DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this Fair Labor Standards Act collective action case is a motion to decertify the conditionally certified collective action (ECF No. 202), filed by Defendants DirectSAT USA, LLC ("DirectSAT"), UniTek USA, LLC ("UniTek"), and UniTek Global Services, Inc ("UGS"). Also pending are motions to seal filed by Defendants and Plaintiffs.
Defendant DirectSAT, a subsidiary of UniTek and UGS, provides satellite installation services to DirecTV customers throughout the country. Plaintiff is a technician who previously installed, upgraded, and serviced DirecTV equipment at customer locations in Maryland, Virginia, and the District of Columbia.
Technicians were paid pursuant to a "job rate" or "piece rate" system. Technicians would be given assignments at the beginning of the day, go out into the field and complete those assignments, report back as to the work performed, and be paid based on credits that accounted for quantity and type of work, as opposed to an hourly wage.
On October 4, 2010, Plaintiff brought suit against Defendants alleging violations of the Fair Labor Standards Act ("FLSA") (Count I), the Maryland Wage and Hour Law ("MWHL") (Count II), the Maryland Wage Payment and Collection Law ("MWPCL") (Count III), and the District of Columbia Minimum Wage Law ("DCMWL") (Count IV). (ECF No. 1). As to the FLSA claim, Plaintiff sought to represent a collective of all technicians employed by Defendants in Virginia, Maryland, and the District of Columbia during the applicable statute of limitations period for unpaid overtime. Plaintiff alleges that the collective is similarly situated in that they all had similar duties, performed similar tasks, were subjected to the same requirements under the FLSA to be paid overtime wages unless specifically exempted thereunder, were subjected to similar pay plans, were required to work and did work more than forty hours per week, and were not paid one and one-half times their regular rate for overtime worked. As to the Maryland and D.C. law claims, Plaintiff sought to represent a class comprised of all technicians employed by Defendants during the applicable statute of limitations period in Maryland and D.C., respectively. Defendants filed a motion to dismiss and the court, through Memorandum Opinion, 800 F.Supp.2d 662, and Order dated July 6, 2011, granted in part Defendants' motion, dismissing Plaintiff's MWPCL claim (Count III). (ECF Nos. 28 and 29). Plaintiff has seemingly abandoned representing a class on his state law claims as he failed to move for conditional certification by the October 1, 2012 deadline. (ECF No. 79).
On February 3, 2014, Defendants filed a motion to decertify the conditionally certified collective action. (ECF No. 202). Defendants also filed an unopposed motion to seal certain exhibits attached to their decertification motion (ECF No. 247). Plaintiffs filed an opposition on March 28, 2014 (ECF No. 251), to which Defendants replied on April 11, 2014 (ECF No. 255). Similar to Defendants, Plaintiffs filed a motion to seal certain exhibits to his opposition (ECF No. 253), which sits unopposed.
Under the FLSA, a collective action for unpaid minimum or overtime wages may be maintained "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b) (emphasis added). "In deciding whether to certify a collective action under the FLSA, courts generally follow a two-stage process." Syrja v. Westat, Inc., 756 F.Supp.2d 682, 686 (D.Md.2010). In the first stage, commonly referred to as the "notice stage," the court makes a "threshold determination of `whether the plaintiffs have demonstrated that potential class members are `similarly situated," such that court-facilitated notice to putative class members would be appropriate." Id. (quoting Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D.Md.2000)). The court granted conditional certification in this case on April 10, 2012. See Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560 (D.Md.2012).
In the second stage, following the close of discovery, the "court engages in a more stringent inquiry to determine whether the plaintiff class is [in fact] `similarly situated' in accordance with the requirements of [Section] 216, and renders a final decision regarding the propriety of proceeding as a collective action." Dorsey v. TGT Consulting, LLC, 888 F.Supp.2d 670, 686 (D.Md.2012) (quoting Syrja, 756 F.Supp.2d at 686) (first alteration in original). Generally, "plaintiffs bear the burden of showing that their claims are `similarly situated,'" and "district courts have broad discretion to determine whether a collective action is an appropriate means for prosecuting an FLSA cause of action." Gionfriddo v. Jason Zink, LLC, 769 F.Supp.2d 880, 886 (D.Md.2011) (citation omitted). "In considering a motion to decertify alleging dissimilarity of the plaintiff class, courts have considered three factors: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations." Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D.Md.2007). "Similarly situated" does not mean "identical," however. Gionfriddo, 769 F.Supp.2d at 886 (citing Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir.2001)).
"The first factor of the decertification analysis involves an assessment of whether Plaintiffs have provided evidence of a company-wide policy which may violate the FLSA, as well as an assessment of Plaintiffs' job duties, geographic location, supervision, and salary." Dorsey, 888 F.Supp.2d at 687 (quoting Rawls, 244 F.R.D. at 300). Defendants submit that the individual and variable nature of the technicians' claims renders them unfit for collective adjudication. They point to what they contend are numerous complications. First, technicians worked varying hours: one technician would work twenty hours in a week while another technician would work more than forty hours that same week. Additionally, because they worked on a piece-rate system, the same technician's weekly hours could fluctuate depending on the amount and types of assignments he received. Defendants maintain that the piece-rate system provides the second complication: because technicians differ in their effort and efficiency, the hourly wage paid to a technician varied from job to job and worker to worker. As an example, they point to testimony from Mr. Adams, who testified that his hours worked, production rate, and compensation rate changed weekly. (ECF No. 202-22, at 11, Trans. 33:6-12). Similarly, Mr. Alston testified that every day on the job was different. (ECF No. 202-24, at 9, Trans. 14:17-19). Third, Defendants allege that under-reporting of time worked may be due to a host of different reasons, some benign and some representing potentially unlawful conduct. For example, they state that Mr. Bovell testified that his general feeling was that he had to look efficient on his time sheets to keep his job. (ECF No. 202-25, at 10, Trans. 31:7-17). Similarly, Mr. Grainger said that he was advised that appearing more productive would better position him for a promotion. (ECF No. 202-30, at 26, Trans. 44:12-19; see also No. 202-34, at 20, Trans. 46:22-24 (Kilson Dep.) (same)). Mr. Stone testified that he falsified hours worked to keep his "score" high which would help him keep his job. (ECF No. 202-46, at 16, Trans. 29:10-18). Defendants point to Mr. Tanoh to show contrast; Mr. Tanoh testified that he underreported his time so that he would get assigned more jobs. He was never told by anyone to underreport his time so as to appear more efficient. (ECF No. 202-47, at 31, Trans. 53:7-22). The fourth complication cited by Defendants is that Plaintiffs do not have records of the time that they actually worked that went unreported on their official time sheets. Defendants contend that more than half of the opt-in Plaintiffs have produced no records at all, let alone actual records demonstrating hours allegedly worked but not recorded. Defendants also point to testimony from technicians who stated that they could not identify which time sheets are accurate and which are not. (See, e.g., ECF Nos. 202-25, at 10, Trans. 31:18-22; 202-47, at 26, Trans. 40:10-14).
Plaintiff contends that he and the twenty-five opt-in Plaintiffs all:
(ECF No. 251, at 7 (citations omitted)). Plaintiffs contend that the evidence demonstrates that they were required to record their start time as the time they arrived at their first job and their end time as the time they completed their last job. While they were not instructed or permitted to record time worked outside of those times, Plaintiffs maintain that they all were required to perform compensable work before their "start time," including accessing their work assignments and mapping out that day's route, as well as calling that day's customers to confirm the appointment and provide an estimated time of arrival. Similarly, Plaintiffs assert that Defendants required them to perform work after their "end time." Defendants provided each Plaintiff a vehicle, which was considered the technician's "roaming office;" Plaintiffs contend that Defendants required them to unload their equipment and secure it in their home, and then inspect the vehicle at the end of each day. Plaintiffs submit that, despite considering the vehicle to be the technician's roaming office, Defendants did not permit Plaintiffs to record the time they spent driving to their first job of the day. Furthermore, "virtually all Plaintiffs who were asked testified that they would assemble satellite dishes at home and off-the-clock." (ECF No. 251, at 12).
In support of their position that the off-the-clock work they performed was done pursuant to official company policy, Plaintiffs point to the testimony of Mr. Kenneth Hildibrand, former General Manager of D.C. North, and Joseph Harley, former Field Supervisor at D.C. South, who each testified that the technician's company-provided van was akin to his rolling office. (ECF No. 251-1, at 8, Trans. 22:16-18; No. 251-2, at 7, Trans. 20:12-16). DirectSAT wanted its technicians at their first job between 8:00 am and 8:30 am. (ECF No. 251-1, at 9, Trans. 26:10-13). Technicians were typically expected to work at least five days a week, but sometimes worked six days a week. (ECF No. 251-1, at 10, Trans. 32:14-19; No. 251-1, at 6, Trans. 20:3-8). Technicians were to list their start time as when they arrived at their first job of the day and list their end time as when they left their last job of the day. (ECF No. 251-1, at 11, Trans. 34:1-14; No. 251-2, at 10, Trans. 34:13-35:1). Mr. Hildibrand testified that time spent by technicians in the morning checking the day's assignments, pre-calling customers, bringing their meters between the home and vehicle at the beginning and end of the day, and driving between their home and the first and last assignment of the day did not count as being "on-the-clock." (ECF No. 251-1, at 16, 17, Trans. 34:25-35:3, 61:1:18, 63:21-64:3). Mr. Hildibrand and Mr. Harley both testified that the technicians at D.C. South operated in the same manner and subject to the same rules as the technicians at D.C. North. (ECF No. 251-1, at 19-20, Trans. 69:15-70:1; No. 251-2, at 15, Trans. 52:6-53:17).
Walter Hanson, a former General Manager of DirectSAT who worked out of the Maryland offices stated that "[t]echnicians regularly performed work before arriving at their first job and after completing their last job without pay[,] including" preparing satellite dishes, loading and unloading equipment from their vehicles, attending weekly meetings at DirectSAT's offices, receiving their assignments for the day, pre-calling customers, and washing and maintaining their vehicles. (ECF No. 251-3 ¶ 11).
Furthermore, company policy — reflected in various employee handbooks — stated that an employee's start time was when he arrived at work and his end time was when
The differences among technicians are not significant or, alternatively, go more toward damages than liability. The fact that some technicians occasionally worked fewer than forty hours a week (even considering the alleged unpaid work) means that Defendants are not liable to these individuals for unpaid overtime pay under the FLSA, but this difference is not so prevalent as to preclude liability to the collective as a whole; instead, it can be addressed in Plaintiffs' individual damages calculations. Similarly, the fact that Mr. Tanoh testified that he underreported his hours because he wanted to receive more jobs does not render the collective dissimilar on this issue, especially in light of the testimony from other Plaintiffs stating otherwise. Furthermore, one's motivation for performing off-the-clock work is not relevant for FLSA purposes if the employer knows or should know about it. See Falcon v. Starbucks Corp., 580 F.Supp.2d 528, 537 (S.D.Tex.2008); 29 C.F.R. § 785.13 (noting that "it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed"). Moreover, the fact that Plaintiffs' damages calculations are more difficult because the technicians' hourly rates fluctuated due to the piece-rate system, is not by itself a reason to decertify a collective.
Finally, the absence of records documenting Plaintiffs' off-the-clock work is not fatal to the collective. The FLSA makes clear that employers, not employees, bear the ultimate responsibility for ensuring that employee time sheets are an accurate record of all hours worked by the employees. 29 U.S.C. § 211(c). Plaintiffs bear the burden of proving that they performed overtime work for which they were not compensated, but this burden is not insurmountable. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). Where, as here, the employer does not have precise records of the employee's hours,
Id. at 687-88, 66 S.Ct. 1187; see also Pforr v. Food Lion Inc., 851 F.2d 106, 108 (4th Cir.1988) (The FLSA "does not mandate that a plaintiff prove each hour of overtime work with unerring accuracy or certainty.").
Defendants further argue that decertification is appropriate because there is no common policy, plan, or scheme to violate the FLSA. Defendants' policy was for technicians to record all time worked and to pay for hours worked, even if it constituted overtime. According to Defendants,
In response, Plaintiffs contend that Defendants are making too much of the differences between and among individual technicians. In a wage-and-hour action, there are always going to be differences among workers' hours, but that is not a reason to deny certification especially where, as here, the time records for all twenty-six Plaintiffs exist. "Accordingly, [Plaintiffs contend that] calculating damages will involve a ministerial exercise of adding unpaid pre- and post-shift time to Plaintiffs' time records." (ECF No. 251, at 26).
Second, Plaintiffs argue that the fact that the piece-rate system results in differing effective hourly wages is not a reason to deny certification because the timesheets exist, which provide the hourly
Third, Plaintiffs contend that Defendants are incorrect in their position that the technicians underreported their time for a variety of reasons. Plaintiffs maintain that the evidence demonstrates that Plaintiffs were instructed and only permitted to record their start time as the time they arrived at the first job site and their end time as the time they completed their last job, despite the fact that they performed compensable work before and after those times. Finally, it is Defendants' — not Plaintiffs' — responsibility to keep records of the time worked by the technicians. Plaintiffs assert that this case has "several layers of evidence" showing time worked, including Plaintiffs' testimony, time records, GPS logs, and data from the online assignment tool. They argue that the supposed variances are not detrimental to the claims, are eclipsed by Defendants' overarching scheme, and can be managed through common proof applicable to all twenty-six Plaintiffs. Plaintiffs also state that the evidence marshalled to-date demonstrates that "Defendants uniformly required Plaintiffs to work before the start of their first job and after the end of their last job performing the same exact tasks." (ECF No. 251, at 24).
"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 v. Dollar Tree Stores, Inc., 30 F.Supp.3d 463, 474, No. 2:12-CV-00363, 2014 WL 934379, at *10 (E.D.Va. Mar. 7, 2014) (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." Falcon, 580 F.Supp.2d at 540. The existence of a common policy "may assuage concerns about plaintiffs' otherwise varied circumstances." Crawford v. Lexington-Fayette Urban Cnty. Gov't, No. 06-299-JBC, 2008 WL 2885230, at *5 (E.D.Ky. July 22, 2008) (quoting Wilks v. Pep Boys, No. 3:02-0837, 2006 WL 2821700, at *3 (M.D.Tenn. Sept. 26, 2006)); see also England v. New Century Fin. Corp., 370 F.Supp.2d 504, 507 (M.D.La.2005) ("If there is sufficient evidence of an employer's pattern of subjecting employees to the same improper practice, that would be sufficient to warrant a finding of similarity justifying collective adjudication."). The present case does not involve a situation where Defendants had a policy — that included paying for work done before and after the first and last job of the day — which was administered improperly. Here, Plaintiffs allege, and there is corroborating evidence, that Defendants' policy was that compensation began upon arrival at the first job and ended upon departure from the last job, despite the alleged requirement that they perform various tasks outside of the compensable hours. Whether such a policy existed and its scope will be determined at trial. The evidence demonstrates that there was a policy that technicians pre-call customers before driving to their first job of the day. In regard to building satellite dishes, while not every technician testifies to doing so, a sufficient number of technicians have stated that they spent time off-the-clock building dishes pursuant to either explicit or implicit instructions from their supervisors. Similarly, Plaintiffs' claims for time spent driving from their homes to their first job sites are sufficiently similar to counsel against decertification. "A fact finder may
Defendants make much of the decision decertifying the collective in Espenscheid.
"The individualized defenses factor assesses whether potential defenses pertain to the plaintiff class or whether the potential defenses require proof of individualized facts at trial." Rawls, 244 F.R.D. at 300. Defendants argue that the first individualized defense is the statute of limitations, which they argue pertains to Butler and eight opt-in Plaintiffs whom they allege only have a viable FLSA claim if they extend the statute of limitations to three years by proving willfulness. If this case proceeds as a collective with nine Plaintiffs having to prove willfulness, Defendants contend that they will be prejudiced as to the remaining opt-in Plaintiffs who do not need to prove willfulness.
These arguments are unavailing. To the extent Plaintiffs are alleging that their work was uncompensated due to a policy, proof that such a policy existed can be ascertained not by inquiring into each technician, but instead by looking at the collective as a whole and Defendants' overarching policies. Additionally, Defendants will not be prejudiced by letting the collective attempt to prove willfulness for the benefit of only some of the opt-in Plaintiffs. If an individual plaintiff was proceeding on a claim that fell within the normal two-year limitations period, it would not be considered prejudicial to an employer if, for whatever reason, the employee desired to go beyond what is required by attempting to prove willfulness. Such overachieving is not prejudicial. See Johnson v. Wave Comm GR LLC, 4 F.Supp.3d 453, 460 (N.D.N.Y.2014) ("It would be inefficient to deny the collective adjudication of these claims merely because the statute of limitations must be applied to each plaintiff individually when determining damages.").
Defendants next argue that Butler and four opt-in Plaintiffs were also opt-in plaintiffs in the Espenscheid case and, as such, were party plaintiffs. Consequently, the summary judgment and decertification rulings in that case have a preclusive effect on their individual and collective action claims in the present case. A defense as to five of twenty-six Plaintiffs is not so great as to counsel in favor of decertification.
Defendants submit that they will also assert a lack of knowledge defense for any off-the-clock work performed by each individual Plaintiff. Defendants make similar arguments as those rejected above as to the individualized nature of this defense. It is not apparent, however, why this defense is individualized as opposed to adjudicated on a collective basis. The question of whether Defendants were aware of the "off the clock" work could be adequately raised at trial by using representative testimony. Falcon, 580 F.Supp.2d at 540. Defendants also argue that Plaintiffs' depositions reveal discrepancies between their claims and create numerous credibility concerns that strike at the heart of the liability analysis. "Contradictions in testimony among the plaintiffs `are matters of credibility for the factfinder, not individualized defenses.'" Crawford, 2008 WL 2885230, at *10 (quoting Pendlebury v. Starbucks Coffee Co., 518 F.Supp.2d 1345, 1362 (S.D.Fla.2007)).
Finally, Defendants note that Plaintiffs admit that certain workweeks are not at issue in their respective claims, but for varying reasons, including that: their production was below twenty hours and would be ineligible for overtime even if the outside hours were added; they were on light duty, leave of absence, jury duty, or on paid time off. Defendants add that additional
The final factor takes into account fairness and procedural considerations. Under this factor, the court considers:
Dorsey, 888 F.Supp.2d at 689 (quoting Rawls, 244 F.R.D. at 302). Defendants rest their argument on the latter question, arguing that the record demonstrates that each Plaintiff's claim must be determined on a case-by-case basis, resulting in individual mini-trials on liability and damages. They contend that maintaining the collective will only serve to confuse the jury, conflate legal and factual issues that must be kept distinct, and potentially infringe upon Defendants' due process rights.
In response, Plaintiffs argue that Defendants already have individualized discovery from all twenty-six Plaintiffs and have the necessary evidence to proceed to trial. They contend that the alternative to the collective action is twenty-six individual lawsuits, resulting in piecemeal litigation and inconsistent adjudications. Plaintiffs note that each trial would use much of the same evidence and witnesses, to further their argument that common questions can be answered with common proof: "Defendants' liability will be established through the testimony of its own management personnel and its own internal business records,... [and] will be further established through the testimony of the Plaintiffs." (ECF No. 251, at 29).
Procedural efficiency and fairness counsel in favor of maintaining this suit as a collective action. The potential damages in this case are relatively low, and therefore "each individual Plaintiff would be unlikely to pursue his or her claim because of the costs involved relative to the damages sought." Rawls, 244 F.R.D. at 302; see also Monroe v. FTS USA, LLC, 763 F.Supp.2d 979, 996 (W.D.Tenn.2011) (noting that breaking up claims of 300 plaintiffs would "hinder, if not preclude, their resolution by judicial means"). "`A district court has wide discretion to manage collective actions,' and many fairness and due process concerns can be addressed through trial management, such as the bifurcation of liability and damages, and/or dividing the action into various subclasses." Thompson v. Bruister and Assocs., Inc., 967 F.Supp.2d 1204, 1222 (M.D.Tenn. 2013) (quoting Alvarez v. City of Chicago, 605 F.3d 445, 449 (7th Cir.2010)). While Defendants are correct that perhaps not every task performed by every opt-in Plaintiff can be compensated, these issues can be worked out in the damages phase.
Going forward, this case will be divided into two stages: liability and damages. The liability phase will focus on whether: (1) the collective performed overtime hours
In the damages phase, Plaintiffs will need to present representative evidence to calculate damages or, more likely, each Plaintiff will need to submit a damages calculation, subject to challenge by Defendants. While this phase could lead to in essence twenty-six mini-trials on the question of damages, it would still be more efficient than having twenty-six mini-trials on damages and liability. Defendants overlook that while the collective action may not be a perfect for all aspects of this litigation, it still provides benefits that piecemeal litigation cannot offer. See Bobbitt v. Broadband Interactive, Inc., No. 8:11-cv-2855-T-24 MAP, 2013 WL 5720329, at *17 (M.D.Fla. Oct. 21, 2013) ("Common evidence can be used for the liability phase. The fact that common evidence, by itself, will not be sufficient for the damages phase (if liability is proven) does not undermine the judicial economy that can be achieved from this case proceeding as a collective action."). Accordingly, the motion to decertify will be denied.
Plaintiffs and Defendants have each filed unopposed motions to seal selected exhibits that accompanied their motion to decertify and opposition. Defendants seek to seal Exhibits 1-4, 11-12, and 47-87 to their motion to decertify. These include a full copy of DirectSAT's Employee Policy Manual (ECF No. 203); full copies of DirectSAT's Employee Handbook (ECF Nos. 204-206); a "Payroll Explanation and Compliance Form" completed by every Plaintiff (ECF No. 207); numerous copies of Defendants' rate sheet signed by Plaintiffs (ECF No. 208); copies of paystubs (ECF Nos. 209-211, 231, and 244); copies of Defendants' paycheck verification procedures signed by each Plaintiff (ECF No. 212); personnel documents for various opt-in Plaintiffs and Butler (ECF Nos. 213-215, 218-222, 224-229, and 232-235); timesheets (ECF Nos. 217, 223, 230, and 236-243); and "Manager Reports" which track each technicians' work time (ECF Nos. 245-246).
Plaintiffs seek to seal Exhibits D, O, P, U, V, W, Y, Z, EE & FF to their opposition to the motion to decertify (ECF Nos. 252 to 252-9). These exhibits are a signed acknowledgment by opt-in Plaintiff Murray of Defendants' paycheck verification procedures (ECF No. 252); Defendants' vehicle policy (ECF No. 252-1); Defendants' GPS policy (ECF No. 252-2); a corrective action form prepared for opt-in Plaintiff Murray (ECF No. 252-3); a completed "Truck Kit/Tool Issuance Form" for opt-in Plaintiff Poindexter (ECF No. 252-4); a signed acknowledgement by opt-in Plaintiff Poindexter of Defendants' Technician Cell Phone Policy (ECF No. 252-5); Defendants' timekeeping policy (ECF No. 252-6); Defendants' behavior policy for technicians (ECF No. 252-7); a timesheet for opt-in Plaintiff Adams (ECF No. 252-8); and a paystub for opt-in Plaintiff Adams (ECF No. 252-9).
"The right of public access to documents or materials filed in a district court derives from two independent sources: the common law and the First Amendment." Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004). "The common law presumes a right of the public to inspect and copy `all judicial
In addition to the public's common law right of access, the First Amendment provides a "more rigorous" right of access for certain "judicial records and documents." Va. Dep't of State Police, 386 F.3d at 575-76; see also In re Application of the United States for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir.2013) (explaining the "significant" distinction between the two rights of access). Where the First Amendment does apply, access may be denied "only on the basis of a compelling governmental interest, and only if the denial is narrowly tailored to serve that interest." Stone, 855 F.2d at 180.
"For a right of access to a document to exist under either the First Amendment or the common law, the document must be a `judicial record'" in the first instance. In re Application, 707 F.3d at 290. The Fourth Circuit recently held that judicially authored or created documents are "judicial records," as are documents filed with the court that "play a role in the adjudicative process, or adjudicate substantive rights." Id. (citing Rushford, 846 F.2d at 252; In re Policy Mgt. Sys. Corp., 67 F.3d 296 (4th Cir.1995) (unpublished table decision)).
Thus, as a substantive matter, when a district court is presented with a request to seal certain documents, it must determine two things: (1) whether the documents in question are judicial records to which the common law presumption of access applies; and (2) whether the documents are also protected by the more rigorous First Amendment right of access. In re Application, 707 F.3d at 290; see also Va. Dep't of State Police, 386 F.3d at 576.
The sealing of any judicial record must also comport with certain procedural requirements. First, the non-moving party must be provided with notice of the request to seal and an opportunity to object. In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir.1984). This requirement may be satisfied by either notifying the persons present in the courtroom or by docketing the motion "reasonably in advance of deciding the issue." Id. at 234. In addition, "less drastic alternatives to sealing" must be considered. Va. Dep't of State Police, 386 F.3d at 576; see also Local Rule 105.11 (requiring any motion to seal to include both "proposed reasons supported by specific factual representations to justify the sealing" and "an explanation why alternatives to sealing would not provide sufficient protection"). Finally, if sealing is ordered, such an order must "state the reasons (and specific supporting findings)" for sealing and must explain why sealing is preferable over its
Defendants submit that the exhibits related to their motion to decertify should be sealed as they were deemed confidential pursuant to the court-approved Confidentiality Stipulation (ECF Nos. 37 and 38) because they contain confidential and proprietary business information and/or were produced from employee personnel files that contain sensitive personal and commercial information. The full copies of Defendants' employee handbooks and policy manuals will remain under seal. While Plaintiffs cite to their contents as evidence of Defendants' allegedly unlawful policies, Plaintiffs submit the relevant portions of those documents with their oppositions. Consequently, the full copies submitted by Defendants can remain under seal.
The copies of the rate sheet and manager reports will also remain under seal. The information contained in them — the rates paid for different jobs performed and the salary for every technician, whether or not he is a Plaintiff — is not relevant to the disposition of the motion to decertify and is confidential information that can remain under seal. See Pittston Co. v. United States, 368 F.3d 385, 406 (4th Cir.2004)
Defendants' desire to seal the copies of the payroll explanation and compliance form and the paycheck verification procedure is not so obvious. Defendants maintain that this form constitutes confidential and proprietary business and commercial information related to: DirectSAT's payroll system, how DirectSAT compensates its technicians, DirectSAT's formula for calculating a technician's wages, and the procedures in place for how a DirectSAT technician must report any discrepancies or inaccuracies in his pay. But after reviewing these documents, they appear to be substantially similar to the document addressing piece-rate calculations that was previously found to be undeserving of sealing. Furthermore, Defendants, in their motion, discuss in essence the piece-rate system and rely on Plaintiffs' failure to utilize dispute mechanisms in regard to pay in support of their motion. The crux of this case is how Plaintiffs were paid for their work and whether Defendants knew or should have known about that uncompensated work. While it is true that Judge Schulze previously sealed these documents, her decision was in the context of a discovery dispute, not a motion to decertify a collective. See Marks v. Licul, No. DKC 13-0347, 2013 WL 6014026, at *8 (D.Md. Nov. 7, 2013) (whether a document should be sealed is "context-specific rather than content-specific"). Defendants will have fourteen (14) days to file a renewed motion to seal with redactions to Exhibits 11, (ECF No. 207), and 50, (ECF No. 212), to their motion to decertify, or explain why those documents must be sealed in their entirety.
The technicians' employee files will remain under seal. They consist of a checklist for technicians leaving the company and, for Butler, (ECF No. 214), a change of position form showing when he left his technician position to become a warehouse manager. The opt-in Plaintiffs' forms were used by Defendants only to illustrate when various opt-in Plaintiffs stopped working for Defendants and, in some cases, to illustrate potential statute of limitations issues. They were not relied upon in adjudicating the motion to decertify but the parties are on notice that in a different context there may not be sufficient justification to seal if, for instance, Defendants are asserting a statute of limitations defense and need to prove when a technician stopped working.
Next, Defendants seek to seal in their entirety a collection of timesheets and
Plaintiffs, on the other hand, do not attempt to justify their sealed documents beyond stating that have been designated confidential pursuant to the Confidentiality Stipulation. (ECF No. 253). Reliance on a boilerplate confidentiality order, with no attempt to redact portions of the filings, is insufficient for a motion to seal. See Visual Mining, Inc. v. Ziegler, No. PWG 12-3227, 2014 WL 690905, at *5 (D.Md. Feb. 21, 2014) (denying motion to seal when the only justification was that the documents are "confidential" under a court-approved Protective Order); Under Armour, Inc. v. Body Armor Nutrition, LLC, No. JKB-12-1283, 2013 WL 5375444, at *9 (D.Md. Aug. 23, 2013). Plaintiffs' failure to provide any factual support justifying its motion to seal is especially puzzling given that in an earlier decision in this case, the undersigned noted that a party's reliance on a confidentiality order alone is insufficient to satisfy the "specific factual representations" that Local Rule 105.11 requires. Butler, 876 F.Supp.2d at 576 n. 18. Plaintiffs will have fourteen (14) days to file a renewed motion to seal with redacted versions or, alternatively, explain why one or more of these documents must be sealed in their entirety. Examining the documents, it is not apparent why portions of Defendants' employee handbook outlining the timekeeping, cellphone, and other policies relevant and relied upon by both parties in their unsealed briefs should be sealed. Other documents include the timesheets and earnings statements discussed above. With regard to the employee discipline form and product inventory, it seems readily capable of redaction, in order to make public information aiding Plaintiffs' position.
For the foregoing reasons, Defendants' motion for decertification will be denied. Defendants' motion to seal will be granted in part and denied in part, while Plaintiffs' motion to seal will be denied. A separate order will follow.
29 C.F.R. § 778.111(a).
This is a surreply, which may not be filed unless otherwise ordered by the court. Local Rule 105.2(a). Although a district court has discretion to allow a surreply, surreplies are generally disfavored. Chubb & Son v. C.C. Complete Servs., LLC, 919 F.Supp.2d 666, 679 (D.Md.2013). A surreply may be permitted "when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md.2003). Defendants' motion will be denied. In Espenscheid, summary judgment was denied and later the collective was decertified. There is nothing improper about a party leaning on the ruling that supports his position and distancing himself from the ruling that hurts his position.
