DAVID C. BRAMLETTE, III, District Judge.
This cause is before the Court on the plaintiff's Motion for Conditional Certification, for Approval and Distribution of Notice, and for Disclosure of Contact Information (docket entry 11). Having carefully reviewed the motion, memoranda, and applicable statutory and case law, and being otherwise fully informed in the premises, the Court finds and orders as follows:
Plaintiff Renza Birdie ("Birdie"), on behalf of herself and others similarly situated, commenced this Fair Labor Standards Act ("FLSA") collective action against defendants Brandi's Hope Community Services, LLC ("Brandi's Hope") and Danny Cowart ("Cowart") (collectively, "Defendants") on February 24, 2017. Brandi's Hope is a Mississippi limited liability corporation operating residential care facilities for disabled adults. Cowart is the company's owner and chief executive officer.
Birdie was employed by Brandi's Hope from November of 2014 to May of 2015 as a Direct Support Professional ("DSP"). Within that role, Birdie was responsible for providing assistance and care to disabled adults living in group homes operated by Brandi's Hope. Because these group homes were staffed at all times, Direct Support Professionals were often required to stay with their residents overnight. Birdie claims that she frequently worked the night shift, which ran seventeen hours from 3:00 p.m. to 8:00 a.m. During these shifts, Birdie alleges that she was required to "clock out" between 10:00 p.m. and 6:00 a.m. but remain at the facility throughout the night. Through the company's "sleep time" policy, Birdie claims that the defendants violated the FLSA by requiring the plaintiff and other similarly situated Direct Support Professionals to work in excess of forty hours a week without overtime compensation.
Birdie now moves for conditional certification pursuant to 29 U.S.C. § 216(b), requesting that court-authorized notice of the collective action be sent to "[a]ll Direct Support Professionals, or Direct Care Professionals, employed by defendants Brandi's Hope Community Services, LLC, and Danny Cowart (hereinafter collectively, "Defendant") since February 24, 2014." Doc. 11. While the defendants do not oppose conditional certification, they do request that the scope of the proposed class and accompanying disclosures be limited.
The Fair Labor Standards Act requires covered employers to compensate nonexempt employees who work more than forty hours per week at overtime rates.
When considering whether to certify a collective action under the FLSA, the two-step analysis set forth in
During the notice phase, the Court decides, based on the pleadings and affidavits, whether notice of the action should be given to potential class members.
Applying this "fairly lenient standard," the Court finds that conditional certification is appropriate at this stage. Through her pleadings and accompanying declaration, Birdie maintains that the defendants required her and other Direct Support Professionals working the night shift to clock out for eight hours, during which time they were required to remain at the workplace. Doc. 11-7, ¶ 9. Birdie also contends that it was standard practice for Direct Support Professionals to care for customers more than forty hours each week without receiving overtime pay.
Having determined that conditional certification is warranted, the Court next turns to address the scope of the prospective class. Defendants request that the class be limited to "all Direct Support Professionals or Direct Care Professionals employed by [Brandi's Hope] and [Cowart] since February 24, 2014, who were required to stay on the employer's premises overnight." Doc. 18, p. 2. Acknowledging that only those Direct Support Professionals staying with clients overnight were subject to the defendants' "sleep time" policy, Birdie has indicated that she is amenable to modifying her proposed class definition.
Though it is somewhat unclear as to whether any Direct Support Professionals actually stayed overnight with clients in locations other than the residential group homes, the pleadings support that all Direct Support Professionals who stayed overnight with patients were subject to the same pay structure and policy.
This modified class definition excludes those Direct Support Professionals working only day shifts and should alleviate the defendants' concerns about the inclusion of class members not subject to the overnight policy.
To facilitate the dissemination of notice to the class, Birdie has requested that the Court order the defendants to disclose the names, last known addresses, email addresses, employee identification numbers, dates of employment, dates of birth, and last four digits of social security numbers of prospective plaintiffs. "Discovery of this sort of information is a routine component of court-facilitated notice in FLSA collective actions."
The defendants have not specified what, if any, information should be excluded from Birdie's request, but they have requested that "only the names and contact information" of potential class members be disclosed. Doc. 18, p. 8. Based on this request, the Court surmises that the defendants object to the dissemination of employee identification numbers, dates of birth, and social security numbers of prospective plaintiffs insofar as such information is not generally recognized as "contact information." Birdie argues that the disclosure of this additional information will be helpful in locating those individuals whose notice is returned undeliverable. But the Court finds nothing to suggest that sending notice by mail and email will be inadequate, or that the disclosure of such sensitive information is necessary. In the interest of privacy, the Court shall only require that the defendants provide the names, dates of employment, last known addresses, phone numbers, and email addresses of prospective plaintiffs at this time.
Attached to Birdie's motion for conditional certification are proposed notice and consent forms. Birdie requests that the Court authorize Plaintiff's counsel to (1) issue the proposed notice and consent forms by mail and email to prospective plaintiffs, (2) remail notices that are returned undeliverable for those plaintiffs for whom better addresses may be located, and (3) mail and email reminder notices 30 days after the initial notice is mailed. Birdie also asks the Court to approve a 90-day opt-in period for potential plaintiffs. The defendants have not submitted a proposed notice, nor do they object to the form, content, or method of distribution of the notice proposed by Birdie.
The FLSA requires that notice to potential plaintiffs be "accurate and timely," giving potential class members the chance to make informed decisions about whether to participate.
Having reviewed the plaintiff's notice and finding no objection from the defendants, the Court concludes that Birdie's notice is sufficiently accurate and informative to advise the putative class of its rights with respect to the pending litigation. The Court shall therefore approve the proposed notice and consent forms, with the exception that the plaintiff shall modify the forms to reflect the conditionally certified class set forth above.
Accordingly,
IT IS HEREBY ORDERED that Birdie's Motion for Conditional Certification is GRANTED, and that a collective class consisting of all Direct Support Professionals, or Direct Care Professionals, employed by Defendants Brandi's Hope Community Services, LLC, and Danny Cowart who stayed with a client overnight at any time since February 24, 2014, is conditionally certified;
IT IS FURTHER ORDERED that Defendants shall provide Plaintiff's counsel with the names, last known addresses, email addresses, phone numbers, and dates of employment of all potential members of the collective class, in electronic form, within fourteen (14) days of the date of entry of this Order;
IT IS FURTHER ORDERED that the Plaintiff submit to the Court, no later than fourteen (14) days from the date of entry of this Order, a proposed notice to potential class members, revised in accordance with the class conditionally certified in this Order;
IT IS FURTHER ORDERED that within fourteen (14) days of Court approval of the Notice, the Plaintiff shall send a copy of the approved Notice and Consent forms to potential class members;
IT IS FURTHER ORDERED that potential class members shall submit their consent forms opting-in to this lawsuit no later than ninety (90) days from the date Notice is mailed;
IT IS FURTHER ORDERED that Plaintiff's counsel is authorized to send a reminder postcard by mail and email to those potential class members who have not responded thirty (30) days after the initial notice is mailed;
SO ORDERED.