United States District Court, S.D. Ohio, Eastern Division
SCOTT HONAKER, On behalf of himself and those similarly situated, Plaintiff,
WRIGHT BROS. PIZZA, INC., et al., Defendants.
Deavers Magistrate Judge.
OPINION & ORDER
ALGENON L. MARBLEY CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Plaintiffs' unopposed
Motion to Conditionally Certify an FLSA Collective Action and
to Authorize Notice (“Motion to Conditionally
Certify”). (ECF No. 10). For the reasons set forth
below, Plaintiffs' Motion to Conditionally Certify is
Scott and Rhonda Honaker worked as Wright Bros. Pizza
delivery drivers. (ECF No. 10 at 3-4). They filed this action
on behalf of themselves and similarly situated employees
consisting of delivery drivers at at least five Wright Bros.
Pizza locations in Ohio. (Id.) According to
Plaintiffs, Defendants' reimbursement policy was
inadequate and violated the Fair Labor Standards Act
(“FLSA”) because it did not cover all of
Plaintiffs' driving expenses, who are paid at or close to
minimum wage. (Id. at 4). Specifically, they argue
that Defendants “neither tracked and paid for their
delivery drivers' actual expenses, nor reimbursed their
drivers at the IRS rate” pursuant to 29 C.F.R. §
531.35 and the DOL Handbook § 30c15(a). (Id. at
4-5). In addition, Plaintiffs allege Defendants paid delivery
drivers less than minimum wage in violation of FLSA by
counting some of their tips to make up the difference between
their hourly wages and minimum wage. (Id. at 6-7).
commenced this collective action against Defendants on
November 27, 2018, alleging that they violated the Fair Labor
Standards Act (“FLSA”), the Ohio Constitution,
Article II, Section 34a, the Ohio Minimum Fair Wage Standards
Act, Ohio Revised Code Section 4113.15, and Ohio Revised Code
Section 2307.60. (ECF No. 1). On January 11, 2019, Plaintiffs
filed their Motion to Conditionally Certify. (ECF No. 10). On
November 18, 2019, Defendants filed a Notice of
Non-Opposition to Plaintiffs' Motion to Conditionally
Certify and Send Notice and attached the Parties' joint
proposed notice form. (ECF No. 22; ECF No. 22 Ex. 1).
may certify an FLSA collective action brought “by any
one or more employees for and in behalf of… themselves
and other employees similarly situated.” 29 U.S.C.
§ 216(b). Similarly situated employees are permitted to
“opt into” the collective action. Comer v.
Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir.
2006). The lead plaintiff bears the burden to show that the
proposed class members are similarly situated to the lead
plaintiff. O'Brien v. Ed Donnelly Enters., Inc.,
575 F.3d 567, 584 (6th Cir. 2009), abrogated on other
grounds by Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663,
669 (2016). Plaintiffs seeking to certify a collective action
under the FLSA face a lower burden than plaintiffs seeking
class certification under Federal Rule of Civil Procedure 23.
Id. District courts conduct a two-phase inquiry to
determine whether plaintiffs are similarly situated:
conditional and final certification. Frye v. Baptist
Mem'l Hosp., Inc., 495 Fed.Appx. 669, 671 (6th Cir.
conditional-certification phase, conducted at the beginning
of the discovery process, named plaintiffs need only make a
“modest factual showing” that they are similarly
situated to proposed class members. Waggoner v. U.S.
Bancorp, 110 F.Supp.3d 759, 764 (N.D. Ohio 2015)
(quoting Comer, 454 F.3d at 547). The standard at
the first step is “fairly lenient . . . and typically
results in ‘conditional certification' of a
representative class.” Comer, 454 F.3d at 547
(quoting Morisky v. Pub. Serv. Elec. & Gas Co.,
111 F.Supp.2d 493, 497 (D.N.J. 2000)). Courts generally
consider factors such as “employment settings,
individual defenses, and the fairness and procedural impact
of certification.” Frye, 495 Fed.Appx. at 672
(citing O'Brien, 575 F.3d at 584). Plaintiffs
are similarly situated “when they suffer from a single,
FLSA-violating policy, and when proof of that policy or of
conduct in conformity with that policy proves a violation as
to all the plaintiffs.” O'Brien, 575 F.3d
at 585. Showing a “unified policy” of violations
is not required. Id. at 584. The named plaintiff
“need only show that his position is similar, not
identical, to the positions held by the putative class
members.” Lewis v. Huntington Nat'l Bank,
789 F.Supp.2d 863, 867-68 (S.D. Ohio 2011) (alteration
omitted); see also Comer, 454 F.3d at 546-57.
stage, a court “does not generally consider the merits
of the claims, resolve factual disputes, or evaluate
credibility.” Waggoner, 110 F.Supp.3d at 765
(citing Swigart v. Fifth Third Bank, 276 F.R.D. 210,
214 (S.D. Ohio 2011)). In determining conditional
certification, courts have considered “whether
potential plaintiffs were identified; whether affidavits of
potential plaintiffs were submitted; and whether evidence of
a widespread . . . plan was submitted.” Castillo v.
Morales, Inc., 302 F.R.D. 480, 486 (S.D. Ohio 2014)
(quoting H & R Block, Ltd. v. Housden, 186
F.R.D. 399, 400 (E.D. Tex. 1999)). If conditional
certification is granted, “plaintiffs are permitted to
solicit opt-in notices, under court supervision, from current
and former employees.” Cornell v. World Wide Bus.
Servs. Corp., No. 2:14-CV-27, 2015 WL 6662919, at *1
(S.D. Ohio Nov. 2, 2015).
second stage, the final certification phase, conducted after
the conclusion of discovery, courts “examine more
closely the question of whether particular members of the
class are, in fact, similarly situated.”
Comer, 454 F.3d at 547. At this stage, the court has
much more information on which to base its decision of
whether the proposed plaintiffs are similarly situated and,
“as a result, it employs a stricter standard.”
Id. (alteration, quotation marks, and citation