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Olmstead v. RDJE, Inc.

United States District Court, N.D. Georgia, Newnan Division

August 30, 2017

KENNETH OLMSTEAD AND SIMILARLY SITUATED EMPLOYEES, Plaintiff,
v.
RDJE, INC., et al., Defendants.

          OPINION AND ORDER

          THOMAS W. THRASH, JR., UNITED STATES DISTRICT JUDGE.

         This is an action under the Fair Labor Standards Act for unpaid overtime wages. It is before the Court on the Plaintiff's Motion for Conditional Certification and Facilitation of Court-Authorized Notice [Doc. 30]. For the following reasons, the Plaintiff's Motion is GRANTED.

         I. Background

         The Defendant, Ronny D. Jones, owns and operates the Defendant RDJE, Inc., a construction firm headquartered in Newnan, Georgia. The named Plaintiff, Kenneth Olmstead, was employed at RDJE as a general laborer from March 11, 2012 to April 23, 2016. The four opt-in Plaintiffs were employed by RDJE at different times during 2013-2016 as general laborers for various construction projects. Though their compensation rates varied, it is undisputed that all of the laborers were paid at an hourly rate beginning when they arrived at the worksite. However, the Plaintiff alleges that before reporting to the worksite, the laborers were required to report each day to the RDJE “shop” first to receive instructions and tools for that day's job. While the Defendants dispute that the laborers were required to show up at the shop first, they agree that the laborers were not paid for any time spent prior to arriving at the worksite. The Plaintiff claims that he and the other laborers are owed unpaid overtime wages for this time, and now seeks to bring a collective action on behalf of himself and all other similarly situated laborers employed by the Defendants from 2013 to the present who worked more than forty hours per week, but were not paid proper overtime wages for their time prior to arriving at the worksite.

         II. Standard for Conditional Certification of FLSA Collectives

         A collective action under the Fair Labor Standards Act “may be maintained against any employer ... 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[.]”[1] This Court has discretion to authorize the sending of notice to potential class members in a collective action.[2] Unlike class actions under Rule 23, a collective action under the FLSA requires individuals to opt-in to the action instead of opting out.[3] Whether or not to certify a collective action is “soundly within the discretion of the district court.”[4]

         Courts typically employ a two-step process to determine whether employees are similarly situated so that a collective action is proper. The first step is the “notice” or “conditional certification” stage.[5] At this stage, the Court may grant conditional certification if a plaintiff demonstrates a reasonable basis to believe that: (1) there are other employees of the defendant who desire to opt-in; and (2) that these other employees are “‘similarly situated' with respect to their job requirements and with regard to their pay provisions.”[6]

         A class plaintiff's burden is “not particularly stringent, ” “fairly lenient, ” and “not heavy, ” and may be met with “detailed allegations supported by affidavits which successfully engage defendants' affidavits to the contrary.”[7] While courts have not defined “similarly situated, ” it is clear that a plaintiff does not need to show that his position is “identical” to the position held by any other putative class member.[8] The Court has “broad discretion at the notice stage, ” but is “constrained, to some extent, by the leniency of the standard for the exercise of that discretion.”[9]

         III. Discussion

         A. The Putative Class Members are Similarly Situated

         The first question the Court addresses is whether the named Plaintiff and the putative members of the proposed class are similarly situated. The Eleventh Circuit has said that “opt-in plaintiffs ‘need show only that their positions are similar, not identical, to the positions held by the putative class members.'”[10] In other words, as long as the Plaintiff can show that the members of the proposed class all shared the same position or were subject to the same policy, they are similarly situated.[11]

         In this case, the Plaintiff has made this showing sufficiently. He proposes a relatively narrow class, consisting of only one type of employee (“laborers”), who are all paid an hourly wage, and who worked for RDJE within a certain window of time. He has supported the existence of the class with the declarations of both the named Plaintiff and an opt-in Plaintiff.[12] And the Defendants have admitted that RDJE did not pay laborers for time spent at the shop and traveling to the worksite.[13] Putting it differently, the putative class in this case consists of employees who all held the same position, who were all paid the same way, and who were all subject to RDJE's practice of not paying for shop and travel time. This is enough to satisfy this prong of the conditional certification analysis.

         The main thrust of the Defendants' argument opposing conditional certification focuses on the sufficiency of the Plaintiff's submissions-two nearly identical declarations based on the declarants' personal knowledge and observations-to support a showing of similarity. The Defendants first cite a number of federal cases from Florida for the proposition that affidavits containing conclusory allegations, or that seem to be copies of each other notwithstanding minor changes, are not enough to carry the Plaintiff's burden.[14] The Defendants' citations are inapposite here, however, because not only are the Plaintiff's declarations not conclusory-especially considering the Defendants have admitted RDJE did not pay laborers for shop and travel time-but this Court has specifically taken the opposite approach to that of its sister courts in Florida. As this Court stated in Bradford v. CVS Pharmacy, Inc., “[w]hile some courts have given duplicative affidavits less weight, this Court does not think that it is appropriate to deny to conditionally certify a collective action on this basis alone.”[15] To take the Defendants' suggested approach would be to make a determination of the declarants' credibility, which is inappropriate at this stage.

         The Defendants next argue that personal knowledge and observations are not an acceptable basis of support for claiming that employees are similarly situated. In support, the Defendants cite Mata v. Foodbridge LLC, [16] a case from the Southern District of New York. The plaintiff in that case was an employee at the defendants' restaurants who claimed that he had not been paid proper overtime wages.[17] Based on his “observations and conversations with other employees, ” the plaintiff asserted that many other employees had also failed to receive their proper wages, and cited the names of seventeen coworkers whom he said hoped to join the suit.[18] The plaintiff filed suit on behalf of himself and these other employees, including “cooks, line-cooks, dishwashers, food preparers, cashiers, delivery persons, and counter persons employed by [d]efendants.”[19]

         The court eventually denied conditional certification, and the Defendants claim that this was because the only evidence for the plaintiff's claims was his own “observations and conversations.”[20] But a plain reading of that case makes clear that this was not in any way the reason for the court's decision to deny conditional certification-in fact, the Mata court said the exact opposite. There, as here, the “[d]efendants are wrong to suggest that [p]laintiff was required to buttress his motion with affidavits besides his own or with other documentary evidence. Rather, courts in [the Second Circuit] have routinely granted conditional collective certification based solely on the personal observations of one plaintiff's affidavit.”[21] And as the Mata court stated, the plaintiff could have made the “modest factual showing required at this stage of the proceeding with only the allegations contained in his Complaint and personal affidavit.”[22]

         The real problem for the Mata court, and the reason why that court did not certify the class, was that the plaintiff's pleadings were overly-broad and under-detailed. The Mata plaintiff tried to certify a class that included numerous different types of jobs, but provided “no concrete facts evidencing a common scheme or plan of wage and hour violations for employees engaged in different job functions.”[23] In that context, the plaintiff needed more concrete allegations regarding the defendants' policies because he himself had not held the other jobs he was trying to include in the class. Thus, while he could speak to the fact that the defendants might have a policy which affected him, his allegations carried less weight when suggesting that those policies applied to others outside of his particular job function.

         As the Mata court said, his observations and conversations with other employees could have potentially overcome this shortfall. The plaintiff, however, failed to “provide any detail” as to “where or when these observations and conversations occurred.”[24] The court said that these details were “critical, ” especially “where a conditional certification motion is based on the lone affidavit of a single employee, who performed a single job function.”[25] By contrast, the Mata court cited another case out of the Southern District of New York in which that court agreed to conditionally certify a class where there were “two employees who corroborate[d] each others' personal treatment and observations of the treatment of other employees.”[26]

         In this case, the Plaintiff has limited the proposed class to one particular job. He and the other declarant have stated that, in their experience, the Defendants had a policy which did not pay them for time spent at the shop and on the road. They have alleged, based on their own observations and conversations with other employees, that this policy was not limited to them, but applied to all laborers. They have provided at least some details of these conversations.[27] And the Defendants have admitted that this was their policy.[28] Taken together, these allegations provide enough support to show that the putative class members are similarly situated.

         B. The Plaintiff Has Shown Sufficient Interest

         Of course, it is not enough to be similarly situated; the Plaintiff must also show that others desire to join the suit. The Eleventh Circuit's standard for demonstrating interest at this stage is relatively vague. As a result, courts in this Circuit have varied widely in what they consider to be sufficient. For example, some courts require significant amounts of evidence indicating interest before they will conditionally certify a class.[29] Meanwhile, other courts have taken the requirement to mean that a plaintiff must merely show enough to raise class interest above “pure speculation.”[30]

         It is the Court's opinion that the latter, less stringent approach is the correct one, and that generally speaking, the more plaintiffs who have already opted in, the less additional evidence of interest needs to be shown. The Court acknowledges that the presence of numerous plaintiffs who have already opted-in could conceivably support two “opposing conclusions: [that] (1) there are likely to be others interested in the action; and (2) the action's existence is well-known and those employees who have an interest in the matter have [already] opted in.”[31] But the Court finds this acceptable in light of the relatively lenient nature of the conditional certification stage. To hold otherwise would punish plaintiffs who have done their homework and ...


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