dedicated “call center.” (McGee Dep. 100:20-101:3.)
16
In addition to arguing that its policy regarding on-call pay was lawful, Defendant argues
that Plaintiffs’ “on-call theory . . . does not rest on common proof,” because the Named and OptIn Plaintiffs were inconsistent with one another as to: (1) whether they logged all of the time they
spent responding to alerts, and (2) whether their Program Managers changed the time logged.
This argument misses the point of Plaintiffs’ claim—that, under the FLSA, Defendant was
required to compensate ISAP Case Specialists for all time spent on call, not merely for time
spent responding to alerts. Whether Plaintiffs were consistent in logging the time that they spent
responding to alerts, and whether their ISAP Program Managers consistently modified any time
logged, have no bearing on the commonality of Plaintiffs’ claim that Defendant was required to
pay ISAP Case Specialists for all time spent on call.
By pointing to Defendant’s uniform policy for on-call pay, demonstrating that ISAP Case
Specialists nationwide were not compensated for all time spent on call, Plaintiffs have met their
modest evidentiary burden of showing that they were subject to a common policy that allegedly
violates the FLSA.
3.
Time Related to Home Visits
Finally, Plaintiffs contend that Defendant failed to compensate them and other ISAP Case
Specialists for time that they spent commuting, in Defendant’s vehicles, from their own homes to
the residence of the first participant visited on a given day, and the reverse commute back home
following the final home visit for the day. Plaintiffs also point to tasks undertaken in preparation
for home visits, such as mapping out a route to the participants’ home, and uploading necessary
information into work phones.
17
As with on-call time, Defendant had a uniform policy setting out how ISAP Case
Specialists would be compensated for travelling to and from their homes to conduct a day’s
home visits. Under this policy, an ISAP Case Specialist commuting directly from his or her
home to the first home visit for the day would be paid for any travel time exceeding his or her
ordinary home-to-office commute. Likewise, an ISAP Case Specialist reverse commuting home
from the last home visit for the day would be paid for any travel time exceeding his or her
ordinary home-to-office commute. (Pls.’ Mem. in Supp. of Notice Mot., Ex. 30, Doc. No. 37 at
123; Keith Dep. 61:15-62:14; McGee Dep. 162:16-163:9.)
Plaintiffs contend that, under the FLSA, Defendant was required to compensate ISAP
Case Specialists for the entirety of their travel time (not just time in excess of the ISAP Case
Specialist’s ordinary home-to-office commute time). And Plaintiffs contend that they are
similarly situated to other ISAP Case Specialists regarding this claim because Defendant’s policy
applied uniformly to all ISAP Case Specialists.
As with on-call time, Defendant primarily argues that Plaintiffs’ claim should not be
conditionally certified because its pay policy regarding travel to and from home visits was legal.
Perhaps recognizing that this merits-based argument is not appropriate at the conditional
certification stage, Defendant has also moved for partial summary judgment as to this issue.
While Defendant’s partial summary judgment motion is addressed below, I reiterate that it would
be inappropriate to render a decision on the merits at the conditional certification stage.
Defendant offers two other arguments as to why Plaintiffs are not similarly situated
regarding home visits. First, Defendant notes that certain ISAP Case Specialists never travelled
directly between their homes and a participant’s home for a home visit. This is so for two
reasons: (1) in the Los Angeles, Houston and San Bernardino offices, there are certain ISAP
18
Case Specialists who handle all home visits, and, thus, the other ISAP Case Specialists in those
offices do not conduct home visits; and (2) some ISAP Case Specialists choose not to travel
directly between their homes and the participants’ residences to conduct home visits, but instead
start a day by driving to the office and clocking in, and then drive to the first home visit from the
office, to which they return at the end of the day before commuting home. (Def.’s Opp’n to Pls.’
Notice Mot. 20.)
Second, Defendant contends that the Named Plaintiffs and Opt-In Plaintiffs have been
inconsistent as to when they clocked in and out when travelling to and from home visits. For
example, while Named Plaintiff Alvarez stated that he understood that he was not supposed to
clock in until he met with his first participant of the day, Named Plaintiff Tellado stated that he
understood that he was supposed to deduct his ordinary home-to-office commute time. And some
Opt-In Plaintiffs stated that they clocked in at home, before travelling to their first home visit,
but later had these time entries changed by their ISAP Program Manager. (Def.’s Opp’n to Pls.’
Notice Mot. 20-21.)
At the conditional certification stage, courts do not require that there be no individualized
questions regarding a claim, or that every member of a proposed collective be identical in every
experience related to that claim. Rather, whether individualized questions predominate over a
common policy or practice challenged in the claim is left for final certification. See, e.g., Rocha
v. Gateway Funding Diversified Mort. Servs., L.P., No. 15-cv-482, 2016 WL 3077936, at *9
(E.D. Pa. June 1, 2016) (granting conditional certification and noting that “courts in this Circuit
have recognized that a defendant’s claim or defense that individualized circumstances of
employees render the matter unsuitable for collective treatment may be more appropriately
reviewed during step two of the certification process”) (collecting cases). Defendant’s arguments
19
above—that certain ISAP Case Specialists never travelled directly from their homes to conduct
home visits, or were inconsistent as to how they recorded their time—may prevail at the final
certification stage. However, these arguments do not preclude conditional certification, as
Plaintiffs have met their modest evidentiary burden by demonstrating that ISAP Case Specialists
were subject to a single pay policy that allegedly violates the FLSA.
Accordingly, I will grant Plaintiffs’ Motion for Conditional Certification, and
conditionally certify the following collective:
All current and former ISAP Case Specialists employed by BI Incorporated who
performed work in the United States between March 18, 2015, and the present.
The parties will be directed to meet and confer regarding the content of the notice to be sent to
the members of the collective, the appropriate method of sending notice,7 and a deadline for
additional opt-in plaintiffs to file their written consents.
B.
Defendant’s Motion for Partial Summary Judgment and Plaintiffs’ Rule 56(d)
Motion
Defendant has moved for partial summary judgment on Plaintiffs’ claims regarding home
visits. Defendant urges that summary judgment is appropriate at this stage because there is no
genuine dispute as to the material facts surrounding these claims. Plaintiffs respond that
summary judgment would be premature at this time, as discovery has been limited to the issue of
conditional certification, and has not been completed as to the merits. Accordingly, Plaintiffs
have filed a motion under Federal Rule of Civil Procedure 56(d), urging me to defer
consideration of Defendant’s Partial Summary Judgment Motion until after the completion of
discovery.
The parties have indicated in their briefing on Plaintiffs’ Notice Motion that they disagree as to whether
the method of sending notice should be limited to first-class mail or should include electronic mail and
posting in Defendant’s offices. Plaintiffs and Defendant shall meet and confer as to this issue.
7
20
Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition [to a motion for
summary judgment], the court may . . . defer considering the motion or deny it,” pending
discovery. Such motions, where properly filed, are granted “as a matter of course.” St. Surin v.
V.I. Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir. 1994).
The Third Circuit has noted that Rule 56(d) motions are particularly appropriate where
there is outstanding discovery. See Doe v. Abington Friends Sch., 480 F.3d 252, 258 (3d Cir.
2007). “If discovery is incomplete a district court is rarely justified in granting summary
judgment, unless the discovery request pertains to facts that are not material to the moving
party’s entitlement to judgment as a matter of law.” Shelton v. Bledsoe, 775 F.3d 554, 568 (3d
Cir. 2015); see also Doe, 480 F.3d at 258 (“If discovery is incomplete in any way material to a
pending summary judgment motion, a district court is justified in not granting the motion.”).
Here, merits discovery has not been completed. The Scheduling Order I issued limited
the first phase of discovery to that necessary for Plaintiffs to seek conditional certification of a
collective action, with the understanding that full discovery on the merits would follow.
Nevertheless, Defendant presses that the discovery taken thus far for the purpose of conditional
certification necessarily and extensively reached the merits of Plaintiffs’ claims, including
Plaintiffs’ home visits, such that the factual record is sufficient to decide Defendant’s Motion for
Partial Summary Judgment.
In its Motion for Partial Summary Judgment, Defendant contends that Plaintiffs’ homevisit claims fail as a matter of law, because such time is not compensable under the FLSA.
Plaintiffs disagree and contend that additional depositions and documents that were not obtained
during the certification-related discovery period are necessary for them to fully demonstrate that
21
such time is compensable. Accordingly, I must determine whether the outstanding merits
discovery sought by Plaintiffs is material to their opposition to Defendant’s Partial Summary
Judgment Motion.
As previously noted, the FLSA requires employers to pay minimum wages for
compensable work, and overtime compensation for such work performed in excess of 40 hours
per week. See 29 U.S.C. §§ 206(a), 207(a)(1). However, the FLSA does not define what
activities qualify as compensable work.
In passing the Portal-to-Portal Act, Congress amended the FLSA to specify that two
categories of activities are not compensable work:
(1) walking, riding, or traveling to and from the actual place of performance of the
principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or
activities,
which occur either prior to the time on any particular workday at which such employee
commences, or subsequent to the time on any particular workday at which he ceases,
such principal activity or activities.
29 U.S.C. § 254(a). Thus, under the Portal-to-Portal Act, “employers are not required to
compensate employees for the commute to and from work unless that commute is either the
‘principal activity’ for which the employee is employed or is ‘integral and indispensable to such
a principal activity.” Smith v. Allegheny Techs., Inc., No. 17-cv-911, 2018 WL 1135570, at *2
(W.D. Pa. Feb. 28, 2018) (citing 29 U.S.C. § 254(a)); Integrity Staffing Solutions, Inc. v. Busk,
135 S. Ct. 513, 516-17 (2014)); see also Lassen v. Hoyt Livery, Inc., 120 F. Supp. 3d 165, 174
(D. Conn. 2015) (noting that while “ordinary home-to-job-site travel” is not compensable under
the Portal-to-Portal Act, the Act “does not change earlier definitions of compensable work,” and
thus holding that limousine drivers’ drive from their homes, where the limousines were parked,
22
to their customers’ pick-up locations was compensable). The Department of Labor has provided
further guidance on what tasks constitute principal activities:
[I]n order for an activity to be a “principal” activity, it need not be predominant in some
way over all other activities engaged in by the employee in performing his job . . . . The
“principal” activities referred to in the statute are activities which the employee is
“employed to perform” . . . . Congress intended the words “principal activities” to be
construed liberally in the light of the foregoing principles to include any work of
consequence performed for an employer, no matter when the work is performed.
29 C.F.R. § 790.8(a). And, as to what activities are “integral and indispensable” to principal
activities, the Supreme Court has explained that “[a]n activity is . . . integral and indispensable to
the principal activities that an employee is employed to perform if it is an intrinsic element of
those activities and one with which the employee cannot dispense if he is to perform his principal
activities.” Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513, 517 (2014).
Here, Plaintiffs posit that travel to and from a participant’s home for a home visit is
“integral and indispensable” to the home visits themselves, and is thus compensable under the
FLSA. Plaintiffs contend that, to support this argument, they need additional discovery. For
example, Plaintiffs maintain that they need to depose the ISAP Program Managers for whom
Defendant produced declarations, and conduct a fact witness deposition of Jeffrey McGee, who
has overseen the ISAP program since 2014.
I agree with Plaintiffs that such discovery could reveal facts that support Plaintiffs’ claim
that travelling to and from home visits is a compensable principal activity, or is integral or
indispensable to a principal activity. Testimony from ISAP Program Managers and fact
testimony from Mr. McGee could illuminate what ISAP Case Specialists were expected to do
immediately before or during the drive to home visits, and how such tasks were related to what
ISAP Case Specialists were expected to do during home visits.
23
Determining whether a certain task is a principal activity, or is integral and indispensable
to a principal activity, is a fact-specific determination. Cf. Attansaio v. Cmty. Health Sys., Inc.,
863 F. Supp. 2d 417, 429 (M.D. Pa. 2012) (denying an employer’s motion to dismiss employees’
FLSA claim, in which an employer argued that the activity at issue was not compensable under
the Portal-to-Portal Act, and noting that whether the activity was “truly integral” to the principal
activities for which the employees were hired “is a very difficult determination on the[] limited
averments” in the complaint, and holding that “further factual development [was] warranted
before it c[ould] be determined”). In arguing that travel to and from home visits is compensable,
Plaintiffs are entitled to discovery beyond the limited discovery that has thus far been permitted.
Accordingly, I will grant Plaintiffs’ Rule 56(d) Motion and deny Defendant’s Motion for Partial
Summary Judgment without prejudice to refile following the completion of merits discovery.8
C.
Equitable Tolling for Potential Opt-In Plaintiffs
Finally, Plaintiffs request that I equitably toll the statute of limitations for any potential
opt-in plaintiffs, for the approximately 13 months that the Notice Motion has been pending.
The FLSA contains a statute of limitations, requiring an employee to commence any
action alleging a willful violation within three years of the accrual date9 (or within two years of
Defendant also seeks Partial Summary Judgment on Plaintiffs’ claims related to home visits under the
Pennsylvania Minimum Wage Act. While not identical to the inquiry under the FLSA, whether travel
time is compensable under the Pennsylvania Minimum Wage Act turns on a similar test: whether the
travel time was “part of the duties of the employee,” which “depend[s] on the nature of the employees’
duties.” Espinoza v. Atlas R.R. Constr., LLC, 657 F. App’x 101, 106 (3d Cir. 2016) (interpreting the
Pennsylvania Minimum Wage Act). Accordingly, I conclude that Defendant’s Motion for Partial
Summary Judgment as to Plaintiffs’ home visit claims under the Pennsylvania Minimum Wage Act is
also premature.
8
9
The accrual date is typically the end of the pay period for which the unpaid compensation should have
been paid. See Genarie v. PRD Mgmt., Inc., No. 04-cv-2082, 2006 WL 436733, at *14 (D.N.J. Feb. 17,
2006) (“It is well settled that a separate cause of action for overtime compensation accrues at each regular
payday immediately following the work period during which the services were rendered and for which
the overtime compensation is claimed.” (internal quotation marks and alterations omitted) (quoting
Mitchell v. Lancaster Milk Co., 185 F. Supp. 66, 70 (M.D. Pa. 1960))).
24
the accrual date for a non-willful violation). See 29 U.S.C. § 255(a). The date on which the
action is considered commenced differs for named plaintiffs and opt-in plaintiffs. For named
plaintiffs—i.e. those plaintiffs “specifically named as a party plaintiff in the complaint” and who
file their written consent with the complaint—the action is considered commenced when the
complaint is filed. 29 U.S.C. § 256(a). However, for any opt-in plaintiff, the action is considered
commenced only when that opt-in plaintiff files a written consent. See id. § 256(b).10 Thus, while
this action has already been “commenced” as to Named Plaintiffs Alvarez and Tellado, and the
ten Opt-In Plaintiffs who have already filed their written consents, the statute of limitations has
continued to run for any other potential opt-in plaintiffs within the collective that I have now
conditionally certified, and it will continue to run until those opt-in plaintiffs file written
consents.
In light of this, Plaintiffs request that I equitably toll the statute of limitations for these
potential opt-in plaintiffs from the date that the Notice Motion was filed, April 3, 2017, until ten
days after my decision on the Notice Motion (i.e., ten days from the date of this Opinion). This is
appropriate, Plaintiffs maintain, because potential opt-in plaintiffs have not yet received a courtapproved notice of this collective action, and thus, “through no fault of their own[,] have been
and continue to be prevented from learning about the existence of this action and the ongoing
expiration of their claims.” (Pls.’ Mem. in Supp. of Mot. for Equitable Tolling 4.)
Defendant responds that equitable tolling for potential opt-in plaintiffs is not appropriate,
because: (1) routine delay in deciding a conditional certification motion and issuing a courtapproved notice is not a circumstance that warrants the extraordinary remedy of equitable
10
In this regard, a collective action differs from a class action under Federal Rule of Civil Procedure 23,
in which the filing of the complaint satisfies the statute of limitations for all class members. See, e.g., In
re Cmty. Bank of N. Virginia Mortg. Lending Practices Litig., 795 F.3d 380, 409 n.27 (3d Cir. 2015).
25
tolling; and (2) the court lacks jurisdiction to equitably toll the statute of limitations for any
potential opt-in plaintiffs, because such persons are not yet parties to this action, and thus any
decision as to their rights would be an impermissible advisory opinion. I agree with Defendant’s
first argument and accordingly need not reach the second.11
Equitable tolling is a doctrine that “can rescue a claim otherwise barred as untimely by a
statute of limitations when a plaintiff has been prevented from filing in a timely manner due to
sufficiently inequitable circumstances.” Santos ex rel. Beato v. United States, 559 F.3d 189, 197
(3d Cir. 2009). The doctrine is “read into every federal statute of limitation including the FLSA.”
Woodard v. FedEx Freight E., Inc., 250 F.R.D. 178, 193 (M.D. Pa. 2008).
However, the United States Court of Appeals for the Third Circuit has described
equitable tolling as an “extraordinary” remedy to be applied “only sparingly.” Santos ex rel.
Beato, 559 F.3d at 197. “A plaintiff will not receive the benefit of equitable tolling unless [he]
exercised due diligence in pursuing and preserving h[is] claim . . . .” Id. (quoting Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 96 (1990)). The absence of prejudice to a defendant “is a factor
to be considered in determining whether the doctrine of equitable tolling should apply once a
factor that might justify such tolling is identified, [but] it is not an independent basis for invoking
the doctrine.” Hedges v. United States, 404 F.3d 744, 753 (3d Cir. 2005) (quoting Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)). And the burden of demonstrating that
11
Neither the United States Court of Appeals for Third Circuit, nor any district court within the Third
Circuit, has yet considered whether tolling the statute of limitations for potential opt-in plaintiffs
constitutes an impermissible advisory opinion. However, one court of appeals and several district courts
that have considered the question have agreed that tolling for potential opt-in plaintiffs is impermissible,
because potential opt-in plaintiffs have not asserted, and may never assert, a claim. See United States v.
Cook, 795 F.2d 987, 994 (Fed. Cir. 1986); see also Ruder v. CWL Invs. LLC, No. 16-cv-4460, 2017 WL
3834783, at *2 (D. Ariz. July 27, 2017) (noting that “only a few courts have considered this particular
jurisdictional argument,” but that “[a]ll who have done so have found a lack of jurisdiction”). While I
need not reach this issue, I note that the position taken by these courts is supported by the Supreme
Court’s holding that the existence of potential opt-in plaintiffs does not make a putative collective action
justiciable where the named plaintiffs’ individual claims become moot. See Genesis Healthcare Corp.,
569 U.S. at 73-78.
26
equitable tolling is appropriate lies with the party seeking to assert it. See Satterfield v. Johnson,
434 F.3d 185, 195 (3d Cir. 2006).
The Third Circuit has identified three “principal situations” in which equitable tolling is
appropriate: “(1) where the defendant has actively misled the plaintiff respecting the plaintiff’s
cause of action, and that deception causes non-compliance with an applicable limitations
provision; (2) where the plaintiff in some extraordinary way has been prevented from asserting
his rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong
forum.” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 591 (3d Cir. 2005). These situations,
however, are not exclusive. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387
(3d Cir. 1994). “In the final analysis . . . a statute of limitations should be tolled only in the rare
situation where equitable tolling is demanded by sound legal principles as well as the interests of
justice.” Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
Here, Plaintiffs do not contend that the first or third “principal situations” identified by
the Third Circuit are applicable: They do not contend that Defendant did anything to mislead
potential opt-in plaintiffs or unnecessarily delay the issuance of a court-approved notice. And
they do not argue that potential opt-in plaintiffs have asserted their rights in the wrong forum.
Rather, Plaintiffs maintain that the second situation is applicable, arguing that the time their
Notice Motion has been pending before me (now approximately 13 months), and the resulting
delay in issuing a court-approved notice, constitute extraordinary circumstances preventing
potential opt-in plaintiffs from learning of this collective action, and asserting their rights in it.
The Third Circuit has not addressed whether, in a collective action, any amount of time
taken by a district court to decide whether to conditionally certify a collective action and issue a
court-approved notice constitutes grounds for equitable tolling. However, several district courts
27
within the Third Circuit—and many more outside this Circuit—have considered the issue and
reached opposite conclusions.
Some district courts within this Circuit have concluded that delays in deciding a motion
for conditional certification, and in approving a notice to potential opt-in plaintiffs, constitute
extraordinary circumstances meriting equitable tolling. See DePalma v. Scotts Co., LLC, No. 13cv-7740, 2017 WL 1243134, at *3-8 (D.N.J. Jan. 20, 2017) (equitably tolling time that
conditional certification motion was pending, a period of just over one year, because tolling
would cause no prejudice to defendant and potential opt-ins had done nothing to cause the
delay); Ornelas v. Hooper Holmes, Inc., No. 12-cv-3106, 2014 WL 7051868, at *10 (D.N.J. Dec.
12, 2014) (holding that equitable tolling due to delay in resolving a motion for conditional
certification was appropriate, either because the delay was an “extraordinary circumstance” or
because equitable tolling was otherwise “demanded by sound legal principles as well as the
interests of justice”); Bosley v. Chubb Corp., No. 04-cv-4598, 2007 WL 9604965, at *1 n.1
(E.D. Pa. Feb. 20, 2007) (holding via footnote order that equitable tolling was appropriate
“because of court delay in approving the Class Notice,” as well as because of a “somewhat
unreasonable” demand made by the defendant with regard to what to include in that notice, and
noting that the defendant would not be prejudiced by tolling); Sperling v. Hoffmann-La Roche,
Inc., 118 F.R.D. 392, 410-411 (D.N.J. 1988) (holding that a delay of more than 19 months in
issuing a decision on notice motions “presented a facially compelling case for equitable tolling,”
but “put[ting] off a final decision on the issue until after the deadline for filing consents”).
By contrast, other courts in this Circuit have held that equitable tolling for potential optin plaintiffs, based solely on delay in deciding whether to conditionally certify a collective
action, is not appropriate. Such courts have concluded that this delay is not an “extraordinary”
28
circumstance, and does not prevent potential opt-in plaintiffs from pursuing their claims. See
Vargas v. Gen. Nutrition Ctrs., No. 10-cv-867, 2012 WL 5336166, at *7-9 (W.D. Pa. Oct. 26,
2012) (declining to equitably toll the nearly one-year period that the filing of a motion for
conditional certification was under consideration, noting that such delay was neither
“extraordinary” nor attributable to wrongdoing on the part of the defendant, and that the delay
did not “prohibit[] any of [the] putative members . . . from pursuing an individual or collective
action for relief”); Titchenell v. Apria Healthcare Inc., No. 11-cv-563, 2012 WL 3731341, at *7
(E.D. Pa. Aug. 29, 2012) (noting that equitable tolling is not appropriate “[i]n the average case in
which delay is attributable to the normal litigation process,” and that lack of “timely knowledge
of the existence of the collective action” and “an opportunity to file a written opt in form . . . are
not extraordinary circumstances that justify equitable tolling”); Tompkins v. Farmers Ins. Exch.,
14-cv-3737, 2015 WL 4931605, at *7 (E.D. Pa. August 18, 2015) (same).
I am mindful of the principled arguments supporting equitable tolling in a case such as
this—in which the time Plaintiffs’ Notice Motion was under consideration is less than optimal.
But more convincing arguments—offered by Defendant as well as by other courts throughout the
country—compel me to reach the opposite conclusion: that delay in issuing a court-approved
notice, caused only by the time that a motion for conditional certification is under consideration
by the court, is not an appropriate ground for equitable tolling.
The overriding principle controlling my analysis is that equitable tolling is an
“extraordinary” remedy, to be applied “sparingly,” Santos ex rel. Beato, 559 F.3d at 197, and
only in “rare situation[s].” Jones, 195 F.3d at 159; see also Wallace v. Kato, 549 U.S. 384, 396
(2007) (“Equitable tolling is a rare remedy to be applied in unusual circumstances, not as a cureall for an entirely common state of affairs.”). Of the three “principal situations” the Third Circuit
29
has identified as meriting equitable tolling, the only arguably applicable one applies “where the
plaintiff in some extraordinary way has been prevented from asserting his or her rights.” Santos
ex rel. Beato, 559 F.3d at 197 (emphasis added). But the passage of time while a conditional
certification motion is under consideration is, unfortunately, not “extraordinary,” but rather a
routine aspect of litigation. See, e.g., Hintergerger v. Catholic Health Sys., No. 08-cv-380, 2009
WL 3464134, at *15 (W.D.N.Y. Oct. 21, 2009) (declining to equitably toll statute of limitations
for 13-month period that plaintiffs’ notice motion was pending, and noting that “the time for
consideration of the conditional certification and related motions is reflective of an increasing
caseload in this District and does not constitute an extraordinary circumstance for tolling
purposes”). Thus, in the absence of some more extraordinary event, or some action on the part of
a defendant to unnecessarily delay the issuance of a court-approved notice, equitable tolling is
not appropriate.12
Moreover, in order for a plaintiff “to receive the benefit of equitable tolling” for a claim,
he or she must have exercised “due diligence in pursuing and preserving [that] claim.” Santos ex
rel. Beato, 559 F.3d at 197. And while a potential opt-in plaintiff who has not received a courtapproved notice may have no knowledge of the collective action, it cannot be said that a
potential plaintiff had no knowledge of his or her claim or right to pursue that claim, either
individually or collectively. As one district court has explained:
12
Several of the cases cited by Plaintiffs in support of their Motion for Equitable Tolling highlight
instances of such arguably extraordinary events. See, e.g., Antonio-Morales v. Bimbo’s Best Produce,
Inc., No. Civ. A. 8:5105, 2009 WL 1591172, at *1 (E.D. La. Apr. 20, 2009) (equitably tolling the statute
of limitations for potential opt-in plaintiffs where the collective action had been stayed at the request of
the U.S. Justice Department pending a criminal investigation); Yahraes v. Restaurant Assocs. Events
Corp., No. 10-cv-935, 2011 WL 844963, at *2-3 (E.D.N.Y. Mar. 8, 2011) (equitably tolling the statute of
limitations for potential opt-in plaintiffs where the collective action had been stayed pending the outcome
of an investigation by the New York State Department of Labor). Other cases highlight instances where
equitable tolling is arguably appropriate due to some action on the part of a defendant to unnecessarily
delay the issuance of a court-approved notice to potential opt-in plaintiffs. See, e.g., Bosley, 2007 WL
9604965, at *1 n.1 (granting equitable tolling in part because of a “somewhat unreasonable demand” by
the defendant as to what should be included in the notice).
30
[T]he underlying right here is to overtime pay for hours worked over 40 per week. In
contrast to those cases where the employer allegedly failed to post requisite notice of
employees’ legal rights, Plaintiffs here have offered no allegations or proof from which
this Court can conclude that a reasonably prudent potential plaintiff would not have
known of his or her right to receive overtime pay after 40 hours. Pursuit of that right is
not dependent on the commencement or certification of a collective action, and a
reasonably diligent person could have acted by pursuing an individual or collective action
for relief.
Hintergerger, 2009 WL 3464134, at *15. Illustrative of this notion is the fact that, in this case,
ten individuals opted in after the Complaint was filed, without having received a court-approved
notice. Thus, while I am not unmindful of the Supreme Court’s recognition of court-approved
notice as a mechanism that, among other things, allows potential opt-in plaintiffs to “make
informed decisions about whether to participate” in a pending collective action, Hoffman-La
Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989), I cannot conclude that all potential opt-in
plaintiffs have been “diligent in pursuing and preserving [their] claims,” merely because they
have not received a court-approved notice of this action.
In sum, “time limitations prescribed by Congress must be treated seriously.” Meyer v.
Riegel Prod. Corp., 720 F.2d 303, 307 (3d Cir. 1983). In creating the “collective action” for
employees to pursue FLSA claims collectively, Congress specifically departed from the class
action mechanism of Federal Rule of Civil Procedure 23 and required any employee wishing to
pursue an FLSA claim to either file his or her own individual action or affirmatively opt in to a
collective action. Congress further specified that an employee’s claim would not be considered
“commenced” for purposes of the statute of limitations until he or she opts in. In establishing
this statutory scheme, “Congress knew . . . that time would lapse between the filing of the
collective action complaint by the named plaintiff and the filing of written consents by the opt-in
plaintiffs, yet it chose not to provide for tolling of the limitations period.” Woodard, 250 F.R.D.
at 194. Indeed, in any putative collective action, a motion for conditional certification will be
31
pending for some amount of time. And in many (if not most) putative collective actions, the
filing of the conditional certification motion will be preceded by some period of certificationrelated discovery. As these stages in the life of a collective action unfold, the statute of
limitations for potential opt-in plaintiffs continues to run, even though such potential plaintiffs
have not received a court-approved notice of the collective action. This will be true in every
collective action.
This is not to say that equitable tolling is never appropriate for opt-in plaintiffs; only that
equitable tolling should not be applied so broadly and routinely that the statutory scheme itself is
altered. Tolling the statute of limitations for all potential opt-in plaintiffs, based only on delay in
issuing a court-approved notice of the collective action, which will occur in every collective
action, alters the statutory scheme and would be inconsistent with the directives of the Third
Circuit and the Supreme Court that equitable tolling be applied sparingly and only in rare cases.
Accordingly, I conclude that Plaintiffs have not met their burden of demonstrating that
equitable tolling for all potential opt-in plaintiffs is appropriate, and will deny Plaintiffs’ Motion
for Equitable Tolling. However, my decision is without prejudice to any individual opt-in
plaintiff seeking equitable tolling based on that individual’s circumstances. See, e.g., Titchenell,
2012 WL 3731341, at *8 (denying plaintiff’s motion to equitably toll the statute of limitations
for all potential opt-in plaintiffs, “without prejudice to the right of an individual plaintiff to seek
equitable tolling at a later stage of the case”).
III.
CONCLUSION
For the reasons set out above, Plaintiffs’ Notice Motion will be granted, and I will
conditionally certify Plaintiffs’ FLSA claims for a collective action. Plaintiffs’ Rule 56(d)
Motion will be granted and Defendant’s Motion for Partial Summary Judgment will be denied
32
without prejudice to refile following the completion of discovery on the merits. Finally,
Plaintiffs’ Motion for Equitable Tolling will be denied.
An appropriate Order follows.
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?