NOEL L. HILLMAN, District Judge.
Before the Court is plaintiffs' motion for conditional class certification pursuant to the Fair Labor Standards Act ("FLSA"). Also before the Court is defendants' motion for reconsideration of the Court's Order granting an extension of time to file a reply brief. For reasons explained below, plaintiffs' motion for conditional class certification will be denied without prejudice, and defendants' motion for reconsideration will be denied.
Plaintiffs were former employees of defendant E-Mortgage Management, LLC ("E-Mortgage"). E-Mortgage is a mortgage lending and brokerage company that operates approximately eight offices in at least four states, including New Jersey, Pennsylvania, Maine and Delaware. There is no dispute that E-Mortgage is an employer within the meaning of 29 U.S.C. § 203(d).
Plaintiffs allege that defendants violated FLSA Section 206(a) which requires employers to pay employees the current minimum wage
Plaintiffs bring this action on behalf of themselves and others "similarly situated" to remedy alleged violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and therefore this Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction).
Plaintiffs filed their motion for conditional class certification on May 18, 2011. According to Local Rule 78.1, the motion day for the hearing was set for June 20, 2011, which date was entered by the Clerk of Court on the Court's official docket. See L.Civ.R. 78.1. The deadline for opposition briefs is fourteen days before the motion day, or June 6, 2011, and the deadline for reply briefs is seven days before the motion day, or June 13, 2011.
Realizing the error with regard to the opposition deadline, on June 20, 2011, plaintiffs filed a motion for extension of time to file a reply. The extension was necessary because the defendants did not file their opposition until June 13, 2011, which was the original deadline for the reply under the Local Rules. The Court granted plaintiffs' motion for extension on June 29, 2011. Defendants filed a motion for reconsideration because the Order granting the extension was entered prior to the date their opposition brief to the motion for extension was due, on July 5, 2011.
This Court has discretion to extend a deadline after the time has expired upon a showing of good cause if the party failed to act because of excusable neglect.
Accordingly, defendants' motion for reconsideration will be denied.
Plaintiffs allege that defendants violated the FLSA Sections 206(a)
The term "similarly situated" is not defined in the FLSA.
Although the standard applied at this stage is fairly lenient, courts in the Third Circuit are divided on the amount of evidence needed to establish whether plaintiff is similarly situated to the putative class.
The "factual nexus" standard will be applied in this case for the initial stage.
In the second stage, or "reconsideration stage," the court "makes a second determination after discovery is largely complete and the case is ready for trial."
Initially, plaintiffs alleged that they worked in excess of 51 hours per workweek based on their bi-weekly paystubs which stated "Paid Time — Available 112.000 hours." During the initial scheduling conference with the Court, which occurred after plaintiffs had filed the instant motion, it was suggested that the 112 hours did not refer to biweekly hours worked but instead was a notation that referred to the amount of time the employee accrued for "paid time off" such as vacation or sick time. This explanation was confirmed in the certification submitted by John Miriello, Director of Human Resources for E-Mortgage and later admitted by plaintiff Henry Holesapple in his declaration. Nevertheless, plaintiffs still maintain that they worked in excess of 40 hours per workweek.
Plaintiffs Henry Holesapple and Anthony Nastasi submitted declarations in support of their motion for conditional class certification. In their response, defendants attacked the declarations as inadequate. In reply, plaintiffs submitted revised declarations from Holesapple and Nastasi, and an additional declaration from plaintiff Mark Emory Washington who later joined in this lawsuit.
All three plaintiffs state that they worked at E-Mortgage's Hainesport, New Jersey office. Plaintiff Holesapple states that he was formerly employed by E-Mortgage as a loan officer from April 9, 2009 until December 30, 2010. Holesapple states that although the employee handbook states that the normal work schedule is Monday through Friday from 8:30 a.m. to 5:30 a.m., that he was directed by his supervisor, Jeff Krasner, to work from 8:00 a.m. to 8:00 p.m. Mondays through Fridays. Holesapple states that he regularly worked between 48 and 60 hours on weekdays and another 5 to 10 hours on weekends. He states that his supervisor required him to take files home to work on in the evenings and weekends.
Holesapple states that he observed other employees in the Hainesport office work similar hours, in excess of a 40 hour workweek, including plaintiffs Anthony Nastasi and Mark Washington, as well as Musa Branham, and not receive overtime pay. Holesapple also states that all loan officers were paid on a 100% commission basis so that if he did not earn any commissions during a pay period, he would receive no pay at all.
Plaintiff Anthony Nastasi states in his declaration that he was formerly employed by E-Mortgage as a loan officer from April 9, 2009 until December 30, 2010. He states that E-Mortgage had a policy requiring plaintiffs and all customer service representatives to work at least 53 hours or more per week, and that they were paid on a 100% commission basis. Natasi states that he was told that office hours were 10:00 a.m. to 8:00 p.m. Mondays through Thursday, and 10:00 a.m. until work was completed on Fridays but no earlier than 3:00 p.m. He states that his work hours exceeded 50 hours weekly. He states that he usually came in by 10:30 a.m. and stayed until 8:00 p.m., and worked 2-3 hours daily at home, including weekends. Nastasi states that he and the other customer service representatives were not paid for the hours that they actually worked, and were not paid for overtime hours. Nastasi states that the commissions he received did not amount to minimum wages ($7.25 per hour).
Plaintiff Mark Emory Washington states in his declaration that he was formerly employed by E-Mortgage as a loan officer from July 2, 2008 until August 2009. In August 2009, he was given the title of office manager.
As officer manager, Washington observed the work hours of all loan officers and states that all of them, including himself, on average worked in excess of 50 hours weekly.
Defendants submitted 14 declarations to rebut the original declarations of the plaintiffs. Supervisors at the Hainesport office, Brian Krasner (also a defendant) and Jeff Krasner, state in their declarations that there has never been a policy requiring employees to work over 40 hours a week, regardless of how an employee is paid. The other 12 declarations are from current E-Mortgage employees who state that they have never been subjected to a company policy requiring them to work over 40 hours in a workweek. Four of the declarations are from employees from the Hainesport, New Jersey office, the same office where plaintiffs worked, four are from employees located in the Haddon Township, New Jersey office, three are from employees in the Lancaster, Pennsylvania office, and three are from the Lebanon, Pennsylvania office.
With regard to the employees located in offices from Haddon Township, Lancaster, and Lebanon, plaintiffs have not provided any evidence that they have any personal knowledge of the hours worked by employees in those offices and whether those employees work in excess of 40 hours per week without receiving overtime compensation. With regard to the employees in the Hainesport office, the declarations of current employees Musa Branham and George McCartney both state that they have not worked over 40 hours a week or on weekends, and by their experience, there has never been a policy in place requiring them to work over 40 hours per week or on weekends. Mr. Branham's declaration directly contradicts Holesapple's declaration in which he states that he observed Mr. Branham working in excess of 40 hours weekly, and that he told Holesapple he worked more than 40 hours per week.
The declarations submitted by defendants indicate that even if plaintiffs worked in excess of 40 hours per week without receiving overtime pay, their situation is not similar to other employees, or potential class members.
Plaintiffs also declare that they were paid on a 100% commission basis and if they did not earn commissions, they would receive no pay at all in violation of the FLSA requiring employers to pay at least the minimum wage. Washington states that he observed that other loan officers did not receive any compensation because they failed to close out any loans. Washington's declaration, which was not part of plaintiffs' original motion, does not state who the other loan officers were that received no pay or, generally, when it occurred. Nastasi states his commissions did not amount to minimum wages, but does not state that he has knowledge of, or observed, other loan officers who did not receive minimum wages. Accordingly, as with the excess hours claim, plaintiffs have not provided the factual nexus needed between their claim of E-Mortgage's failure to pay them minimum wage and the potential claims of the other class members. At best, plaintiffs have only established that all loan officers received 100% commission pay, a statement defendants do not dispute.
The Declaration of Mark Washington, submitted without the opportunity for fair reply, does provide some support for a factual nexus regarding a minium wage claim since he states that he observed other loan officers who did not receive any compensation at all because they failed to close out loans. Washington's Declaration is more notable, however, for what it fails to say. He does not state, for example, whether he saw the other loan officer's paychecks while office manager of the Hainesport office, nor does he provide the names of officers who did not receive any pay, when those pay periods were, or estimate the number of loan officers affected. These vague, non-specific, and conclusory allegations from a person presumably in a position to know fail to establish the required factual nexus even applying a lenient standard. As such, plaintiffs' motion will be denied without prejudice.
For the foregoing reasons, plaintiffs' motion for conditional class certification will be denied without prejudice.