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Stitt v. American Disposal Services of Georgia, Inc.

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

December 20, 2018

GABRIEL STITT, et al., Plaintiffs,



         This is an action under the Fair Labor Standards Act for unpaid overtime wages. It is before the Court on the Plaintiffs' Motion for Conditional Certification and Issuance of Notice [Doc. 43]. For the following reasons, the Plaintiffs' Motion is GRANTED.

         I. Background

         The named Plaintiffs are currently or were formerly employed as “drivers” or “laborers” by Defendant American Disposal Services of Georgia, Inc.[1] The Plaintiffs contend that the Defendant underpaid or failed to pay them and similarly situated employees for overtime hours in violation of the Fair Labor Standards Act.[2] Section 207 of the FLSA requires employers to pay non-exempt employees time and a half for all hours worked in excess of forty per week. According to the Plaintiffs, the Defendant pays its drivers and laborers a flat weekly salary regardless of the number of hours that they actually work.[3]Although the Plaintiffs' pay stubs reflect regular and overtime rates, the Plaintiffs allege that these rates were manipulated such that the Plaintiffs invariably received an amount close to the pre-determined flat weekly salary.[4] The Defendant denies the Plaintiffs' claims. The Plaintiffs now seek to bring a collective action on behalf of themselves and all other “[c]urrent and former employees of [the Defendant] who work or have worked as Drivers and Laborers for the three years preceding the filing of this lawsuit[.]”[5]

         II. Standard for Conditional Certification of FLSA Collective Actions

         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[.]”[6] This Court has discretion to authorize the sending of notice to potential class members in a collective action.[7] Unlike class actions under Rule 23, a collective action under the FLSA requires individuals to opt in to the action instead of opting out.[8] Whether or not to certify a collective action is “soundly within the discretion of the district court.”[9]

         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.[10] 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.”[11]

         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.”[12]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.[13] 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.”[14]

         III. Discussion

         A. Conditional Certification

         The Plaintiffs have made a sufficient showing to meet their burden at the conditional certification stage. Since filing this suit, the original Plaintiffs have been joined by fifteen opt-in Plaintiffs.[15] This fact alone is sufficient to demonstrate that other employees of the Defendant desire to opt in.[16] As for whether these employees are “similarly situated, ” the Plaintiffs have submitted declarations from a sampling of the original and opt-in Plaintiffs declaring that they work or worked in similar positions and that the Defendant used the same or similar methods to calculate their pay.[17] The Defendant does not contest that the putative class should be conditionally certified at this stage of the litigation.[18] Thus, the Plaintiffs have provided a reasonable basis for conditional certification under the lenient standard adopted by the Eleventh Circuit. This Court will conditionally certify a class of current or former employees of the Defendant who were employed as drivers or laborers in the three years prior to mailing of notice.[19]

         The class definition formulated by this Court differs from the class definition articulated by the Plaintiffs. The Plaintiffs use May 24, 2015 as the cut-off date for class membership, which is the date exactly three years prior to the filing the Complaint. FLSA actions are “forever barred” unless they are commenced within two years (or three, in the case of a willful violation) after the cause of action accrued.[20] While the statute of limitations is tolled for the original named Plaintiffs at the time that the Complaint is filed, the statute of limitations is tolled for opt-in plaintiffs only after a written consent form is filed with the court.[21] The class should not include former employees of the Defendant whose employment terminated at some point after May 24, 2015 but before the date three years prior to the issuance of notice. Thus, the class definition proposed by the Plaintiffs is overinclusive. The Plaintiffs do not make a case for equitable tolling of potential plaintiffs' claims in their briefing, and it does not appear to this Court that there are any “extraordinary circumstances” that would justify equitable tolling in this case.[22]

         B. Issuance of Notice

         Having determined that the class should be conditionally certified, this Court now turns to the Defendant's objections regarding the contents of the Plaintiffs' proposed notice and the manner in which it will be disseminated. The Defendant raises the following objections:

(1) the Defendant should not be required to post notice at its facility as requested by the Plaintiffs;
(2) the Plaintiffs' discovery requests for the personal information of the Defendant's employees are overbroad;
(3) the private information requested by the Plaintiffs should be provided to a third party administrator, not directly to the Plaintiffs' counsel;
(4) the Plaintiffs' proposed notice period of ninety days is too long;
(5) the Plaintiffs' request that the Defendant be barred from any contact with putative class members for reasons related to the litigation is unreasonable; and
(6) the Plaintiffs' proposed Notice and Consent to Join Form must be revised in various respects.

         This Court will take up each of these objections in turn.

         1. Posting at the ...

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