TANYA S. CHUTKAN, United States District Judge.
Plaintiffs Alex Rivera, Medardo Escobar, Jenry Escobar, Alfonso Escobar and
The Named Plaintiffs' Motion for Conditional Certification of Collective Action and to Facilitate Notice (the "Motion") requests that the court conditionally certify this case as a collective action pursuant to the FLSA, 29 U.S.C. § 216(b), and the DCMWA, former D.C. Code § 32-1012(b), on behalf of "all nonexempt employees who performed construction duties for Power Design at the [Project] from April 2012 to the final disposition of this action." (Motion at 1). The Named Plaintiffs also request that the court facilitate notice to all such persons of their rights to join in this case. (Id.).
Upon consideration of the Motion and supporting memorandum, Power Design's opposition thereto, and the Named Plaintiffs' reply in support thereof, and for the reasons set forth below, the Named Plaintiffs' Motion is hereby
The Named Plaintiffs allege that Defendants employed them as electricians on the Project in December 2014. (See Am. Compl. ¶¶ 4, 7, 10, 13, 16). Power Design asserts that while it served as an electrical installation subcontractor on the Project, it also subcontracted certain electrical installation work on the Project out to several of its own subcontractors, including E.A. Electric. (See Opp'n at 1). Power Design also asserts that the Named Plaintiffs worked for E.A. Electric and its owner, Emerson Alvarado, not for Power Design itself. (See id. at 1, 6).
The Named Plaintiffs allege, however, that Power Design used E.A. Electric as a "labor-only broker," and that Power Design was their joint employer along with E.A. Electric and Alvarado, citing Power Design's "activities at the Project and its control over workers hired by its labor brokers." (Reply at 2). The Named Plaintiffs allege, for example, that (i) Power Design provided all instructions to them, with an E.A. Electric employee serving only to translate the instructions from English to their native Spanish; (ii) they were required to sign in and out each day on Power Design timesheets; and (iii) they were required to wear safety equipment with Power Design's logo. (See id. at 2-3 (citing Am. Compl. ¶¶ 32-33)).
The Named Plaintiffs also allege that (i) they observed between ten and fifteen other workers performing similar work on the Project while they were there (see Mot. Exs. 1-5 (Declarations of Each Named Plaintiff) ¶ 10); (ii) a Power Design supervisor closely monitored and directed the work of these individuals, all of whom also
The Named Plaintiffs filed their initial complaint against the Defendants in the Superior Court of the District of Columbia in April 2015. (See Complaint for Unpaid Wages (the "Initial Complaint")). The Initial Complaint alleged that the Defendants violated the DCMWA and the D.C. Wage Payment Collection Law in failing to pay the Named Plaintiffs for work they performed on the Project, and requested relief including $11,040 in unpaid wages and $33,120 in liquidated damages. (See id.).
On May 13, 2015, the Named Plaintiffs filed an Amended Complaint in Superior Court, adding claims for violation of the FLSA and the Workplace Fraud Act. (See Am. Compl. ¶¶ 46-56, 70-75). They also restyled their action as, inter alia, one brought on behalf of themselves and putative FLSA and DCMWA opt-in collectives under 29 U.S.C. § 216(b) and D.C. Code § 32-1012(b). (See id. ¶¶ 22-26). Putative plaintiffs were alleged to include individuals who performed construction duties for Power Design at the Project from April 2012 to the final disposition of this action, who were similarly undercompensated for their work. (See id. ¶¶ 22-23).
In June 2015, Power Design, with the consent of E.A. Electric and Alvarado, removed this action to federal court pursuant to 28 U.S.C. § 1441(c) on the ground that the addition of the FLSA claim conferred jurisdiction upon this court pursuant to 28 U.S.C. § 1331. (See Notice of Removal ¶¶ 5, 10).
In July 2015, the Named Plaintiffs filed a status report informing this court that they had settled with E.A. Electric and Alvarado while the case was still in Superior Court. The court dismissed the action with prejudice against E.A. Electric and Alvarado the day after the status report was filed.
In August 2015, the Named Plaintiffs filed the instant Motion, requesting the court to conditionally certify this case as a collective action pursuant to the FLSA, 29 U.S.C. § 216(b), and the DCMWA, former D.C. Code § 32-1012(b). Specifically, the Named Plaintiffs seek conditional certification on behalf of "all nonexempt employees who performed construction duties for Power Design at the [Project] from April 2012 to the final disposition of this action." (Mot. at 3). The Named Plaintiffs also request that the court facilitate notice to all such persons of their rights to join in this case. (See id.).
Power Design opposes conditional certification on numerous grounds. First, it argues that the Named Plaintiffs' allegations that they are similarly situated to the putative plaintiffs (i) are conclusory and insufficient; (ii) fail to provide sufficient evidence that putative plaintiffs even exist; and (iii) overlook the fact that the Named Plaintiffs received the wages at issue in this action via their settlement with E.A. Electric and Alvarado, while the putative plaintiffs have not. Second, Power Design argues that it was not the Named Plaintiffs' or the putative plaintiffs' employer-in-fact. Third, Power Design asserts that it is not capable of providing the requested notice to putative class members because it does not have their names and last known addresses.
The FLSA requires employers to pay minimum wage for compensable working time and an overtime premium for compensable hours worked in excess of forty hours per week. See 29 U.S.C. §§ 206, 207. The FLSA contemplates what is commonly referred to as a "collective action," in which named plaintiffs bring claims on behalf of other "similarly situated" employees who become part of the action only upon filing a written consent:
29 U.S.C. § 216(b). "With collective actions, district courts have considerable discretion in managing the process of joining similarly situated employees in a manner that is both orderly and sensible." Dinkel v. MedStar Health, Inc., 880 F.Supp.2d 49, 52 (D.D.C.2012); see also Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).
Federal courts typically engage in a two-stage inquiry when evaluating whether an FLSA claim should proceed as a collective action. See Dinkel, 880 F.Supp.2d at 52. "At the first stage, often loosely referred to as `conditional certification,' the named plaintiffs must present some evidence, beyond pure speculation, of a factual nexus between the manner in which the employer's alleged policy affected [them] and the manner in which it affected other employees." Id. at 53 (quotation and citation omitted); see also Eley v. Stadium Grp., LLC, No. 14-cv-1594 (KBJ), 2015 WL 5611331, at *1 (D.D.C. Sept. 22, 2015). Put differently, "plaintiffs must make a `modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law.'" Blount v. U.S. Sec. Assocs., 945 F.Supp.2d 88, 92 (D.D.C.2013) (quoting Hunter v. Sprint Corp., 346 F.Supp.2d 113, 117 (D.D.C.2004)). This showing "has been described as `not particularly stringent, fairly lenient, flexible, [and] not heavy.'" Dinkel, 880 F.Supp.2d at 53 (alteration in original) (quoting Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir.2008)) (quotation omitted). This showing may also "be satisfied based on pleadings and affidavits." Blount, 945 F.Supp.2d at 93.
If the named plaintiffs make the required showing, then a court "may conditionally certify the class and may facilitate notice of the collective action to potential plaintiffs to give them the opportunity to opt in to the litigation." Id. at 92. The case then "proceeds as a representative action through discovery." Id.
The second stage of the certification process occurs after discovery, at which point the defendant "may move to decertify the class based on the evidentiary record developed during the discovery period." Id. at 93. At that point, the court conducts a more searching inquiry to determine "whether each plaintiff who had opted in ... is in fact similarly situated to the named plaintiff[s]." Dinkel, 880 F.Supp.2d at 53 (alteration in original) (quotation and citation omitted).
This case is at the conditional certification stage, and therefore, as noted above, the Named Plaintiffs' burden at this stage is not onerous and may be satisfied based on the pleadings and affidavits.
The Named Plaintiffs assert that they and the prospective class members:
(Am. Compl. ¶ 24). Power Design argues that the Named Plaintiffs have failed to sufficiently establish that they are similarly situated to any putative plaintiffs. The court finds that at this stage, the Named Plaintiffs have met their burden of showing that they are similarly situated to other putative plaintiffs.
As an initial matter, the court disagrees with Power Design's assertion that the Named Plaintiffs have insufficiently alleged the existence of putative plaintiffs. The Named Plaintiffs each assert that they observed between ten and fifteen other workers performing similar work as them on the Project. (See Mot. Exs. 1-5 (Declarations of Each Named Plaintiff) ¶ 10). They also allege that a Power Design supervisor closely monitored and directed the work of these individuals, all of whom recorded their hours on Power Design timesheets. (See Am. Compl. ¶¶ 32, 36). Lastly, a declaration from one of the Named Plaintiffs states that about five putative plaintiffs told him that they had not received the pay they had been promised. (See Mot. Ex. 3 (Declaration of Jenry Escobar) ¶ 10).
Power Design contends that the dearth of any information pertaining to these putative plaintiffs is fatal to the Motion. But allegations regarding the kinds of missing information cited by Power Design — i.e., the putative plaintiffs' specific job titles, the Power Design subcontractor with whom they contracted, their pay rates, hours worked, and the like — are not necessary at this stage of the proceedings. (See Opp'n at 10). The appropriate time to address the existence or absence of such information is at the second stage of the certification process, at which time Power Design "may move to decertify the class based on the evidentiary record developed during the discovery period," thus requiring the court to make a factual determination as to "whether the plaintiffs who have opted in are in fact `similarly situated'" to the Named Plaintiffs. Blount, 945 F.Supp.2d at 93 (citations omitted).
All the Named Plaintiffs are required to do at this point in the proceedings is "present some evidence, beyond pure speculation, of a factual nexus between the manner in which [Power Design's] alleged policy affected" them and the manner in which it affected the putative plaintiffs. Dinkel, 880 F.Supp.2d at 53 (quotation and citation omitted). The court finds that the Named Plaintiffs have satisfied their modest burden by alleging that both they and the putative plaintiffs worked for Power Design on the Project and were undercompensated in violation of the FLSA. (See, e.g., Mem. at 3; Am. Compl. ¶¶ 35, 37-43). The fact that Power Design disputes that it controlled the Named Plaintiffs' or putative plaintiffs' work, and its assertion that it had no control over its subcontractors' employees, are of no moment at this point, given that plaintiffs may satisfy their burden at the conditional certification stage by reference to the pleadings and affidavits. The appropriate time to address Power Design's arguments in this regard is at the second stage of the certification process.
Per the foregoing, the court finds that the Named Plaintiffs have sufficiently alleged at this stage of the case that Power Design was their employer under the FLSA by alleging that:
The court likewise finds that the Named Plaintiffs have sufficiently alleged that Power Design was also the putative plaintiffs' employer by alleging that:
Power Design also asserts that even if it were liable to the Named Plaintiffs as a joint employer, the Named Plaintiffs fail to
Moreover, while the Named Plaintiffs have not identified Power Design's other subcontractors on the Project, it is fair to infer that Power Design knows the identities of those subcontractors, and will disclose their identities during the discovery period between the first and second stages of the certification process. The court agrees with the Named Plaintiffs that the same considerations that applied in Lima v. Int'l Catastrophe Solutions, Inc. are applicable here:
493 F.Supp.2d 793, 799-800 (E.D.La.2007) (citation omitted).
Given that the Named Plaintiffs have sufficiently alleged that Power Design employed them and the putative plaintiffs on the Project, and given the lenient standard at this early stage of the case, the court is satisfied that the Named Plaintiffs and the putative plaintiffs are similarly situated with respect to Power Design's alleged policies so as to justify conditional certification and notice to the putative plaintiffs.
In light of the foregoing, the court will conditionally certify the following FLSA class pursuant to 29 U.S.C. § 216(b):
The Supreme Court has recognized that the benefits of a collective action "depend on employees receiving accurate and timely notice ... so that they can make informed decisions about whether to participate." Sperling, 493 U.S. at 170, 110 S.Ct. 482. "Because trial court involvement in the notice process is inevitable in cases with numerous plaintiffs where written consent is required by statute, it lies within the discretion of a district court to begin its involvement early, at the point of the initial notice, rather than at some later time." Id. at 171, 110 S.Ct. 482.
Power Design asserts that ordering it to provide the Named Plaintiffs with the last known addresses of the putative plaintiffs will not facilitate notice to class members because it does not have their names or contact information, given that it subcontracted electrical installation work at the Project to E.A. Electric and others. In support of this claim, Power Design provides a Declaration of its Legal Counsel, who states that he is "familiar with Power Design's corporate structure and its executive, administrative, financial and management functions," and that
(Opp'n Ex. 2, Declaration of Bill Jordan (the "Jordan Declaration") ¶¶ 1-2, 4-6).
The Named Plaintiffs take issue with Power Design's claims, arguing that the facts as pled indicate that the individuals who worked for Power Design and/or its labor brokers on the Project were required to sign in and out on Power Design timesheets each day, which Power Design presumably still has in its possession. (See Reply at 5-6). The Named Plaintiffs assert that identifying the information needed to facilitate notice should be as simple as Power Design searching its own business and employment records and reaching out to its labor brokers on the Project to ask them to do the same with their business and employment records. (See id.).
The court agrees with the Named Plaintiffs. As an initial matter, the Jordan Declaration provides only the vaguest support for its conclusions — i.e., a Power Design lawyer's purported familiarity with the company's "corporate structure and its executive, administrative, financial and management functions." (Jordan Declaration ¶ 2). It says nothing of whether the declarant, or anyone else associated with Power Design (such as, for example, an HR employee or an employee specifically tasked with maintaining the company's business and/or employment records), conducted any kind of search for the names and addresses of potential class members.
The Jordan Declaration also focuses solely on Power Design's subcontractors on the Project, even though potential class members would include not only those who worked for Power Design's subcontractors, but also those who worked directly for Power Design. For example, Power Design's representation that it subcontracted out "
Moreover, as the Named Plaintiffs point out, Power Design can simply contact the subcontractors it worked with on the Project to request the names and addresses of any potential class members. Power Design's argument that it is unable to do so because the Named Plaintiffs have not identified those subcontractors defies common sense. All that Power Design needs to know in order to request the names and last known addresses of potential class members from its subcontractors on the Project is (i) the scope of the putative class (which is provided by this Memorandum Opinion and the accompanying Order), and (ii) the names of those subcontractors (which Power Design presumably possesses given that it did business with them on the Project).
Given the foregoing, and in light of the fact that "[c]ourts routinely order the production of names and addresses in collective actions," Blount, 945 F.Supp.2d at 97; see also Castillo v. P & R Enterprises, Inc., 517 F.Supp.2d 440, 448 (D.D.C.2007); Hunter v. Sprint Corp., 346 F.Supp.2d 113, 121 (D.D.C.2004), the court hereby orders Power Design to (i) thoroughly review its business and employment records for the Project for the relevant class period in order to find the names and addresses of any potential class members, and (ii) contact any of its subcontractors on the Project that may have records relating to any potential class members and request that they do the same. Power Design will have until three months from the issuance date of this Memorandum Opinion to provide the Named Plaintiffs with the names and last known addresses of all potential members of the class conditionally certified above.
Additionally, the court notes that while the Named Plaintiffs asserted in their Motion that they would "provide the form of a proposed notice at the time of supplementation of this motion" (Mot. at 4), it does not appear that they have ever provided such form to the court. Therefore, the court hereby orders the Named Plaintiffs to submit a proposed form of notice for the plaintiff class conditionally certified above by no later than one month from the issuance date of this Memorandum Opinion.
The Named Plaintiffs acknowledge that the DCMWA portion of their Motion relies not on the present iteration of D.C. Code § 32-1012(b), which was in effect when their Initial Complaint was filed in Superior Court in April 2015, but on the version of the statute that was in effect in December 2014, when they performed the work at issue in this case. (See Mot. at 1 & n.1, 3; Mem. at 1-2). This former version of the DCMWA provided for an opt-in consent procedure mirroring that of the FLSA:
D.C. Code § 32-1012(b) (2001) (emphasis added); compare with 29 U.S.C. § 216(b). When this version of the DCMWA was in effect, federal courts routinely evaluated FLSA and DCMWA claims using the same standards and procedures for conditional certification and notice. (See, e.g., Opp'n at 4 & nn.3, 4).
In February 2015 — about two months before the Initial Complaint was filed — the DCMWA was amended. Its opt-in and
"Without opt-in and written-consent procedures that restrict the right of recovery to those who affirmatively file consents to participate in the suit, group claims brought under the new DCMWA are likely to resemble class actions, rather than collective actions," in which case they would presumably be governed by Federal Rule of Civil Procedure 23. Eley, 2015 WL 5611331, at *4 (quotation, citations and alterations omitted). Thus, as was the case in Eley, it may well be that the Named Plaintiffs "cannot proceed on their DCMWA claims utilizing the procedures applicable to the FLSA, and instead, they may be required to seek class certification under Rule 23." Id. (citation omitted).
While the parties have acknowledged that the Named Plaintiffs are moving pursuant to the version of D.C. Code § 32-1012 that was in effect during the month that they worked on the Project, the parties do not explain why this is the correct approach. (See Mot. at 1 & n.1, 3; Mem. at 1-2; Opp'n at 3 & n.2). For example, neither party addresses why the Named Plaintiffs should not be required to proceed with their DCMWA claim under the version of section 32-1012 that was in effect at the time they filed their Initial Complaint (i.e., the present version). Similarly, neither party addresses the question of whether the present version of section 32-1012 applies retroactively under the circumstances here.
The court will not grant the Motion as to the Named Plaintiffs' DCMWA claim in the absence of any briefing on what version of D.C. Code § 32-1012 applies to that claim. If Plaintiffs intend to further pursue collective certification and the facilitation of notice under the DCMWA, they must file a supplemental brief addressing the question of what version of section 32-1012 properly applies to their DCMWA claim — i.e., (i) the former version of the statute, which was in effect when they were performing the work at issue in this case, or (ii) the present version of the statute, which was in effect when they filed their Initial Complaint. See, e.g., Eley, 2015 WL 5611331, at *4 ("if Plaintiffs wish to pursue their DCMWA claims collectively, they will need to submit supplemental briefing that addresses the impact of the new DCMWA language on these claims"). If the Named Plaintiffs elect to file such a brief, it must be filed by no later than two months from the issuance date of this Memorandum Opinion. If the Named Plaintiffs file such a brief, a response may be filed by no later than one month thereafter.
For the reasons set forth above, the Named Plaintiffs' Motion for Conditional Certification of Collective Action and to Facilitate Notice is hereby
An appropriate Order accompanies this Memorandum Opinion.
