Stacy et al v. Jennmar Corporation of Virginia, Inc. et al

Filing 52

OPINION and ORDER Re: State Law Class Certification granting 35 Motion to Certify Class Signed by Senior Judge James P. Jones on 5/6/22. (ejs)

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 1 of 22 Pageid#: 1547

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
CHARLIE STACY and CLIFFORD
ALLEN, individually and on behalf of
all others similarly situated,
Plaintiffs,
v.

JENNMAR CORPORATION OF
VIRGINIA, INC., ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:21CV00015
OPINION AND ORDER
RE STATE LAW CLASS
CERTIFICATION
JUDGE JAMES P. JONES

Gregg C. Greenberg, ZIPIN, AMSTER & GREENBERG, LLC, Silver Spring,
Maryland, and Francisco Mundaca and Robert W.T. Tucci, THE SPIGGLE LAW FIRM,
PLLC, Alexandria, Virginia, for Plaintiffs; K. Maxwell Bernas, FORDHARRISON LLP,
Washington, D.C., and Benjamin P. Fryer, FORDHARRISON LLP, Charlotte, North
Carolina, for Defendants.
Plaintiffs Charlie Stacy and Clifford Allen filed this class action on behalf of
themselves and all individuals similarly situated, alleging that defendants violated
Virginia law by not paying overtime or minimum wage to its workers and failing to
provide accurate itemized wage statements.1 The plaintiffs have moved for class

1

Citing the Virginia Minimum Wage Act (VMWA), Va. Code Ann. §§ 40.1-28.8–
12 (2021), the Virginia Wage Payment Act (VWPA), Va. Code Ann. § 40.1-29 (2021),
breach of contract, and quantum meruit. The plaintiffs also allege violations of the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. The present motion concerns
only the state law claims. Neither party has contested this court’s subject-matter
jurisdiction; however, I may address subject-matter jurisdiction sua sponte. Suarez Corp.

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 2 of 22 Pageid#: 1548

certification of their state law claims pursuant to Rule 23 of the Federal Rule of Civil
Procedure. The defendants oppose certification. For the reasons that follow, I will
grant the Motion for Class Certification and instruct that notice be sent to putative
opt-out plaintiffs.
I.
I previously recounted the facts of this case in a decision granting plaintiffs’
motion for conditional certification of a collective action pursuant to § 216(b) of the
FLSA. Stacy v. Jennmar Corp. of Va., Inc., No. 1-21CV00015, 2021 WL 4787278
(W.D. Va. Oct. 14, 2021). I will briefly recount those facts relevant to the present
motion.
The defendants, Jennmar Construction of Virginia, Inc., Jennmar Corporation
of East Virginia, Inc., Jennmar Construction Tools, LLC, and Does 1 through 20,
manufacture and assemble products for use in agricultural, construction, energy, and

Indus. v. McGraw, 125 F.3d 222, 227 (4th Cir. 1997). This court has original jurisdiction
over the plaintiffs’ FLSA claims under 28 U.S.C. § 1331. The court may exercise
supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a) if the state
law claims form part of the same case or controversy — that is, they derive from the same
nucleus of operative facts. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725
(1966). Here, plaintiffs’ state law claims share a common nucleus of operative facts with
the claims raised under the FLSA. The alleged violations of Virginia law and FLSA are
all based on the same conduct with regard to the same employees over the same period of
time. While supplemental jurisdiction is discretionary, 28 U.S.C. § 1367(c), I find that it
would be appropriate in this case because the state law claims do not “raise[] a novel or
complex issue of State law” or “substantially predominate[]” over the other claims. 28
U.S.C. § 1367(c)(1), (2); Calderon v. GEICO Gen. Ins. Co., 279 F.R.D. 337, 344–45 (D.
Md. 2012).
-2-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 3 of 22 Pageid#: 1549

mining industries, specifically roof and structural support components, throughout
western Virginia and the United States. Plaintiffs Charlie Stacy and Clifford Allen
are former production and crane workers for the defendants at the Cedar Bluff,
Virginia, facility. In general, they were responsible for monitoring and operating
workstations along the production lines. On April 12, 2021, the plaintiffs filed their
Complaint on behalf of themselves and those similarly situated, alleging that hourly,
non-exempt workers at the defendants’ facilities located at Cedar Bluff, Bristol, and
Rich Creek, Virginia, routinely worked more than 40 hours per week and that
defendants failed to pay them all wages and overtime wages in violation of Virginia
law.
Specifically, the plaintiffs allege that they were uncompensated for pre-shift
activities. The plaintiffs contend that in order to meet defendants’ expectations, they
were required to start performing essential job duties before their scheduled shift
start time, including “completing paperwork, including ‘safety sheets’ and
checklists; putting on personal protective equipment ‘PPE’, including safety glasses,
gloves, and cut-resistant Kevlar sleeves; checking the machines, preparing tools,
setting up the machines, and ensuring my work area was clean.” Pls.’ Mem. Supp.
Mot. Conditionally Certify Class Ex. A, Stacy Decl. ¶ 6–7, ECF No. 28-1; Id. at Ex.
B, Allen Decl. ¶ 5–6, ECF No. 28-2. However, hourly employees were instructed
by defendants “to clock in within 7 minutes of the start time of their shift.” Pls.’
-3-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 4 of 22 Pageid#: 1550

Mem. Supp. Mot. Certify Class Ex. A, O’Leath Dep. 179, ECF No. 36-1; Allen Decl.
¶ 7, ECF No. 28-2. At the Cedar Bluff and Bristol facilities, defendants also posted
signs near the time clock that instructed employees “not [to] clock in earlier than 7
minutes before the scheduled shift or clock out [] later than 7 minutes past the shift
end. UNLESS APPROVED BY MANAGEMENT FOR OVERTIME.” Pls.’ Mem.
Supp. Mot. Certify Class Ex. F, Facility Time Clock Signs 2, 3–4, ECF No. 36-6.
The plaintiffs contend that employees were subject to the same working hours
and compensation policies, and the same written employment policies, created by
defendants’ parent company, Frank Calandra, Inc. Specifically, as a condition of
employment, each employee must comply with the Employee Handbook, which
outlines the defendants’ job performance expectations, timekeeping procedures, and
compensation practices. The purpose of the Handbook is “to make sure that all
workers understood and followed the same guidelines, policies and practices related
to their jobs.” O’Leath Dep. 234–35, ECF No. 36-1. Individual supervisors do not
have any discretion in how the policies are developed and enforced. Id. at 115–16.
At each facility, hourly employees were typically scheduled for one of two
shifts. The schedule follows five eight-hour workdays for no more than 40 hours
per week, with any overtime or weekend shifts scheduled based on production needs.
All hourly employees are required to clock-in and clock-out using a biometric time
clock system. The time clock is located at the point of entry for the plant floor at
-4-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 5 of 22 Pageid#: 1551

each facility. Any overtime must be approved by a supervisor, or the employee will
be subject to discipline.
Additionally, all hourly employees “are required to maintain their work areas
before, during, and at the end of each work shift.” Id. at Ex. C, Hourly Employee
Safety Orientation Slides 4, 6, ECF No. 36-3. They are required to “wear Company
approved and provided personal protective equipment” (PPE) before entering the
plant floor and must complete “Safety Check Lists” before they may operate their
assigned machinery. Id. at 8, 9. All employees are provided a locker where they
may store their PPE and other personal items. Employees “regularly store[] their
PPE in their locker, and that’s where they obtain it when they come into the building,
put it on, punch in, [and] go to work.” O’Leath Dep. 241, ECF No. 36-1. In other
words, “[t]pically, an hourly employee would be equipped with PPE when they are
punching in.” Id. at 290. Employees are instructed that they must report to their
assigned workstation and be “ready to work” at the start of their scheduled shift time.
Id. at Ex. B, Employee Handbook 11, ECF No. 36-2. Failure to do so results in
disciplinary action.
Defendants use a common practice of rounding time to the nearest 15-minute
increment to calculate wages, with employees’ time rounded up to 15 minutes when
clocking-in eight minutes or more before a shift but rounded down to zero minutes
if clocking-in seven minutes or less before a shift. When workers clocked in seven
-5-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 6 of 22 Pageid#: 1552

minutes or less before their scheduled start time, they were not compensated for preshift work.
On December 3, 2021, the plaintiffs filed this motion to certify a class action
of all individuals similarly situated pursuant to Rule 23(b)(3) of the Federal Rules of
Civil Procedure and requested court-authorized notice be issued to all putative optout plaintiffs. They claim that defendants’ rounding policy, in combination with its
mandatory safety and housekeeping pre-shift work, results in employees performing
approximately 20 minutes of unpaid compensable work per shift, in violation of
Virginia law. The defendants argue that the plaintiffs’ motion should be denied in
its entirety, contending that plaintiffs failed to satisfy Rule 23(a)’s commonality
requirement and Rule 23(b)’s predominance requirement. Alternatively, if the court
grants certification, the defendants maintain that the class should be limited to nonexempt second shift employees at Jennmar Virginia’s Cedar Bluff facility. The
parties have fully briefed the motion, and it is ripe for a decision.
II.
The Federal Rules of Civil Procedure require that a party seeking class
certification satisfy four prerequisites: numerosity, commonality, typicality, and
adequacy of representation. Fed. R. Civ. P. 23(a); EQT Prod. Co. v. Adair, 764 F.3d
347, 357 (4th Cir. 2014). In addition, “the class action must fall within one of the
three categories enumerated in Rule 23(b).” EQT Prod. Co., 764 F.3d at 357
-6-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 7 of 22 Pageid#: 1553

(citation omitted). Here, the plaintiffs seek certification under Rule 23(b)(3), which
requires that common issues predominate over individual ones and that proceeding
as a class is superior to other available methods of litigation. Fed. R. Civ. P.
23(b)(3).

Lastly, Rule 23 contains an implicit threshold requirement that the

members of a proposed class be readily identifiable by reference to objective
criteria. EQT Prod. Co., 764 F.3d at 358.
The plaintiffs seek to certify the following class:
All current and former non-exempt employees employed by
defendants, in the Commonwealth of Virginia, within three (3) years prior to
the filing of this action to the present.
Pls.’ Mem. Supp. Mot. Certify Class 1, ECF No. 36. Additionally, the
plaintiffs have proposed three subclasses.
Subclass One, the “VMWA/VWPA Subclass,” would consist of:
All individuals who work or have worked for Defendants’ [sic]
as non-exempt hourly employees performing compensable duties for
Defendants’ benefit, in Virginia, at anytime within the three (3) year
period prior to filing this lawsuit who were: (i) paid on an hourly basis
and; (ii) were not paid all wages due and owing for work duties
performed in the Commonwealth of Virginia as a result of Defendants’
class-wide payroll practice of shaving shift minutes and/or hours
worked; (iii) who were subject to Defendants’ payroll policies and
practices denying payment of wages for all hours worked and/or
payment of overtime wages at the time-and-one-half rate for overtime
worked over forty (40) hours per week; and/or (vi) who were not paid
all wages due and owing upon separation of employment.
Id. at 1–2,
Subclass Two, the “Breach of Contract Subclass,” would consist of:
-7-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 8 of 22 Pageid#: 1554

All individuals who work or have worked for Defendants as nonexempt hourly employees performing compensable work duties for
Defendants’ benefit, in Virginia, at any time within the five (5) year
period prior to the filing of this lawsuit who were: (i) paid on an hourly
basis and; (ii) were not paid all wages contractually due and owing for
work duties performed as a result of Defendants’ class-wide payroll
practice of shaving shift minutes and/or hours worked; (iii) were subject
to Defendants’ payroll policies and practices denying payment of
wages for all hours worked each week; and/or (vi) who were not paid
all wages due and owing upon separation of employment.
Id. at 2.
Subclass Three, the “Quantum Meruit Subclass,” would consist of:
All individuals who work or have worked for Defendants as nonexempt hourly employees performing compensable work duties for
Defendants’ benefit, in Virginia, at any time within the five (5) year
period prior to the filing of this lawsuit who were: (i) paid on an hourly
basis and; (ii) were not paid all wages reasonably due and owing for
compensable work duties performed for the benefit of Defendants as a
result of Defendants’ class-wide payroll practice of shaving shift
minutes and/or hours worked; (iii) who were subject to Defendants’
payroll policies and practices denying payment of wages for all hours
worked for Defendants’ benefit each week; and/or (vi) who were not
paid all wages due and owing upon separation of employment.
Id.
“Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350 (2011). “A party seeking class certification must
affirmatively demonstrate his compliance with the Rule — that is, he must be
prepared to prove that there are in fact sufficiently numerous parties, common
questions of law or fact, etc.” Id. At the certification stage, the court may be required
to “probe behind the pleadings” and “take a close look at the facts relevant to the
-8-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 9 of 22 Pageid#: 1555

certification question.” Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 319
(4th Cir. 2006) (internal quotation marks and citation omitted). The “likelihood of
the plaintiffs’ success on the merits, however, is not relevant to the issue of whether
certification is proper.” Id.
A. Rule 23(a) Requirements.
With respect to the class, the defendants object only as to whether the
plaintiffs have satisfied the commonality and predominance requirements. In ruling
on the motion, I find it appropriate to consider all of Rule 23’s requirements.
1. Numerosity.
To satisfy numerosity, the plaintiff must show that the class is so numerous
that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). There is “[n]o
specified number [that] is needed to maintain a class action. Rather, an application
of the rule is to be considered in light of the particular circumstances of the case.”
Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984) (internal quotation
marks and citation omitted). A class of 74 members has been upheld as sufficiently
numerous. Indeed, a class of only 18 members has been approved. Id. Here, the
putative class would likely include at least 300 persons. O’Leath Dep. 79–81, ECF
No. 36-1; Pls.’ Mem. Supp. Mot. Class Certification Ex. L, Redacted FLSA
Collective Class List, ECF No. 36-12. I therefore find that numerosity is satisfied.

-9-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 10 of 22 Pageid#: 1556

Furthermore, I find that class members are easily identifiable from the defendants’
employment records.
2. Commonality and Typicality.
The “threshold requirements of commonality and typicality are not high.”
Brown v. Nucor Corp., 576 F.3d 149, 153 (4th Cir. 2009). Commonality requires
that there are questions of law or fact common to the class. Fed. R. Civ. P. 23(a)(2).
Although “even a single common question” suffices, not just any common question
will do. Wal-Mart Stores Inc., 564 U.S. at 359 (internal quotation marks, citation,
and alterations omitted). The common question must be of such a nature that its
determination “will resolve an issue that is central to the validity of each one of the
claims in one stroke.” Id. at 350. Put differently, although the rule speaks in terms
of common questions, “[w]hat matters to class certification . . . is . . . the capacity of
a classwide proceeding to generate common answers apt to drive the resolution of
the litigation.” Id. (internal quotation marks and citation omitted). The existence of
a uniform corporate policy is often sufficient. EQT Prod. Co., 764 F.3d at 366.
Typicality concerns whether the class representatives are members of the class
and “possess the same interest and suffer the same injury as the class members.”
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982) (internal quotation marks
and citations omitted). The analysis is grounded in principles of due process and
serves a guidepost for whether “the named plaintiff’s claim and the class claims are
-10-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 11 of 22 Pageid#: 1557

so interrelated that the interests of the class members will be fairly and adequately
protected in their absence.” Id. at 157 n. 13.
First, as to typicality, the defendants do not dispute that the named plaintiffs
satisfy this requirement. I agree. The named plaintiffs are members of the class and
of each of the subclasses. They worked the same or similar hours, performed the
same or similar duties, and operated the same or similar equipment as all putative
subclass members. They allege that while employed by the defendants, they were
subject to the same allegedly unlawful rounding practice and as a result, were not
compensated for all hours worked in violation of Virginia law. They therefore have
suffered the same injury as all putative class members. Accordingly, I find that they
will fairly and adequately protect the interests of all putative class members.
Second, as to commonality, the plaintiffs contend that there are multiple issues
common to the class. These include whether the defendants’ system of time rounding
violates state law, whether defendants failed to pay all hourly workers for all hours
worked, whether defendants required employees to work more than 8 hours-a-day
or 40 hours-per-week without paying minimum, regular, and overtime rates, whether
defendants failed to pay all wages to hourly employees upon separation of
employment, and whether defendants conduct was willful or reckless.
In response, the defendants argue that the plaintiffs fail to satisfy commonality
because they have not identified a uniform and unlawful policy employed against all
-11-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 12 of 22 Pageid#: 1558

putative class members, who work or worked for three separate companies at five
different facilities with different supervisors. Rather, the defendants claim that the
plaintiffs have identified only a neutral timekeeping practice, which is lawful under
Virginia law, and that their evidence is limited to the conduct of a second-shift
supervisor at the Cedar Bluff, Virginia, facility, who may have required employees
to review paperwork prior to clocking-in for their shifts. Their arguments are similar
to those made with respect to the conditional certification of the collective FLSA
action, namely there are too many factual differences between class members, and
that at best, plaintiffs’ allegations are limited to one shift at one facility.
I disagree. I find that the plaintiffs have put forth sufficient evidence that there
is a common uniform policy applicable to all putative class members that may be
unlawful: the defendants’ time rounding practice. More specifically, the common
contention alleged by the plaintiffs is that even though defendants maintain records
of actual hours worked, the rounding policy systemically decreased the timing
recognized as accrued, resulting in a company-wide practice of underpaying hourly
employees. While the court does not reach the merits of the claim in a motion for
class certification, a neutral time rounding practice is not per se lawful. Rather, it is
lawful only if ‘“it will not result, over a period of time, in failure to compensate the
employees properly for all the time they have actually worked.’” Hardy v. Lewis
Gale Med. Ctr., LLC, 377 F. Supp. 3d 596, 614 (W.D. Va. 2019) (quoting 29 C.F.R.
-12-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 13 of 22 Pageid#: 1559

§ 785.48(b)). In other words, a rounding practice would be unlawful if employees
were required to clock-in or clock-out within a certain time period that consistently
results in rounding down of actual hours worked.
This is precisely what the plaintiffs allege in this case. It is undisputed that
defendants applied the rounding practice to all of their hourly employees. However,
it is an open question — one that is apt to generate a common answer — whether
defendants’ rounding practice violates Virginia law because over time, hourly
employees are not being compensated for all hours actually worked. The answer to
this question would resolve the claims “in one stroke.” Wal-Mart Stores, Inc., 564
U.S. at 350. Critically, the defendants’ evidence is that individual managers did not
have discretion to implement timekeeping in a different way. The cases cited by
defendants in support of their opposition to commonality are also distinguishable, as
they do not involve a corporate rounding practice.
Furthermore, while there may be factual differences between class members
regarding how much time was spent completing pre-shift activities, such as donning
PPE, reviewing paperwork, or complying with safety requirements, that alone does
not defeat commonality.2 All putative class members’ claims arise from the same

2

While not thoroughly discussed by the parties, the alleged differences in the time
worked ultimately pertain to individual damages, which “‘may be characterized as virtually
a mechanical task, capable of mathematical or formula calculation.’” Messer v. Bristol
Compressors Int’l, LLC, No. 1-18CV00040, 2019 WL 2550328, at *4 (W.D. Va. June 20,
2019) (citation omitted).
-13-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 14 of 22 Pageid#: 1560

conduct (defendants’ rounding practice) and are based on the same legal theory
(violation of Virginia’s wage and hour statutes and common law). This is sufficient
to satisfy commonality.
In addition, the plaintiffs rely on defendants’ Employee Handbook as further
evidence of a common policy or scheme. The Employee Handbook’s policies apply
to all employees, and they were developed and enforced by the defendants’ parent
company, Frank Calandra, Inc. The defendants testified that individual managers or
shift supervisors lacked the discretion to amend or alter the policies, including safety
requirements. The Handbook also makes clear that employees must perform certain
duties as a condition of their employment, and that they must report to their duty
station “ready to work” at the start of their shift. Employee Handbook at 11, ECF
No. 36-2. Plaintiffs allege that “ready to work” impliedly required hourly employees
to complete certain pre-shift activities that resulted in approximately 20 minutes of
unpaid work per shift. The defendants, however, directed employees not to clockin earlier than seven minutes before their shifts, ensuring that such time would not
be compensated. Thus, the defendants’ uniform policy is the “glue” holding all class
members’ claims together. Wal-Mart Stores Inc., 564 U.S. at 352.
3. Adequacy of Representation.
The final Rule 23(a) requirement is that “the representative parties will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The
-14-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 15 of 22 Pageid#: 1561

inquiry is two-fold. First, proposed class representatives must be members of the
class they purport to represent and their interests must not be in conflict with those
of the other class members. Broussard v. Meineke Disc. Muffler Shops, Inc., 155
F.3d 331, 338–39 (4th Cir. 1998). Second, class counsel must be “qualified,
experienced and generally able to conduct the proposed litigation.” Messer, 2019
WL 2550328, at *4 (citation omitted). Here, the named plaintiffs do not appear to
have any interest antagonistic to the rest of the putative class. Moreover, plaintiffs’
counsel has extensive experience litigating complex wage and hour class and
collections actions, and there are no apparent conflicts of interest for counsel.
B. Rule 23(b) Requirements.
Having concluded that Rule 23(a) prerequisites are met, I now turn to whether
the plaintiffs have satisfied the predominance and superiority requirements of Rule
23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997).
1. Predominance.
A plaintiff must show that common questions of law or fact predominate over
individual questions.

“The predominance requirement is similar to but more

stringent than the commonality requirement of Rule 23(a).” Thorn, 445 F.3d at 319.
It “tests whether proposed classes are sufficiently cohesive to warrant adjudication
by representation.” Amchem, 521 U.S. at 623.

-15-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 16 of 22 Pageid#: 1562

Here, the most prevalent issue for each subclass is whether defendants’ time
rounding practice, in connection with its directives regarding pre-shift activities,
violates Virginia law. The defendants’ time rounding practice affected all putative
class members. While some factual differences may exist, for example, not all
employees operate the same equipment, or some employees may have donned some
of their PPE prior to arriving onsite, I nevertheless find that class issues will
predominate over individual issues — that is, whether the defendants’ compensation
system cannot account for the time required to perform mandatory pre-shift work.
McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465, 478 (E.D.N.C. 2010).
Moreover, I do not find the defendants’ argument persuasive that there are
critical differences between the three companies. The defendants assert that the
companies manufacture different products at separate facilities with separate
management. Even accepting this as true, the evidence shows that the same policies
and procedures regarding timekeeping and safety requirements apply to every
facility, without room for discretion at the local facility level. While one facility
specializes in manufacturing bolts and another in drill bits, these slight differences
do not predominate, and they certainly do not impact or change defendants’
compensation policies.
The defendants argue that instructions about complying with defendants’
rounding practice are provided by human resources (HR) personnel at each facility,
-16-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 17 of 22 Pageid#: 1563

and that no one is instructed to complete work without clocking-in. The fact that
different personnel onboard new employees regarding defendants’ timekeeping
systems, however, does not bear on whether the same rounding practice applies. In
fact, the defendants testified that HR personnel have no discretion to amend the
defendants’ timekeeping and compensation policies.

The defendants further

testified that all employees were directed to clock-in within seven minutes of their
shift start-time. The mere fact that only some facilities had signs posted to that effect
does not mean that the rounding policy was not company-wide or that it was not
uniformly enforced.
Finally, that plaintiffs have not identified some explicit written or verbal
directive implicating defendants in an unlawful compensation scheme does not
absolve them of liability, nor is it appropriate to resolve in a motion for class
certification. Stacy testified that “[n]o body specifically required [him] to be” at the
worksite before this shift, but “it was just the understanding of being there so we
could prepare for our shifts,” including to get “our paperwork, know what we’re
doing, got our lockers, get our hard hats, glasses.” Defs.’ Mem. Opp’n Ex. 2, Stacy
Dep. 79, ECF No. 39-2. Allen similarly testified that no one told him he needed to
arrive early for his shift, but that he “needed that time, because it was a hard job.”
Pls’ Rep. Ex. 2, Allen Dep. 24, ECF No. 43-2. But these are not the damning
confessions hinted at by defendants. The plaintiffs’ theory is that defendants’
-17-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 18 of 22 Pageid#: 1564

expectations made it impossible for hourly employees to perform their job duties
without pre-shift work, and that due to the rounding practice, they were not
compensated for that work. That some of the work was completed during the seven
minutes of pre-shift on-the-clock work does not change the analysis, as that time was
still not paid under the rounding policy.3 Of course, whether defendants’ policy is
unlawful is a merits question that is not the issue to decide in a certification motion.
The court may probe behind the pleadings only to ensure that there are sufficient
facts to support the claims. Thorn, 445 F.3d at 319. Plaintiffs have met that burden.
2. Superiority.
The superiority requirement ensures that “a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” Fed. R.
Civ. P. 23(b)(3). The court should consider:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;

Defendants argue that “all such time was paid.” Defs.’ Mem. Opp’n 14, ECF 39.
They therefore argue that the plaintiffs’ deposition testimony contradicts their sworn
affidavits. Id. The court does not resolve factual disputes or weigh the credibility of
witnesses and evidence in a motion for certification, including whether the “sham affidavit”
rule applies. Victorino v. FCA US LLC, No. 16cv1617-GPC(JLB), 2018 WL 2455432, at
*21 (S.D. Cal. June 1, 2018). Nevertheless, the plaintiffs’ statements do not appear to be
in conflict. They claim in their testimony and affidavits that they were not compensated
for pre-shift activities, which would include the seven minutes of pre-shift on-the-clock
work.
3

-18-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 19 of 22 Pageid#: 1565

(C) the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Id.
I find that a class action is superior to other methods of adjudicating this
controversy. As to the first factor, the potential small amount of individual damages
compared to the financial burden for individual plaintiffs to litigate their claim
demonstrate the efficiencies and benefits of class wide resolution. With respect to
the second factor, none of the parties have identified separate ongoing litigation
concerning the issues raised in this case. As to the third factor, the defendants’
facilities are located in this judicial district, and there is no reason that this court
would not be the best forum to resolve the dispute. Finally, I do not find that the
number of putative class members poses significant manageability concerns.
The court will grant the plaintiffs’ Motion to Certify Class and appoint the
named plaintiffs as class representatives. The court will also grant the plaintiffs’
motion to appoint Zipin, Amster & Greenberg, LLC, and The Spiggle Law Firm,
PLLC, as class counsel. Under Rule 23(g), the court must consider
(i) the work counsel has done in identifying and investigating potential
claims in the action; (ii) counsel’s experience in handling class actions,
other complex litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and (iv) the resources
counsel will commit to representing the class.

-19-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 20 of 22 Pageid#: 1566

Fed. R. Civ. P. 23(g)(1)(A). Given counsel’s extensive experience and expertise
litigating complex wage-and-hour class actions, I find they are more than capable of
representing this class. Plaintiffs’ counsel has also handled this case from the outset
and will undoubtedly commit sufficient resources to fully litigate the claims.
Finally, plaintiffs’ proposed notice is sufficient. As I previously held in
granting plaintiffs’ motion for conditional certification of related FLSA claims,
mailing of notices through the U.S. Postal Service is the best and most appropriate
form of notice. Stacy, 2021 WL 4787278, at *11. The defendants must therefore
produce a list with the name, job title, last known mailing address, dates of
employment, shift assignment, and location of employment for putative plaintiffs
within 15 days of this Opinion and Order.
III.
For the reasons stated, it is hereby ORDERED as follows:
1. The Motion for Class Certification and Court-Authorized Notice, ECF No.
35, is GRANTED, pursuant to Federal Rule 23(a) and 23(b)(3);
2. The certified class is defined as follows:
All current and former non-exempt employees employed by defendants, in
the Commonwealth of Virginia, within three (3) years prior to the filing of
this action to the present.
3. The certified subclasses are defined as follows:
VMWA/VWPA Subclass One: All individuals who work or have worked
for Defendants as non-exempt hourly employees performing compensable
-20-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 21 of 22 Pageid#: 1567

duties for Defendants’ benefit, in Virginia, at anytime within the three (3)
year period prior to filing this lawsuit who were: (i) paid on an hourly basis
and; (ii) were not paid all wages due and owing for work duties performed
in the Commonwealth of Virginia as a result of Defendants’ class-wide
payroll practice of shaving shift minutes and/or hours worked; (iii) who
were subject to Defendants’ payroll policies and practices denying
payment of wages for all hours worked and/or payment of overtime wages
at the time-and-one-half rate for overtime worked over forty (40) hours per
week; and/or (vi) who were not paid all wages due and owing upon
separation of employment.
Breach of Contract Subclass Two: All individuals who work or have
worked for Defendants as non-exempt hourly employees performing
compensable work duties for Defendants’ benefit, in Virginia, at any time
within the five (5) year period prior to the filing of this lawsuit who were:
(i) paid on an hourly basis and; (ii) were not paid all wages contractually
due and owing for work duties performed as a result of Defendants’ classwide payroll practice of shaving shift minutes and/or hours worked; (iii)
were subject to Defendants’ payroll policies and practices denying
payment of wages for all hours worked each week; and/or (vi) who were
not paid all wages due and owing upon separation of employment.
Quantum Meruit Subclass Three: All individuals who work or have
worked for Defendants as non-exempt hourly employees performing
compensable work duties for Defendants’ benefit, in Virginia, at any time
within the five (5) year period prior to the filing of this lawsuit who were:
(i) paid on an hourly basis and; (ii) were not paid all wages reasonably due
and owing for compensable work duties performed for the benefit of
Defendants as a result of Defendants’ class-wide payroll practice of
shaving shift minutes and/or hours worked; (iii) who were subject to
Defendants’ payroll policies and practices denying payment of wages for
all hours worked for Defendants’ benefit each week; and/or (vi) who were
not paid all wages due and owing upon separation of employment.
4. Zipin, Amster & Greenberg, LLC, and The Spiggle Law Firm, PLLC, are
appointed as class counsel;

-21-

Case 1:21-cv-00015-JPJ-PMS Document 52 Filed 05/06/22 Page 22 of 22 Pageid#: 1568

5. The defendants shall provide to class counsel an updated mailing list, in
alphabetical order by employee last name, with the job title, last known
mailing address, dates of employment, shift assignments, and location of
employment of all potential members of this class action;
6. The list shall be provided electronically in a manner requested by class
counsel within 15 days of the entry of this Opinion and Order in order to
facilitate mailing; and
7. A copy of the notice and the opt-in form, Pls.’ Mem. Supp. Mot. Certify
Class, Ex. J, ECF No. 36-10, shall be provided via U.S. Postal Service to
all members of the certified subclasses.

ENTER: May 6, 2022
/s/ JAMES P. JONES
Senior United States District Judge

-22-