ROY B. DALTON, Jr., District Judge.
This cause is before the Court on the following:
Upon consideration, the Court finds that the motion is due to be granted in part and denied in part.
In this Fair Labor Standards Act ("FLSA") action, six named Plaintiffs,
With few exemptions, the FLSA's overtime provision "requires employers to pay one and one-half times the employee's regular rate of pay for hours worked in excess of forty hours per week." Prickett v. DeKalb Cnty., 349 F.3d 1294, 1296 (11th Cir. 2003) (citing 29 U.S.C. § 207(a)(1)). If an employer violates the overtime provision, affected employees may bring an action to recover not only the amount of their "unpaid overtime compensation," but also "an additional equal amount as liquidated damages." Id. (citing 29 U.S.C. § 216(b)).
To conserve judicial resources and lower litigants' costs, the FLSA authorizes collective actions against employers accused of violating the overtime provision.
Although district courts have wide discretion in determining how to manage an FLSA collective action, Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001), the U.S. Court of Appeals for the Eleventh Circuit has "sanctioned a two-stage procedure," Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008).
The first stage is the "notice" or "conditional certification" stage. Id. at 1261. At this stage, "the district court makes a decision—usually based only on the pleadings and any affidavits which have been submitted—whether notice of the action should be given to potential class members." Hipp, 252 F.3d at 1218. Named plaintiffs "bear the burden of showing a `reasonable basis' for [their] claim that there are other similarly situated employees" who, if notified, would opt into the action. Morgan, 551 F.3d at 1260. "Because the court has minimal evidence" at the notice stage, the reasonable basis standard is "fairly lenient"
The second stage is the "decertification" stage, so named because it is triggered by a defendant's motion to decertify the representative class "after discovery is largely complete and the matter is ready for trial." Id.
Id. The decertification stage is "less lenient" than the notice stage, and named plaintiffs "bear a heavier burden." Morgan, 551 F.3d at 1261.
The Court adopts the Eleventh Circuit's two-stage procedure for certification and management of this FLSA collective action. See Hipp, 252 F.3d at 1218. At this initial stage then, to prevail on their motion for conditional certification and notice dissemination, the named Plaintiffs must show a reasonable basis for their claim that other employees are: (1) interested in opting into this action; and (2) similarly situated. Id. The Court will address each issue in turn.
Named plaintiffs seeking conditional certification of a collective class bear the threshold burden of demonstrating actual interest in their action. Vondriska v. Premier Mortg. Funding, Inc., 564 F.Supp.2d 1330, 1334 (M.D. Fla. 2007) ("Certification of a collective action and notice to a potential class is not appropriate to determine whether there are others who desire to join the lawsuit."). That threshold burden is "not onerous," Kubiak v. S.W. Cowboy, Inc., No. 3:12-cv-1306-J-34JRK, 2014 WL 2625181, at *8 (M.D. Fla. June 12, 2014), but where a localized group of plaintiffs seeks a geographically expansive certification, discharging the burden requires more than their "counsel's unsupported assertions that FLSA violations [are] widespread and that additional plaintiffs [will] come from other [locations]." Haynes v. Singer Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983). Typically, named plaintiffs demonstrate actual interest by filing affidavits, consents to join, and other evidence from non-named employees who are interested in opting into the action. See Vondriska, 564 F. Supp. 2d at 1344; Davis v. Charoen Pokphand (USA), Inc., 303 F.Supp.2d 1272, 1277 (M.D. Ala. 2004). There is no bright-line rule for how many non-named employees need to express interest, but "[e]xamples of cases where a small number of opt-in plaintiffs satisfied the threshold of interest required for a collective action are numerous." Kubiak, 2014 WL 2625181, at *9 (collecting cases).
Here, the six named Plaintiffs—all of whom worked at Defendant's offices in Maitland or Lake Mary, Florida (see Doc. 51, ¶¶ 5-10; Doc. 124-1, ¶ 5)—request conditional certification of a "national class of analysts" that is "estimated to be well in excess of 1,000 employees." (Doc. 119, p. 4.) However, they have not provided any affidavits, consents to join, or other evidence from any non-named employee who worked outside of Defendant's Maitland or Lake Mary offices—let alone outside of the state of Florida—and thus the Court finds that they have not met their threshold burden of demonstrating interest on a national scale. See Haynes, 696 F.2d at 887.
That said, the named Plaintiffs have submitted affidavits, consents to join, and supporting deposition testimony from five non-named employees—Paul Harris (Docs. 43, 72-2, 121-7), Nathan Rudgers (Docs. 45, 72-3, 120-5, 121-6), Laura Smith (Docs. 74, 115, 120-6), Amy Fernandez (Docs. 81, 88, 120-2, 121-1), and Antionette Elkins (Docs. 93, 108, 120-1, 121-2)—who work or worked in Defendant's Maitland and Lake Mary offices and who wish to join this action (Doc.124-1, ¶ 5). When named plaintiffs fail to demonstrate national interest in their action but succeed in demonstrating a more localized interest, district courts have the discretion to conditionally certify an appropriately localized class. See Ciani v. Talk of the Town Rests., Inc., No. 8:14-cv-2197-T-33AEP, 2015 WL 226013, at * (M.D. Fla. May 27, 2015) (limiting the geographic scope of a requested "central Florida" collective action to Tampa, Florida); Wilson v. GoWaiter Franchise Holdings, LLC, 22 Wage & Hour Cas. 2d (BNA) 1834, at *7 (N.D.Ga. 2014) (narrowing the geographic scope of a conditionally certified class to a single county); Moultry v. Cemex, Inc., No. 8:07-cv-453-T-26MSS, 2007 WL 2671087, at *1 (M.D. Fla. Sept. 7, 2007) (declining to certify a national collective class, but certifying a collective class geographically limited to Tampa, Florida); Spencer v. Reg'l Acceptance Corp., No. 05-60292-CIV, 2005 WL 5501490, at *2 (S.D. Fla. Aug. 22, 2005) (declining to conditionally certify a national class, but granting conditional certification of a narrower Florida class).
The Court finds that the named Plaintiffs have successfully demonstrated actual interest in a collective action limited to Defendant's locations in Maitland and Lake Mary, Florida. Accordingly, the Court will conditionally certify a localized class if the interested employees in those areas are "similarly situated." Hipp, 252 F.3d at 1218.
At the notice stage, the "similarly situated" requirement is particularly lenient: "Plaintiffs need show only that their positions are similar, not identical, to the positions held by the putative class members." Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (citation, alterations, and internal quotation marks omitted). Courts look to "pay provisions" and "job requirements" to determine whether different employment positions are "similar."
As addressed above, the named Plaintiffs in this action assert that they worked for Defendant as claims analysts with varying titles. (See, e.g., Doc. 51, ¶ 3.) In terms of pay provisions, Plaintiffs assert that they were salaried and, despite routinely working more than forty hours per week, they were not paid overtime compensation. (Id. ¶ 16; Doc. 49-1, ¶ 5; Doc. 49-2, ¶ 5; Doc. 49-3, ¶ 5; Doc. 50-1, ¶ 5; Doc. 50-2, ¶ 5; Doc. 50-3, ¶ 5.) In terms of job requirements, Plaintiffs assert that they essentially investigated and analyzed insureds' claims and made adjudicatory recommendations to their supervisors. (See Doc. 119, p. 7; see also Doc. 49-1, ¶ 4; Doc. 49-2, ¶ 4; Doc. 49-3, ¶ 4; Doc. 50-1, ¶ 4; Doc. 50-2, ¶ 4; Doc. 50-3, ¶ 4.) Importantly though, Plaintiffs maintain that their jobs only superficially required them to exercise discretion and independent judgment; in reality, Plaintiffs used interview scripts and form letters to conduct investigations, and they used comprehensive policy and procedure manuals to analyze claims and make adjudicatory recommendations.
Like the named Plaintiffs, the five non-named employees who have expressed interest in opting into this action all worked for Defendant as salaried claims analysts. (Docs. 72-2, 72-3, 88, 108, 115.) Additionally, all assert that they routinely worked more than forty hours per week without being paid overtime compensation. (See Harris Dep., Doc. 121-7, pp. 54:24-25; Rugders Dep., Doc. 121-6, pp. 59:9-12; Smith Dep., Doc. 121-5, pp. 30:25-33:21; Fernandez Dep., Doc. 121-1, pp. 49:23-25; Elkins Dep., Doc. 121-2, pp. 38:19-21.) Most importantly, all assert that they used Defendant's canned interview scripts, form letters, and comprehensive, flowchart-like manuals to investigate and analyze claims and to make adjudicatory recommendations. (See, e.g., Harris Dep., Doc. 121-7, pp. 21:10-24:6, 24:23-25:8, 28:21-25, 31:11-33:15; Rugders Dep., Doc. 121-6, pp. 33:2-34:11, 54:10-56:13, 71:17-72:9; Fernandez Dep., Doc. 121-1, pp. 19:15-20:24, 34:14-35:18, 64:10-65:13, 86:1-91:13;Elkins Dep., Doc. 121-2, pp. 17:16-18, 41:9-44:23.)
As Plaintiffs have shown a reasonable basis for their claim that similarly situated employees who worked at Defendant's Maitland and Lake Mary offices are interested in opting into this action, the Court will conditionally certify a collective class of "Analysts"
Finally, the named Plaintiffs move for: (1) an order requiring Defendant to produce the potential class members' contact information; and (2) an order authorizing Plaintiffs to distribute a notice and a consent-to-join form to those potential members. (Doc. 119, pp. 5, 17-20); see also Dybach, 942 F.2d at 1567 (holding that courts may authorize notice to potential § 216(b) class members to further the FLSA's broad remedial purpose); Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989) (holding that courts may require defendants to produce potential § 216(b) class members' contact information). Upon consideration, the Court finds that Plaintiffs' motions are due to be granted with the following caveats.
With respect to contact-information disclosure, Plaintiffs specifically request an order "requiring Defendant to produce the names, addresses, telephone numbers and emails of all former and present Analysts as well as those who were employed within the 3 years prior to the filing of the Complaint up to trial." (Doc. 119, p. 21.) That request is both temporally and geographically overbroad. Temporally, Plaintiffs' request incorrectly presumes that the filing of their action tolled the three-year
As for the notice, Plaintiffs have provided a proposed form that requires several revisions. (See Doc. 119-1.) First, like Plaintiffs' contact-information request, their proposed notice is geographically and temporally overbroad. (See id. at 2.) The Court will permit Plaintiffs to distribute the notice and consent-to-join form to Analysts who worked for Defendant at the Maitland and Lake Mary locations "within the last three years prior to the date the [n]otice is mailed." Abdul-Rasheed, 2013 WL 5954785, at *3; see also Gutescu, 2003 WL 25586749, at *18 (concluding that notice should only be sent to potential class members who worked for the defendant "within three years from the date of mailing of the notice"). Plaintiffs should tailor the language of the notice and consent-to-join forms accordingly.
Second, Plaintiffs' proposed notice fails to adequately notify potential class members of the risks associated with opting into this action—particularly, the risk that opt-in class members may be responsible for Defendant's litigation costs if Defendant prevails. (See Doc. 119-1); see also Fed. R. Civ. P. 54(d)(1) (addressing awards of costs to prevailing parties). Before distribution, Plaintiffs must revise their proposed notice to accurately reflect the risks associated with opt-in collective actions. See Hoffman-La Roche, 493 U.S. at 171 (requiring notice to be "timely, accurate, and informative"); Ciani, 2015 WL 226013, at *5 (requiring notice to potential § 216(b) class members to address both rights and risks).
Third, Plaintiffs' proposed notice does not set an opt-in deadline. (Doc. 119-1.) In light of this action's relatively advanced stage and newly narrowed scope, the Court finds that a thirty-day opt-in deadline is appropriate here. In other words, the notice must reflect that, to opt into this action, potential class members must file a consent-to-join form on or before the thirtieth day after the date that Plaintiffs distribute the notice.
To facilitate the notification process, the Court will permit Plaintiffs to file a revised proposed notice and a revised consent-to-join form. If the Court approves of them, then it will authorize distribution—by U.S. Mail and email
On a last procedural note, because conditional certification may necessitate modification of the Court's Case Management and Scheduling Order (Doc. 113),
Accordingly, it is hereby
The crux of Plaintiffs' FLSA claims appears to be that Defendant willfully misclassified Plaintiffs as administratively exempt from the overtime provision based on the superficial appearance of discretion in their work, see 29 U.S.C. § 541.200(a)(3), when in reality Defendant knew that Plaintiffs did not fall within the administrative exemption because they were only using "skill in applying well-established techniques, procedures or specific standards described in manuals or other sources" that Defendant itself had promulgated, see 29 C.F.R. § 541.202(e).
(See, e.g., Doc. 19, p. 2 n.2.) For conditional certification purposes, the Court accepts Plaintiffs' representation and adopts their definition of the term Analysts. Defendant's factual challenges to the contours of the class (Doc. 124, pp. 3-6) are best left for the decertification stage. Kubiak, 2014 WL 2625181, at *7 ("In considering a motion to conditionally certify a class for notification purposes only in a wage and hour dispute, the Court does not review the underlying merits of the case.").
