Reynolds et al v. Wyndham Vacation Resorts Inc

Filing 127

ORDER granting 69 Motion to Certify Class. Signed by Honorable Patrick Michael Duffy on December 4, 2015.(jmcg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Richard Reynolds, Sharon Linick,
Linda Neely, Joseph Schubert,
Doreen Mastandrea, Jonathan Anderson,
Steven Bradley, Gerry Conklin,
Jennifer Crawford, Daniel Delpriora,
John Maynard, April McLean,
Mike Smith, William Suitt,
Donna Weinberg, Larry Marshall,
Michelle Johnson, and Edmundo Velasco,
individually and on behalf of other
employees similarly situated,
Plaintiffs,
v.
Wyndham Vacation Resorts, Inc., and
Wyndham Vacation Ownership, Inc.,
Defendants.

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C.A. No.: 4:14-cv-2261-PMD

ORDER

This matter is before the Court on Plaintiffs’ Motion, on behalf of themselves and all
others similarly situated, for Conditional Class Certification (“Motion”) pursuant to the
collective action provision of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) (ECF
No. 69). For the reasons set forth herein, Plaintiffs’ Motion is granted.
BACKGROUND
On June 10, 2014, Plaintiffs commenced this action on behalf of themselves and others
similarly situated, seeking unpaid minimum wages and unpaid overtime wages pursuant to the
FLSA. The named Plaintiffs, as well as those who have subsequently given notice of their
consent to join this action, are current or former sales representatives of Wyndham Vacation

Resorts, Inc. Plaintiffs seek recovery from Wyndham Vacation Resorts, Inc. and Wyndham
Vacation Ownership, Inc. (collectively, “Defendants”).
Plaintiffs primarily allege that Defendants required them to work off-the-clock and that
Defendants’ managers shaved 1 their time to prevent overtime work. Defendants paid Plaintiffs
“a recoverable hourly draw plus commissions on their sales.”

(Pls.’ Mot. Conditional

Certification, ECF No. 69, at 5.) “[A]ny draw paid by [Defendants] that Plaintiffs did not repay
out of commissions was a ‘draw balance’ that was carried forward indefinitely until Plaintiffs
repaid it or ceased to work for [Defendants].” Id. Plaintiffs allege that this put them “under
pressure not to take a lot of draw money, because a high draw balance would mean that
[Defendants] w[ere] losing money on the Plaintiffs’ work.” Id. However, Defendants’ written
policy required sales representatives to be on the clock in order to be paid a commission.
Plaintiffs allege that “[t]hese competing policies resulted in an environment where off the clock
work and time shaving was a matter of course.” Id. Finally, Plaintiffs allege “[a]ll of the
managers knew that the Plaintiffs worked off the clock because the managers directed and
watched this happen, and all the managers accepted that this was normal.” Id. at 6.
Defendants assert Plaintiffs have not presented sufficient evidence to show that the
named plaintiffs are similarly situated to the potential class members, and dispute Plaintiffs’
allegations of off-the-clock work.
PROCEDURAL HISTORY
On July 27, 2015, Plaintiffs filed their Motion for Conditional Certification. Defendants
filed a Response in Opposition on August 13, and Plaintiffs replied on August 21. This matter is
now ripe for consideration.
______________________________________________________________________________
1. Plaintiffs have produced evidence that Defendants’ managers would reduce their hours worked so that they did
not work overtime.

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LEGAL STANDARD
Under the FLSA, plaintiffs may institute a collective action against their employer on
behalf of themselves and similarly situated employees. The FLSA’s collective action provision
states that:
[a]n action to recover [unpaid minimum wage and overtime compensation] may
be maintained against any employer (including a public agency) in any Federal or
State court of competent jurisdiction by any 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 such 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. § 216(b). The mechanism outlined in § 216(b) is designed to facilitate the efficient
adjudication of similar claims by “similarly situated” employees, permitting the consolidation of
individual claims and the pooling of resources in prosecuting such actions against their
employers. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); LaFleur v.
Dollar Tree Stores, Inc., 30 F. Supp. 3d 463, 467 (E.D. Va. 2014), reconsideration denied, 2014
WL 2121563 (E.D. Va. May 20, 2014), and motion to certify appeal denied, 2014 WL 2121721
(E.D. Va. May 20, 2014); Lynch v. United Servs. Auto. Ass’n, 491 F. Supp. 2d 357, 367
(S.D.N.Y. 2007). In deciding whether the named plaintiffs in an FLSA action are “similarly
situated” to other potential plaintiffs, courts generally employ a two-stage approach. 2 Purdham
v. Fairfax Cty. Pub. Sch., 629 F. Supp. 2d 544, 547 (E.D. Va. 2009) (quoting Parker v. Rowland
Express, Inc., 492 F. Supp. 2d 1159, 1164 (D. Minn. 2007)); see also Regan v. City of
Charleston, No. 2:13-cv-03046-PMD, 2014 WL 3530135, at *2 (D.S.C. July 16, 2014)
______________________________________________________________________________
2. Although the Fourth Circuit has not yet enunciated a test for conditional certification of collective actions,
district courts in the Fourth Circuit, including this Court, typically follow the two-stage, or two-step, approach when
deciding whether named plaintiffs are similarly situated to potential plaintiffs. E.g., LaFleur, 30 F. Supp. 3d. at 467
(“District courts within . . . the Fourth Circuit . . . have uniformly employed a two-step inquiry in deciding whether
to certify a collective action under the FLSA . . . .”); Curtis v. Time Warner Entm’t, No. 3:12-cv-2370-JFA, 2013
WL 1874848, at *2 (D.S.C. May 3, 2013) (“Although the Fourth Circuit has not directly addressed the appropriate
standard for certifying a collective action under § 216(b), district courts in this circuit, including this court, follow
the [two-stage] process . . . .”).

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reconsideration denied, 40 F. Supp. 3d 698 (D.S.C. 2014); Pelczynski v. Orange Lake Country
Club, Inc., 284 F.R.D. 364, 367 (D.S.C. 2012); Simons v. Pryor’s, Inc., No. 3:11-cv-0792-CMC,
2011 WL 6012484, at *1 (D.S.C. Nov. 30, 2011); MacGregor v. Farmers Ins. Exch., No. 2:10cv-03088-DCN, 2011 WL 2981466, at *2 (D.S.C. July 22, 2011).
The first step in this process is the “notice,” or “conditional certification,” stage.
Purdham, 629 F. Supp. 2d at 547. Here, “a plaintiff seeks conditional certification by the district
court in order to provide notice to similarly situated plaintiffs” so that they can “opt-in” to the
collective action. Pelczynski, 284 F.R.D. at 367–68. With regard to this notice phase, “[t]he
Supreme Court has held that, in order to expedite the manner in which collective actions under
the FLSA are assembled, ‘district courts have discretion[,] in appropriate cases[,] to
implement . . . § 216(b) . . . by facilitating notice to potential plaintiffs.’” Purdham, 629 F. Supp.
2d at 547 (quoting Hoffman-La Roche, Inc., 493 U.S. at 169). At this stage, the court reviews the
pleadings and affidavits to determine whether the plaintiff has carried his burden of showing that
he is similarly situated to the other putative class members. Pelczynski, 284 F.R.D. at 368;
Purdham, 629 F. Supp. 2d at 547–48.

“Because the court has minimal evidence, this

determination is made using a fairly lenient standard,” Steinberg v. TQ Logistics, Inc., No. 0:10cv-2507-JFA, 2011 WL 1335191, at *1 (D.S.C. Apr. 7, 2011), requiring plaintiffs to make a “a
modest factual showing sufficient to demonstrate that they and potential plaintiffs together were
victims of a common policy or plan that violated the law,” Purdham, 629 F. Supp. 2d at 548. If
the court determines that the proposed class members are similarly situated, the court
conditionally certifies the class.

Steinberg, 2011 WL 1335191, at *1.

The putative class

members are then notified and afforded the opportunity to “opt-in,” and the case proceeds as a
representative action throughout discovery. Id. (citing Scholtisek v. Eldre Corp., 229 F.R.D. 381,

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387 (W.D.N.Y. 2005)); see Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013)
(citation omitted) (“‘[C]onditional certification’ does not produce a class with an independent
legal status, or join additional parties to the action.

The sole consequence of conditional

certification is the sending of court-approved written notice to employees, who in turn become
parties to a collective action only by filing written consent with the court.” (citing § 216(b))).
Second, after the court has conditionally certified the class, the potential class members
have been identified and notified, and discovery has been completed, “a defendant may then
move to decertify the collective action, pointing to a more developed record to support its
contention that the plaintiffs are not similarly situated to the extent that a collective action would
be the appropriate vehicle for relief.”

Pelczynski, 284 F.R.D. at 368.

At this optional

“decertification stage,” the court applies a heightened fact-specific standard to the “similarly
situated” analysis. Steinberg, 2011 WL 1335191, at *2; see Pelczynski, 284 F.R.D. at 368.
“Courts have identified a number of factors to consider at this stage, including (1) disparate
factual and employment settings of the individual plaintiffs; (2) the various defenses available to
defendants that appear to be individual to each plaintiff; and (3) fairness and procedural
considerations.” Curtis, 2013 WL 1874848, at *3 (internal quotation marks omitted). If the
court determines that the plaintiffs are not, in fact, similarly situated, it may decertify the class,
dismiss the opt-in plaintiffs’ claims without prejudice, and permit the named plaintiffs to proceed
on their individual claims. Id.
“When sufficient evidence in the record at the initial ‘notice’ stage makes it clear that
notice is not appropriate, however, a court can collapse the two stages of the analysis and deny
certification outright.” Purdham, 629 F. Supp. 2d at 547 (citing Holt v. Rite Aid Corp., 333 F.
Supp. 2d 1265, 1273–74 (M.D. Ala. 2004)). As discussed above, a fairly lenient standard for

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conditional certification is appropriate where the parties have only minimal evidence. However,
Plaintiffs have used evidence obtained during discovery in support of their Motion, and the
parties have substantially completed discovery.

Under such circumstances, “it would be

‘inequitable . . . to allow plaintiffs to proceed with the more lenient standard applied in cases
where the parties have not yet begun discovery.’” MacGregor, 2012 WL 2974679, at *3
(quoting McClean v. Health Sys., Inc., No. 11-03037-CV-S-DGK, 2011 WL 615309, at *4
(W.D. Mo. Dec. 12, 2011)). Accordingly, the Court will apply a more stringent intermediate
standard to Plaintiffs’ Motion and consider the decertification factors discussed above in
deciding whether conditional certification is appropriate. See McClean, 2011 WL 6153091, at
*4; Davis v. Charoen Pokphand (USA), Inc., 303 F. Supp. 2d 1272, 1276 (M.D. Ala. 2004).
ANALYSIS
Plaintiffs request that this Court enter an order: (1) conditionally certifying a class of
individual timeshare salespersons (“Proposed Class”), as detailed further herein; (2) requiring
Defendants to produce the full names, home addresses, e-mail addresses, telephone numbers, and
the last four digits of each class member’s Social Security number; and (3) authorizing Plaintiffs
to issue a notice to the Proposed Class. The Court will address each request seriatim, along with
Defendants’ objections thereto.
1. Conditional Certification
Plaintiffs move to conditionally certify the following Proposed Class:
All current and former employees who held the title of “Sales Representative” or
the equivalent who (1) sold timeshare properties, and (2) worked more than forty
(40) hours per week without receiving overtime wages at the Myrtle Beach
locations of Wyndham Vacation Resorts, Inc.
(Pls.’ Mot. Conditional Certification, ECF No. 69, at 1–2.)

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Defendants assert that “Plaintiffs fail to carry their burden of showing that they are
similarly situated” to the members of the Proposed Class. (Defs.’ Resp. Opp’n Pls.’ Mot.
Conditional Certification, ECF No. 80, at 19.) The Court disagrees. As discussed above, the
Court will apply a heightened level of scrutiny to Plaintiffs’ Motion because the parties have
substantially completed discovery. Accordingly, it is appropriate for the Court to consider the
factors commonly used at the decertification stage to determine whether certification is
warranted. Nonetheless, the Court is convinced that conditional certification of the Proposed
Class is appropriate because the Proposed Class is similarly situated to the named Plaintiffs.
Plaintiffs seek to conditionally certify a class that includes employees who held three
different types of positions, 3 were paid differently, worked during different time periods, and
worked at six different locations in Myrtle Beach. Defendants assert that these differences make
“each of their claims highly individualized and unsuitable for class treatment.” (Defs.’ Resp.
Opp’n Pls.’ Mot. Conditional Certification, ECF No. 80, at 2.) Despite these differences, the
Court finds that the putative class members all had similar responsibilities and that Plaintiffs
have shown Defendants engaged in a common scheme or plan of encouraging off-the-clock work
and time shaving for purposes of conditional certification. 4 Plaintiffs, and all putative class
members, were actively trying to sell various Wyndham vacation packages 5 to either new or
______________________________________________________________________________
3.
“Wyndham employs individuals in varying sales positions including In-House Sales Representative (“IH
Rep”), Frontline Sales Representative (“FL Rep”) and Discovery Representative (“Disco Rep”). These employees
meet with different types of potential owners to sell Wyndham’s packages.” (Defs.’ Resp. Opp’n Pls.’ Mot.
Conditional Certification, ECF No. 80, at 2.)
4. Almost every named plaintiff has provided a declaration that they worked off-the-clock or their time was
shaved, or, in some cases, both. (See, e.g., Reynolds Decl., ECF No. 69-1, at 3; Neely Decl., ECF No. 69-1, at 7;
Schubert Decl., ECF No. 69-1, at 13; Mastandrea Decl., ECF No. 69-1, at 21–22; Anderson Decl., ECF No. 69-1, at
25–26; Gary Conklin Decl., ECF No. 69-1, at 34; Smith Decl., ECF No. 69-1, at 43; McLean Decl., ECF No. 69-2,
at 1–2; Delpriora Decl., ECF No. 69-2, at 13; Linick Decl., ECF No. 69-2, at 16; Weinberg Decl., ECF No. 69-2, at
20; Velasco Decl., ECF No. 69-2, at 22–23; Marshall Decl., ECF No. 69-2, at 27; Brook Conklin Decl., ECF No.
69-2, at 31–32.)
5.

Defendants characterize their timeshares as “vacation packages”.

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returning customers. Most, but not all, sales representatives presented these packages by taking
customers on a tour.

The fact that some of the putative class members, particularly the

Discovery Representatives, did not use the tour format does not preclude conditional
certification.

Plaintiffs’ varying locations, supervisors, and customers do not present such

disparate factual and employment settings to warrant individual actions in lieu of a collective
action. The critical inquiry here is whether Plaintiffs and the putative class members were
subject to a common scheme or plan. Pelczynski, 284 F.R.D. at 368 (citing Purdham, 629 F.
Supp. 2d at 548). Defendants correctly point out that Plaintiffs rely on a variety of theories of
liability.

Nonetheless, “[e]ach of the Plaintiffs has provided declarations and deposition

testimony stating [that they were required to work off the clock], along with the contention that
they worked overtime without being paid for it.”

(Pls.’ Reply Supp. Mot. Conditional

Certification, ECF No. 90, at 8.) Thus, although the individual theories may vary, the overall
allegations are the same. “[T]he existence of varied circumstances leading to off-the-clock work
does not undermine the core issue of whether a practice of allowing unpaid off-the-clock work
existed.” LaFleur, 30 F. Supp. 3d at 473. Accordingly, Defendants’ argument fails.
Defendants also argue that their policy is to pay their sales representatives for all hours
worked and that working off the clock is strictly prohibited. In particular, Defendants state that
“[i]t is the employee’s responsibility to verify the accuracy of time records.” (Defs.’ Resp.
Opp’n Pls.’ Mot. Conditional Certification, ECF No. 80, at 10.) Additionally, Defendants assert
their policy “specifies that both approved and non-approved overtime work must be paid” and
that managers “are permitted only to make authorized edits to time that accurately reflect time
worked and PTO and Sick Time.” Id. at 10–11. Defendants point out that their written policy
prohibits employees from beginning work before clocking in, that employees are to notify their

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manager of any hours worked while not on site, and that all overtime must be paid whether or
not it is approved in advance. They further contend this “policy has teeth because, effective
February 2014, any Sales Rep who is not clocked in for the entire tour is not eligible for
commission on that tour.” Id. at 11. Defendants state that “a number of Plaintiffs . . . received
written corrective actions during their employment for failing to punch in and punch out” and
that one plaintiff was fired because, among other things, he worked off the clock. Id. at 12.
Finally, Defendants assert that “[a]ll Plaintiffs signed copies of [Defendants’] actual timekeeping
policy or an acknowledgement of receiving that policy.” Id. at 11. Defendants cite Pacheco v.
Boar’s Head Provisions Co. to support their position, where the court stated, “[b]ecause the
company’s written policy clearly requires that employees be paid for donning and doffing time,
the Court cannot simply accept Plaintiffs’ allegations that there is a common or uniform practice
of not paying employees for donning and doffing time.” 671 F. Supp. 2d 957, 962 (W.D. Mich.
2009).
Although Defendants’ argument presents questions about the veracity of Plaintiffs’
declarations, it is insufficient to justify denying conditional certification.

Even though

Defendants’ written policy clearly prohibits working off the clock and retroactively adjusting
hours, Defendants’ practice may very well differ from its written policy. Accordingly, Plaintiffs’
Motion cannot be defeated solely by reference to a written policy in light of Plaintiffs’
declarations that the policy has been violated. Here, Plaintiffs have produced evidence showing
that “no less than ten managers . . . all working at different . . . offices, instructed the Plaintiffs
to work off the clock.” (Pls.’ Reply Supp. Mot. Conditional Certification, ECF No. 90, at 6.)
The Court finds that such a prevailing practice demonstrates a strong inference of a common
scheme or plan being applied to the named Plaintiffs and the putative class members.

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Defendants’ next argument is that their payroll policies do not violate the FLSA.
Defendants are correct that paying employees an hourly draw and applying chargebacks likely
does not constitute a per se violation of the FLSA. This claim goes to the merits of the case and
is not relevant to the conditional certification determination. Accordingly, the Court declines to
deny Plaintiff’s Motion on the basis that Defendants’ policies do not violate the FLSA.
Next, Defendants argue that Plaintiffs’ claims arise from widely disparate factual and
employment settings. First, Defendants assert that Plaintiffs’ disparate amounts of claimed
overtime will require an individualized and fact-intensive inquiry. In particular, Defendants state
that “whether any particular Plaintiff is owed any additional wages must be determined
individually and . . . requires an individualized credibility inquiry.” (Defs.’ Resp. Opp’n Pls.’
Mot. Conditional Certification, ECF No. 80, at 29.) Defendants cite to this Court’s decision in
Pelczynski v. Orange Lake Country Club for the proposition that where individualized credibility
determinations must be made, class certification must be denied. The Court finds that Pelczynski
is distinguishable from this case on two grounds. First, the number of putative class members
involved in Pelczynski was fairly small. 284 F.R.D. at 369. Here, “[t]he potential class numbers
in the hundreds.” (Pls.’ Reply Supp. Mot. Conditional Certification, ECF No. 90, at 19.)
Second, many of the potential class members in Pelczynski indicated that they received adequate
compensation when the defendant performed an audit of their wages. 284 F.R.D. at 369. Many
of those employees signed “an acknowledgement form admitting receipt of all pay owed.” Id.
The court stated that “[t]hese admissions will likely work against the putative plaintiffs, requiring
additional evidence to overcome credibility deficiencies.” Here, there is no such credibility issue
since Defendants have not presented any evidence of signed acknowledgement forms or the like.

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Accordingly, while some of the background facts of Pelczynski are facially similar, the facts on
which the Court denied certification are distinctly different.
Second, Defendants assert that because Plaintiffs’ claims are individualized, they cannot
be proven through representative testimony. In particular, Defendants state that representative
testimony will not suffice in determining liability. (Defs.’ Resp. Opp’n Pls.’ Mot. Conditional
Certification, ECF No. 80, at 34.) “A collective action does not necessitate that there be no
differences among class members, nor does it prohibit individualized inquiry in connection with
fashioning the specific relief or damages to be awarded to each class member.” LaFleur, 30 F.
Supp. 3d at 474 (quoting Houston v. URS Corp., 591 F. Supp. 2d 827, 832 (E.D. Va. 2008)
(internal quotation marks omitted)). “The court should determine whether ‘there is a meaningful
nexus that binds Plaintiffs’ claims together and that the similarities in their claims outweigh their
differences.’” Butler v. DirectSAT USA, LLC, 47 F. Supp. 3d 300, 311 (D. Md. 2014) (quoting
Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 537 (S.D. Tex. 2008)). Defendants cite to a
Seventh Circuit decision to decertify a class to support their argument against conditional
certification.

See Espencheid v. DirectSAT USA, LLC, 705 F.3d 770 (7th Cir. 2013).

In

particular, Defendants assert that where, as here, there are some factual differences between the
plaintiffs, representative testimony may not be used and thus the purpose of a collective action is
defeated.

As discussed in Butler v. DirectSAT USA, LLC, however, the Seventh Circuit’s

decision in Espencheid turned in part on the fact that plaintiffs’ counsel failed to provide any
genuinely representative evidence, and thus the district judge would be faced with a multitude of
separate hearings on damages. 47 F. 3d at 312 (citing Espencheid, 705 F.3d at 773–75).
Additionally, in Espencheid, “the Seventh Circuit equated the standard to maintain an FLSA
collective with that for maintaining a class action pursuant to Fed. R. Civ. P. 23.” Id. (citing

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Espencheid, 705 F.3d at 771–72). “The standards are not the same, however, and many courts
have resisted using them interchangeably.” Id. at 313; see also Dorsey v. TGT Consulting, LLC,
888 F. Supp. 2d 670, 687 & n.14 (D. Md. 2012) (collecting cases). Thus, Espencheid is not
persuasive. Additionally, while damages may require an individualized inquiry, the Court is not
convinced that liability or defenses could not be adjudicated using representative testimony.
Finally, the court in Butler made clear that a collective action may be efficient even if one
determination requires individualized inquiry. Id. at 315. Thus, even if the Court held a plethora
of mini-trials on the question of damages, it could still be more efficient for the action to proceed
on a collective basis because the Court could collectively adjudicate liability and class-wide
defenses. Accordingly, the Court will not deny conditional certification on that basis.
Finally, Defendants assert that Plaintiffs are subject to individual defenses and that
procedural and other fairness considerations preclude conditional certification. In particular,
Defendants argue that: (1) mini-trials will be necessary to determine whether some plaintiffs’
off-the-clock work was compensable; (2) some plaintiffs’ claims are time-barred by the statute of
limitations; (3) some plaintiffs’ claims are subject to equitable defenses; (4) the Discovery
Representatives are subject to the FLSA’s Retail Sales Exemption; and (5) spoliation preludes
some plaintiffs from testifying.

The Court disagrees.

Although Defendants assert certain

individual defenses, they have also asserted defenses applicable to the whole class in their
Motion for Summary Judgment (ECF No. 96). The Court finds that adjudicating the class-wide
defenses on a collective basis would be far more efficient. “Courts have allowed the use of
representative testimony in cases involving allegations of unpaid overtime.” Falcon, 580 F.
Supp. 2d at 540 (collecting cases). As demonstrated by the district court in Falcon, Defendants’
individual defenses “can be adequately raised at a trial involving representative testimony.” Id.

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“[S]tanding alone, the prospect of individual defenses should not defeat authorization of a
collective action.” Rodolico v. Unisys Corp., 199 F.R.D. 468, 484 (E.D.N.Y. 2001) (citing
Hyman v. First Union Corp., 982 F. Supp. 1, 5 (D.D.C. 1997)) (stating in Hyman that courts
should not look to any one factor when considering whether to certify).
As for fairness and procedural considerations, the Court finds that adjudicating Plaintiffs’
claims in a collective action is in the interest of fairness and comports with the broad remedial
goals of the FLSA. As repeatedly emphasized by Defendants, the number of potential opt-in
plaintiffs in this case could be substantial. Accordingly, “it would not be in the interest of
judicial economy to require the claims be adjudicated in [] individual trials.” Falcon, 58 F.
Supp. 2d at 541.

The Supreme Court “has acknowledged that Congress intended to give

‘plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of
resources.’” Id. (quoting Hoffman La-Roche, Inc., 493 U.S. at 170). In light of that intent, the
Court finds conditional certification appropriate, even under the more searching standard
ordinarily used for decertification.
2. Production of Potential Class Members’ Information
Defendants oppose Plaintiffs’ request for the potential class members’ telephone numbers
and email addresses. Defendants cite to this Court’s order in Regan v. City of Charleston as
support for the proposition that U.S. Mail notice is “all courts in this Circuit, including this Court
require.” (Defs.’ Resp. Opp’n Pls.’ Mot. Conditional Certification, ECF No. 80, at 39 n.12.)
However, this Court’s order denying the plaintiffs’ request for phone numbers in Regan is more
nuanced than Defendants represent. As stated in Regan,
[W]here, as here, the plaintiffs have provided no basis for their need for the
telephone numbers or email addresses of potential plaintiffs and where the
defendant has objected to the production of such information, the Court is

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persuaded by the case law in this circuit that tends to counsel against ordering
production.
Regan, 2014 WL 3530135, at *6. The present case is clearly distinguishable from Regan
because Plaintiffs have demonstrated a basis for their need for the email addresses of the
potential class members.

In fact, this Court has ordered the production of potential class

members’ email addresses in McCoy v. RPM Management Group, Inc. As stated in Butler,
“‘[C]ommunication through email is [now] the norm.’” 876 F. Supp. 2d at 575 (quoting In re
Deloitte & Touche, LLP Overtime Litig., No. 11 Civ. 2461(RMB)(THK), 2012 WL 340114, at
*2 (S.D.N.Y. Jan. 17, 2012)). Plaintiffs note as their basis that “[e]-mail addresses are desirable
as an additional means of mailing, because e-mail addresses can remain the same even after a
physical address change.”

(Pls.’ Mot. Conditional Certification, ECF No. 69, at 20.)

Accordingly, Plaintiffs’ request to also send notice by email is granted. Additionally, the Court
grants Plaintiffs’ request for the dates of employment of potential class members because
disclosing dates is not unduly intrusive to the potential class members and will reduce costs
because Plaintiffs will notify only class members whose claims are not time-barred. However,
the Court denies Plaintiff’s request for the telephone numbers, dates of birth, and Social Security
numbers of the potential class members. 6
3. Form of the Court-Authorized Notice
Defendants requested that, should this Court issue an order granting conditional
certification, they be afforded an opportunity to confer with Plaintiffs for fourteen days as to the
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6. Although email addresses are more routinely disclosed, district courts in this circuit have required a showing of
a “special need” before requiring the disclosure of telephone numbers. See Ruiz v. Monterey of Lusby, Inc., No.
DKC 13-3792, 2014 WL 1793786, at *3 n.1 (D. Md. May 5, 2014) (“Defendants will not . . . be required to provide
phone numbers for potential opt-in plaintiffs at this time because Plaintiffs have made no showing of any ‘special
need’ for the disclosure of this information.”) (quoting Calderon v. Geico Gen. Ins. Co., No. RWT 10cv1958, 2011
WL 98197, at *9 (D. Md. Jan. 12, 2011)); see also Amrhein v. Regency Mgmt. Servs., LLC, No. SKG-13-1114, 2014
WL 1155356, at *10 (D. Md. Mar. 20, 2014) (“Courts in this district hold that absent a showing by plaintiffs of a
‘special need’ for disclosure of class members’ telephone numbers or other personal information, such as social
security numbers or dates of birth, ordering such disclosure is inappropriate.”).

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form of the notice and consent documents. The Court grants Defendants’ request and urges the
parties to agree on mutually acceptable notice and consent forms.
CONCLUSION
For the foregoing reasons, it is ORDERED that Plaintiffs’ Motion for Conditional
Certification is GRANTED.
AND IT IS SO ORDERED.

December 4, 2015
Charleston, South Carolina

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