ORDER & OPINION
MICHAEL R. BARRETT, District Judge.
This matter is before the Court upon Plaintiffs' Motion for Conditional Certification. (Doc. 18). Defendants filed a Memorandum in Opposition (Doc. 24) and Plaintiffs filed a Reply (Doc. 26). Defendants also filed a Supplemental Memorandum in Opposition (Doc. 31), to which Plaintiffs filed a Response (Doc. 32). Plaintiffs have filed a Notice of Supplemental Authority (Doc. 33), to which Defendants filed a Response (Doc. 34). Defendants, likewise, have filed a Notice of Supplemental Authority (Doc. 35), to which Plaintiffs filed a Response (Doc. 36).
Plaintiffs have filed a complaint alleging that they and other similarly situated Area Managers were misclassified as exempt by Defendants and denied the payment of overtime required by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a). (Doc. 2).
Defendants Burlington Coat Factory Direct Corporation, Burlington Coat Factory Warehouse Corporation, Burlington Coat Factory Investment Holding, Inc., and Burlington Coat Factory, Holdings, Inc. employed Plaintiffs Karen Susan Engel and Jennifer M. Jones as Area Managers until the position was eliminated in June of 2011. (Doc. 2, at 5-6). Until June of 2011, Burlington employed between two and six Area Managers per store, depending on volume. (Doc. 18-1, at 5). Burlington prepared and distributed standardized job descriptions for all of its positions, including the Area Manager position. (Id. at 6). The job description for Area Manager included the duties of hiring and training staff, supervising other employees, implementing corporate marketing initiatives, maintaining inventory, engaging in customer service, and preparing merchandise displays. (Id. at 7; Doc. 24, at 12). Plaintiffs allege that their actual duties largely involved the same duties as hourly associates - stocking merchandise, maintaining the sales floor, and providing customer service - and that managerial duties were limited. (Doc. 18-1, at 7). Plaintiffs' Complaint alleges that Area Managers often worked in excess of forty hours per week, but received no overtime because they were wrongly classified as exempt employees. (Doc. 2, at 5-7).
During settlement discussions in July 2012, the parties entered into a Tolling Agreement which stopped the running of the statute of limitations for a 76-day period between May 7, 2012 and July 22, 2012. (Doc. 18-1, at 2).
Pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), Plaintiffs move for conditional certification of the following group of employees:
All former Area Managers employed at a Burlington Coat Factory retail store (except for retail stores located in California and Georgia) at any time from [ date 3 years less 76 days from the date of issuance of a decision ] until June 11, 2011 when the position was eliminated.
Plaintiffs also request that the Court approve the form and content of the proposed Notice of Collective Action Overtime Pay Lawsuit and Consent. Plaintiffs further request that the Court order Defendants to provide Plaintiffs' counsel with the names, last known addresses, and telephone numbers of the individuals within the proposed group of employees.
In their Notice of Supplemental Authority (Doc. 33), Plaintiffs bring to the Court's attention the decision in Goodman v. Burlington Coat Factory Warehouse, No. 11-CV-4395, 2012 U.S. Dist. LEXIS 166910 (D. N.J. Nov. 20, 2012). The district court conditionally certified a nationwide unit of all current and former Assistant Store Managers ("ASMs") employed by Burlington Coat Factory. Id. at *27. This is a position one rung above the Area Manager position. The court in Goodman found that the named plaintiff made a "modest factual showing' of a factual nexus between the manner in which Burlington's alleged policy affected him and the manner in which it affected other Burlington ASMs." Id. at *23. Plaintiffs assert that Goodman supports conditional certification of Area Managers, as Plaintiffs have provided evidence of a common pay practice and common job description among all Area Managers, as well as testimony from two plaintiffs, a former Assistant Manager, and two opt-in plaintiffs indicating that the majority of the Area Managers' time was spent performing nonexempt work. (Doc. 33, at 2-3).
The Fair Labor Standards Act provides a private cause of action against an employer "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).
Similarly situated persons are permitted to "opt into" the suit, which is called a "collective action." Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). This is distinguished from the opt-out approach utilized in class actions under Fed.R.Civ.P. 23. Id. The district court may use its discretion to authorize notification of similarly situated employees to allow them to opt into the lawsuit. Id. (citing Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)).
In suits filed under 29 U.S.C. § 216(b), courts typically use a two-phase inquiry to examine whether the proposed co-plaintiffs are "similarly situated" for the purposes of the statute's requirements. Id. The first phase occurs at the beginning of discovery, and employs a fairly lenient standard that results in conditional certification of a representative class. Id. at 547 (quoting Morisky v. Public Serv. Elec & Gas Co., 111 F.Supp.2d 493, 497 (D. N.J. 2000)). The second phase occurs following discovery, and employs a ...