United States District Court, N.D. Ohio, Western Division
G. CARR SR. U.S. DISTRICT JUDGE
an employment action for unpaid wages under the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq.
Perez and Nicholas Foley accuse their former
employer A Building Maintenance and Home Repair, LLC (A) of
misclassifying them as exempt employees and withholding
overtime wages in violation of state and federal fair wage
laws. (Doc. 17, ID 228, 230). Further, they allege
“[u]pon information and belief” that defendants
“applied the same pay practices and policies” to
their coworkers. (Id. at 224).
is plaintiffs' motion for conditional class certification
pursuant to 29 U.S.C. § 216(b) (Doc. 18), which
defendants oppose. (Doc. 20). For the reasons that follow, I
grant the motion, though I modify the plaintiffs'
which codefendant Nick Carpenter is the sole proprietor and
member, offers handyman services to property owners. (Doc.
20-1, ID 356).
worked for A on and off between 2014 and 2016, and Foley
worked for A between 2013 and 2017. (Doc. 17, ID 217-18). As
a “general labor/service technician[s], ” they
responded to calls from customers looking to have work done
on their homes or businesses, “including but not
limited to installing appliances, plumbing, remodeling,
electrical maintenance, landscap[ing], snow removal, and
other miscellaneous general labor.” (Id. at
Perez and Foley “primarily performed non-exempt job
duties” (Doc. 17, ID 215), they contend A improperly
classified them as exempt employees, paid them on a salaried
basis, and reduced their weekly salaries based on the number
of hours they worked, in violation of FLSA regulations.
See 29 C.F.R. § 541.602(a) (“Subject to
the exceptions provided in paragraph (b) . . . an exempt
employee must receive the full salary for any week in which
the employee performs any work without regard to the number
of days or hours worked.”). Defendants also failed to
pay plaintiffs overtime for hours worked over forty in a
given work week, and regulalry interrupted their meal periods
with “requests to perform job duties.”
(Id. at 219).
to recover their unpaid wages, Perez and Foley filed the
instant suit and now move to conditionally certify their FLSA
claims “as a collective action so that potential . . .
plaintiffs can be notified of the suit's existence and of
their right to participate.” Wlotkowski v. Mich.
Bell Tel. Co., 267 F.R.D. 213, 217 (E.D. Mich. 2010).
oppose the motion. While they concede that the required
showing is minimal, A and Carpenter insist plaintiffs have
not demonstrated a colorable basis for their claim that
defendants have subjected others to a common pattern of FLSA
in 1938, the FLSA established a minimum wage and overtime
compensation for each hour worked in excess of 40 hours in
each workweek.” In re Amazon.com, Inc. Fulfillment
Center FLSA Wage and Hour Lit., 852 F.3d 601, 608 (6th
Cir. 2017) (citation omitted). An employee can vindicate his
right to overtime pay under the Act by asserting a claim
against his employer on “behalf of himself . . . and
other employees similarly situated.” 29 U.S.C. §
216(b). Such a collective action differs from a traditional
Rule 23 class action in two significant ways.
whereas Rule 23 creates a regime where class members are
either bound by the litigation or must opt out of a
suit to avoid becoming parties bound by any judgment, the
FLSA requires employees to opt in to the
action.” Taylor v. Pilot Corp., 697 Fed.Appx.
854, 857 (6th Cir. 2017). “Second, whereas Rule 23
outlines a relatively detailed class-certification process,
the FLSA says little about how collective actions should
work.” Id. The Act, for instance, “does
not define ‘similarly situated' and neither has the
Sixth Circuit.” Myers v. Marietta Mem. Hosp.,
201 F.Supp.3d 884, 890 (S.D. Ohio 2016).
notably, ” the district courts have developed a
solution, employing a two-phase inquiry to determine whether
to certify a collective action. Id.
one, known as conditional certification, “takes place
at the beginning of discovery.” Comer v. Wal-Mart
Stores, Inc., 454 F.3d 544, 546 (6th Cir.
2006). A plaintiff who gains conditional certification is
“permitted to solicit opt-in notices, under court
supervision, from current and former employees.”
Myers, 201 F.Supp.3d at 890 (citation omitted).
Phase two, known as final certification, “occurs after
all of the opt-in forms have been received and discovery has
concluded.” Comer, 454 F.3d at 546 (internal
quotation marks omitted).
conditional certification phase, I determine, as a
preliminary matter, whether the named plaintiffs “have
shown that the employees to be notified are, in fact,
‘similarly situated.'” Id. The Sixth
Circuit has detailed “three non-exhaustive factors . .
. relevant” to this inquiry: “(1) the factual and
employment settings of the individual plaintiffs; (2) the
different defenses to which the plaintiffs may be subject on
an individual basis; and (3) the degree of fairness and
procedural impact of certifying the action.” Monroe
v FTS USA, LLC, 860 F.3d 389, 397 (6th Cir. 2017)
(quoting O'Brien v. Ed Donnelly Enters., Inc.,
575 F.3d 567, 584 (6th Cir. 2009) (brackets omitted)
abrogated on other grounds by Campbell-Ewald v.
Gomez, --- U.S. ---, 136 S.Ct. 663 (2016)).
these factors, “it is clear that plaintiffs are
similarly situated when they suffer from a single,
FLSA-violating policy, and when proof of that policy proves a
violation as to all the plaintiffs.” O'Brien,
supra, 575 F.3d at 585. But “showing a
‘unified policy' of violations” is not a hard
and fast requirement. Monroe, 860 F.3d at 398
(citation and brackets omitted).
may also be similarly situated if “their claims are
unified by common theories of defendants' statutory
violations, even if the proofs of these theories are
inevitably individualized and distinct.” Id.
(citation and brackets omitted). This standard is “less
stringent” than the Rule 20(a) joinder requirement that
all claims “arise out of the same action or occurrence,
” and Rule 23(b)(3)'s requirement that common
questions predominate the action. O'Brien,
supra, 575 F.3d at 584 (citation omitted).
terms of proofs, I consider “whether potential
plaintiffs were identified; whether affidavits of potential
plaintiffs were submitted; and whether evidence of a
widespread plan was submitted.” Myers, 201
F.Supp.3d at 890 (citation and ellipsis omitted). Reviewing
this evidence, I am mindful that Perez and Foley need only
make a “modest factual showing” of substantial
similarity. Comer, supra, 454 F.3d at 547. Moreover,
I do not test plaintiffs' evidence by
“consider[ing] the merits of the claims, resolv[ing]
factual disputes, or evaluat[ing] credibility.”
Myers, supra, 201 F.Supp.3d at 890.
rather, only whether plaintiffs demonstrate “at least a
colorable basis for their claim that a class of
‘similarly situated' plaintiffs exists.”
Olivo v. GMAC Mortgage Corp., 374 F.Supp.2d 545, 548
(E.D. Mich. 2004). This “fairly lenient standard . . .
typically results in ‘conditional certification' of
a representative class.” Comer, 454 F.3d at
547 (citation omitted).
the case reaches the final certification stage, I
“reexamine whether the employees actually meet the
similarly-situated requirement” with the benefit of
more discovery, Taylor, 697 Fed.Appx. at 857-58,
under a “stricter standard, ” Myers,
supra, 201 F.Supp.3d at 890. If I then find similarity
lacking, I “can always remove employees from the
‘class' [I] ‘certified' at stage
one.” Taylor, supra, 697 Fed.Appx. at 858.
and Foley move to certify a class of “[a]ll current and
former service technicians, general laborers, or other
employees of Defendants who performed general labor and
worked over 40 hours in any workweek, beginning three years
immediately preceding the filing of th[e] Complaint” in
the present action. (Doc. 18, ID 237).
prove these employees are “unified” by a
“common . . . statutory violation, ”
O'Brien, supra, 575 F.3d at 584, plaintiffs
offer the following: (1) personal declarations from Perez and
Foley and former A employee Jason Havens; (2) a copy of the
A Building Maintenance and Home Repair employee handbook;
and (3) a series of ...