Wesley v. Experian Information Solutions, Inc.
Filing
24
MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that Plaintiff's First Stage Motion for Notice to Potential Plaintiffs (Dkt. 11 ) is hereby GRANTED. Signed by District Judge Amos L. Mazzant, III on 6/25/2018. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
RICKEY WESLEY, ON BEHALF OF
HERSELF AND ALL OTHERS
SIMILARLY SITUATED
§
§
§ Civil Action No. 4:18-CV-00005
§ Judge Mazzant
v.
§
§
EXPERIAN INFORMATION SOLUTIONS, §
INC.
§
§
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s First Stage Motion for Notice to Potential Plaintiffs
(Dkt. #11). After reviewing the motion and the relevant pleadings, the Court finds that Plaintiff’s
motion is granted.
BACKGROUND
Plaintiff Rickey Wesley (“Plaintiff or Wesley”) was employed by Defendant Experian
Information Solutions, Inc. (“Experian”) as a U.S.-based Information Technology (“IT”)
employee. Plaintiff’s responsibilities include troubleshooting and supporting Experian’s global
security operations. Experian classifies Plaintiff as hourly-paid and non-exempt from the overtime
requirements of the Fair Labor Standards Act (“FLSA”).
Because Experian must monitor and maintain information technologies that protect
sensitive and confidential information of their clients, there are times when its employees must
answer calls for issues that arise outside of their regular work hours. Until October 2017, Experian
maintained an On Call, Standby and Call-Back Time Policy (the “Policy”) that applied to all USbased non-exempt employees (Dkt. #11, Exhibit C). The Policy required employees to perform
work beyond their regularly scheduled shifts and assigned tasks while on either “standby” or “on
call.” Compensation for overtime was different based on the designation. For “on call” work,
employees were assured
Any time that you actually provide assistance – over the telephone, by logging in
to work remotely, or by reporting to work – is work time for which you will receive
your regular rate of pay or overtime pay, as appropriate.
(Dkt. #11, Exhibit C at ¶ 3.1). For “standby” work, employees were assured
If, because of critical business needs, you are required to be more immediately
available to begin work than the on-call standards, these hours would be considered
standby time and you will receive your regular or overtime rate of pay for all
standby time.
(Dkt. #11, Exhibit C at ¶ 3.3). Accordingly, in contrast to being compensated for all “standby”
time, these employees were not compensated for all hours spent “on call”. Rather, they were only
compensated for the time spend acknowledging and responding to a call.
Plaintiff moves for conditional certification as a collective action under the FLSA. Plaintiff
alleges that the putative class consists of “Defendant’s current and former [non-exempt] U.S.based IT employees who were paid on an hourly basis, who worked from [3 years prior to date of
Order] to the present, and who Experian subjected to the ‘On Call, Standby, and Call-Back Time’
Policy that was in effect until approximately October 2017.” (Dkt. #11 at p. 5). The Court will
refer to this defined group as “Class Employees”. Plaintiff alleges that Defendant did not pay
Class Employees overtime compensation for hours worked over forty per week in violation of the
FLSA, 29 U.S.C. § 201, et seq.
Plaintiff and four potential opt-in Plaintiffs state that they usually worked in excess of forty
(40) hours per workweek and that Defendant did not pay them overtime for these excess hours.
Plaintiff and opt-in Plaintiffs further allege that Class Employees were not compensated for all
hours of work, specifically including those when they were on “standby” and those when they
were merely “on call” but still subject to “standby” conditions. (Dkt. #11 at p. 9, Exhibits J, K,
2
L, M). Defendant classified Class Employees as non-exempt, hourly employees under the FLSA.
On January 3, 2018, Plaintiff filed a complaint as a collective action pursuant to 29 U.S.C.
§ 216(b) against Defendant (Dkt. #1). On April 17, 2018, Plaintiff’s filed the present First Stage
Motion for Notice to Potential Plaintiffs (Dkt. #11). On May 5, 2018, Defendant filed its response
in opposition (Dkt. #16). On May 22, 2018, Plaintiff filed a reply in support (Dkt. #22). On
May 29, 2018, Defendant filed a sur-reply (Dkt. #23).
LEGAL STANDARD
Section 207(a) of the FLSA requires covered employers to compensate nonexempt
employees at overtime rates for time worked in excess of statutorily defined maximum hours. 29
U.S.C. § 207(a). Section 13(a) (1) of FLSA exempts employees occupying “bona fide executive,
administrative, or professional” positions from the overtime requirements of the FLSA. 29 U.S.C.
§ 213(a)(1). “The exempt or nonexempt status of any particular employee must be determined on
the basis of whether the employee’s salary and duties meet the requirements of the regulations in
this part.” Id. The Code of Federal Regulations provides a “short test” to classify employees for
the executive or administrative exemptions. An employee can be classified as an exempt executive
if: (1) the employee is paid a salary of not less than $455 per week; (2) the employee’s primary
duty is the management of the enterprise or a subdivision; (3) the employee customarily and
regularly directs the work of two or more employees; and (4) the employee has the authority to
hire or fire other employees, or the authority to recommend such actions. 29 C.F.R. § 541.1(a).
An employee can be classified as an exempt administrative employee if: (1) the employee is paid
a salary of not less than $455 per week; (2) the employee’s primary duty is the performance of
office or nonmanual work directly related to the management or general business of the employer;
3
and (3) the employee’s primary duty includes the exercise of discretion and independent judgment
with respect to matters of significance. 29 C.F.R. § 541.2.
The FLSA gives employees the right to bring an action on behalf of themselves, as well as
“other employees similarly situated.” 29 U.S.C. § 216(b). “Under § 216(b), district courts have
the discretionary power to conditionally certify collective actions and authorize notice to potential
class members.” Tice v. AOC Senior Home Health Corp., 826 F. Supp. 2d 990, 994
(E.D. Tex. 2011). While the Fifth Circuit has not specifically addressed the meaning of “similarly
situated” in this context, “[t]wo approaches are used by courts to determine whether collective
treatment under §216(b) is appropriate: (1) the two-stage class certification set forth in Lusardi v.
Xerox, Corp., 118 F.R.D. 351 (D. N.J. 1987); and (2) the ‘Spurious Class Action’ method outlined
in Shushan v. Univ. of Colorado, 132 F.R.D. 263 (D. Colo. 1990).” Cripe v. Denison Glass Mirror,
Inc., No. 4:11-CV-224, 2012 WL 947455, at *3 (E.D. Tex. Jan 27, 2012) report and
recommendation adopted, 2012 WL 947362 (E.D. Tex. Mar. 20, 2012); Villatoro v. Kim Son Rest,
L.P., 286 F. Supp. 2d 807, 809 (S.D. Tex. 2003). “The Lusardi two-stage approach is the
prevailing standard among federal courts and is the standard most frequently used by this court.”
Tice, 826 F. Supp. 2d at 994 (citations omitted). As such, the Court will apply the Lusardi
approach in this case.
Under Lusardi, “certification for a collective action under § 216(b) is divided into two
stages: (1) the notice stage; and (2) the merits stage.” Id. “At the notice stage, the district court
makes a decision—usually based only on the pleadings and any affidavits which have been
submitted—whether notice of the action should be given to potential class members.” Mooney v.
Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). Because the Court has minimal evidence before it at
4
this stage, “the determination is made using a fairly lenient standard requiring noting more than
substantial allegations that the putative class members were victims of a single decision, policy or
plan.” Tice, 826 F. Supp. 2d at 995. “Notice is appropriate if the court concludes that there is
‘some factual nexus which binds the named plaintiffs and potential class members together as
victims of a particular alleged [policy or practice].’” Allen v. McWane, Inc., No. 2:06-CV-158
(TJW), 2006 WL 3246531, at *2 (E.D. Tex. Nov. 7, 2006). “If the first step [of the Lusardi
approach] is satisfied, the court conditionally certifies a class; and the action proceeds as a
collective action during discovery.” Sedtal v. Genuine Parts Co., No. 1:08-CV-413-TH, 2009 WL
2216593, at *3 (E.D. Tex. July 23, 2009).
ANALYSIS
This case is in the first stage under Lusardi. At this stage, “Plaintiff bears the burden of
presenting preliminary facts to show that there is a similarly situated group of potential plaintiffs.”
Cripe, 2012 WL 947455, at *2. This does not mean that their positions must be identical, as “the
court need not find uniformity in each and every aspect of employment to determine a class of
employees are similarly situated [under § 216(b)].” Tice, 826 F. Supp. 2d at 995-96. Rather, “the
relevant inquiry is whether the potential class members performed the same basic tasks and were
subject to the same pay practices.” Id. at 996. “[P]laintiff need only show that their positions are
similar to the potential plaintiffs[.]” Id. at 995.
Statute of Limitations
The statute of limitations for an FLSA claim is two years, unless the violation was willful,
in which case the limitations period is three years. 29 U.S.C. § 255(a). Under the FLSA, a
violation is “willful” if the employer either “knew or showed reckless disregard for . . . whether
its conduct was prohibited by the statute.” Singer v. City of Waco, Tex., 324 F.3d 813, 821
5
(5th Cir. 2003). If a Plaintiff alleges a willful violation of the FLSA, courts routinely grant
conditional certification and “send notice to the putative class using a three-year statute of
limitations.”
Page
v.
Crescent
Directional
Drilling,
L.P.,
No.
5:15-CV-193-RP,
2015 WL 12660425, at *3 (W.D. Tex. Dec. 10, 2015) (citing McPherson v. LEAM Drilling Sys.,
LLC, 4:14-CV-02361, 2015 WL 1470554, at *15 (S.D. Tex. Mar. 30, 2015); Rousseau v.
Frederick's Bistro, LTD, 5: 09-CV-651-XR, 2010 WL 1425599, at *3 (W.D. Tex. Apr. 7, 2010)).
“Whether Defendant acted willfully is a question of fact, and the Court will not make a
determination on that question before discovery has been completed.” Id.
The Court finds that notice should be provided within the longer three-year statute of
limitations. Plaintiff alleged that Defendant willfully violated the FLSA. (Dkt. #1 at ¶ 16).
Discovery has not occurred in this case. The Court will not determine the factual question of
whether Defendant acted willfully before discovery is completed. “The consequences of sending
notice to too few potential plaintiffs are high, as the FLSA’s statute of limitations continues to run
on each individual’s claim until they file their written consent to join the collective action with the
court . . . By contrast, the consequences of sending notice to too many potential plaintiffs can be
remedied – a class may be decertified.” Page, 2015 WL 12660425, at *3.
Policy Requiring Off-the-Clock Overtime
Plaintiff argues Defendant had a policy of requiring Class Employees to work in excess of
forty hours per week and did not pay Class Employees for all hours worked. Four potential opt-in
Plaintiffs, Freddie Jenkins, Joseph O’Connor, Nrique Smith, and Jose Ulloa, have consented to
join this suit and have submitted declarations in support of Plaintiff’s claims (Dkt. #11, Exhibits
J, K, L, M). Plaintiff and the potential opt-in Plaintiffs state that Defendant had a policy of
requiring Class Employees to perform “standby,” “on call,” and additional work for which they
6
were not paid. Further, they assert that Class Employees were not compensated for all hours of
work, specifically including those when they were on ‘standby’ and those when they were merely
“on call” but still subject to “standby” conditions (Dkt. #11 at p. 9; Dkt. #11, Exhibits J, K, L, M).
Plaintiff has satisfied the lenient Lusardi standard requiring nothing more than substantial
allegations that the putative class members were victims of a single decision, policy, or plan.
Plaintiff and opt-in Plaintiffs here sufficiently alleged that they were victims of a similar plan under
which they did not receive overtime compensation because Defendant had a policy of requiring
Class Employees to perform “standby,” “on call,” and additional work for which they were not
paid. See Tice, 826 F. Supp. 2d at 996 (granting conditional certification where all Plaintiffs
claimed that they were required to work overtime without appropriate compensation); Foraker v.
Highpoint Sw., Servs., L.P., No. CIV.A. H-06-1856, 2006 WL 2585047, at *4 (S.D. Tex. Sept. 7,
2006) (granting conditional certification because “Plaintiffs’ claim [was] fundamentally that they
routinely worked in excess of forty hours per week, that they did not receive any overtime pay,
and that [Defendant’s] practice or policy of failing to pay overtime affected the proposed class
members in exactly the same way.”).
Defendants contend that collective treatment is not appropriate because “all of the hourly
paid workers have vastly different job duties, schedules, and the policy at issue was applied
differently to all different positions subject to collective action” (Dkt. #16 at p. 1) (internal
quotations omitted). However, this case is in the first stage under Lusardi. Plaintiff’s burden at
this stage is to present “preliminary facts to show that there is a similarly situated group of potential
plaintiffs.” Cripe, 2012 WL 947455, at *2. Again, “[t]he court need not find uniformity in each
and every aspect of employment to determine a class of employees are similarly situated [under
§216(b)].” Tice, 826 F. Supp. 2d at 995-96. “[P]laintiff need only show that their positions are
7
similar to the potential plaintiffs” and “the potential class members performed the same basic tasks
and were subject to the same pay practices.” Id. at 995–996.
Here, Plaintiff has submitted sufficient evidence that each of the Class Employees’ primary
duties involved information technology support, which includes answering calls pursuant to the
Policy. Plaintiff’s positions do not need to be identical for the Court to conditionally certify the
class. “[A] particular need to address each perspective member of the collective action as an
individual will be addressed in the second stage.” Miranda v. Mahard Egg Farm, Inc., No. 4:15CV-406, 2016 WL 1704861, at *3 (E.D. Tex. Apr. 28, 2016); Stier v. Great Plains Nat'l Bank, No.
4:15-CV-519, 2016 WL 1572194, at *2 (E.D. Tex. Apr. 19, 2016). Thus, Plaintiff has met the
lenient standard of establishing “some factual nexus which binds the named plaintiffs and potential
class members together as victims of a particular alleged [policy or practice].” Allen v. McWane,
Inc., No. 2:06-CV-158 (TJW), 2006 WL 3246531, at *2 (E.D. Tex. Nov. 7, 2006).
CONCLUSION
The Court finds that Plaintiff has come forward with sufficient evidence to warrant
conditional certification of a collective action and notice to potential class members. It is therefore
ORDERED that Plaintiff’s First Stage Motion for Notice to Potential Plaintiffs (Dkt. #11) is
hereby GRANTED.
It is further ORDERED, ADJUDGED AND DECREED that the Court conditionally
certifies a class of Defendant’s current and former employees that is described as follows and
referred to herein as the “Workers”:
All current and former persons who were employed by Experian Information
Solutions, Inc. as “non-exempt, U.S.-based IT employees who were paid on an
hourly basis, who were subjected to the “On Call, Standby, and Call-Back Time”
Policy that was in effect until approximately October 2017, at any time during the
three-year period preceding the date of this Order.
8
It is further ORDERED, ADJUDGED AND DECREED that the Notice and Consent to
Join Form presented to the Court as Exhibit A and Exhibit B to Docket #11 is conditionally
approved, subject to Plaintiff’s insertion of the appropriate dates.
Defendant is ordered to produce the names, last known addresses, and email addresses
(“Worker Information”) of current and former Workers. Defendant shall provide the Worker
Information in an electronic format within ten (10) days of the entry of this Order. Plaintiff’s
Counsel shall send the Notice and Consent Form to the Workers within seven (7) days after
Defendant provides the Worker Information to Plaintiff’s counsel. The Court authorizes Plaintiff
to immediately issue the Notice and Consent Form to those individuals whose names are being
provided as required by this Order. Plaintiff shall issue the Notice and Consent forms by U.S. mail
and email. Plaintiff may provide a self-addressed, postage paid return envelope. Plaintiff shall
bear the cost of issuing the Notice and Consent forms and any reminder notice.
The Workers shall be provided ninety (90) days after the date the Notice and Consent forms
are mailed (the “Opt-In Period”) to file a Consent to Join form opting-in to this litigation, unless
the Parties agree to permit late filings. Any re-mailing of the original notice and any reminder
notices shall not extend this deadline. Plaintiff shall inform opposing counsel as to the date on
which the Notice forms were sent to the Workers. Plaintiff’s counsel may send a reminder notice
thirty (30) days before the expiration of the Opt-In Period, provided the parties agree upon the text
of the reminder.
Plaintiff’s counsel shall file the signed consent forms with the Court within ten (10) days
of the close of the Opt-In Period. All consent forms postmarked or fax-stamped on or before the
end of the Opt-In Period will be considered timely.
Within thirty (30) days after the close of the Opt-In period, the Parties are directed to confer
9
pursuant to Rule 16(b) to present the Court with a proposed Joint Scheduling Order setting forth
proposed dates and covering the items set forth in the Court’s previous Order Governing
Proceedings. The proposed Joint Scheduling Order should set forth the Parties’ agreements
.
concerning how discovery will proceed and how the case will proceed at trial. If the Parties cannot
agree on elements of the Proposed Scheduling Order, they may present their views in the
submission for Court determination. The Parties must file the Joint Scheduling Report and Case
Management Plan within fourteen (14) days of the deadline for the Parties to confer.
SIGNED this 25th day of June, 2018.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
10
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?