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Perez v. A Building Maintenance and Home Repair, LLC

United States District Court, N.D. Ohio, Western Division

April 30, 2018

Byron Perez, et al., Plaintiffs,
v.
A Building Maintenance and Home Repair, LLC, et al. Defendants.

          ORDER

          JAMES G. CARR SR. U.S. DISTRICT JUDGE

         This is an employment action for unpaid wages under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.

         Byron Perez[1] 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).

         Pending 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' proposed class.

         Background

         A, of which codefendant Nick Carpenter is the sole proprietor and member, offers handyman services to property owners. (Doc. 20-1, ID 356).

         Perez 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 214-15).

         Although 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).

         Seeking 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).

         Defendants 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 violations.

         Standard of Review

         “Enacted 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.

         “First, 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).

         “But notably, ” the district courts have developed a solution, employing a two-phase inquiry to determine whether to certify a collective action. Id.

         Phase 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).

         At the 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)).

         Under 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).

         Employees 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).

         In 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.

         I ask, 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).

         Once 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.

         Discussion

         Perez 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.[2] (Doc. 18, ID 237).

         To 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 ...


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