United States District Court, D. Maine
ORDER ON PLAINTIFFS' MOTION FOR CONDITIONAL CERTIFICATION OF FLSA COLLECTIVE ACTION AND TO FACILITATE COURT-APPROVED NOTICE
JOHN A. WOODCOCK, Jr., District Judge.
In this Fair Labor Standards Act (FLSA), Maine Employment Practices Act, and Maine Minimum Wage and Overtime Law claim, the Plaintiffs, current and former employees of Argo Marketing Group, Inc. (Argo), assert claims against Argo, against Argo's owner and chief executive officer, Jason Levesque, and against Argo's chief operations officer, Daniel Molloy. Plaintiffs ask the Court to conditionally certify as a collective action their FLSA claim for unpaid wages and overtime and to facilitate court-approved notice to all other similarly situated employees. The Court grants their motion. As certification is conditional, the Defendants may move the Court to decertify the collective action at the close of discovery.
A. Procedural History
On May 27, 2014, Hannah LeVecque, Beth Dazet, Nicholas Passafiume, Celeste Wing, and Matthew Violette filed a complaint against Argo Marketing Group, Inc., Jason Levesque, and Daniel Molloy. Class and Collective Action Compl. (ECF No. 1). On July 28, 2014, Argo filed an answer and counterclaim. Answer and Countercl. of Def. Argo Mktg. Grp., Inc. (ECF No. 11). On July 30, 2014, Argo filed an amended answer. Am. Answer of Def. Argo Mktg. Grp., Inc. (ECF No. 16). On August 18, 2014, the Plaintiffs filed an amended complaint. First Am. Class and Collective Action Compl. and Demand for Jury Trial (ECF No. 17) ( First Am. Compl. ). On September 2, 2014, Argo filed an answer to the First Amended Complaint. Answer of Def. Argo Mktg. Grp., Inc. to First Am. Compl. (ECF No. 21).
On November 18, 2014, Matthew Violette and Wayne C. Smith consented to join a collective action lawsuit regarding claims under the FLSA, pursuant to 29 U.S.C. § 216(b). Consent to Join Fed. Wage and Hour Lawsuit Pursuant to  U.S.C. § 216(b) (ECF No. 31) ( Violette Consent ); Consent to Join Fed. Wage and Hour Lawsuit Pursuant to  U.S.C. § 216(b) (ECF No. 32) ( Smith Consent ). One month later, on December 18, 2014, Plaintiffs filed a motion for conditional certification of their FLSA collective action and to facilitate court-approved notice. Pls.' Mot. for Conditional Certification of FLSA Collective Action and to Facilitate Ct.-Approved Notice (ECF No. 33) ( Pls.' Mot. ). The Defendants responded in opposition on January 8, 2015. Defs.' Resp. to Pls.' Mot. for Conditional Certification of FLSA Collective Action and to Facilitate Ct.-Approved Notice (ECF No. 34) ( Defs.' Opp'n ). Plaintiffs replied to the Defendants' opposition on January 22, 2015. Pl[s.'] Reply to Defs.' Opp'n to Pls.' Mot. for Conditional Certification of FLSA Collective Action (ECF No. 37) ( Pls.' Reply ). Finally, on April 6, 2015, Lorraine D. Larrabee consented to join a collective action lawsuit under the FLSA, as did Hector L. Mendoza on April 7, 2015, Denise Moody on April 22, 2015, Laurie M. Anderson on June 2, 2015, and Alicia Jenkins on June 3, 2015. Consent to Join Fed. Wage and Hour Lawsuit Pursuant to  U.S.C. § 216(b) (ECF No. 45) ( Larrabee Consent ); Consent to Join Fed. Wage and Hour Lawsuit Pursuant to  U.S.C. § 216(b) (ECF No. 46) ( Mendoza Consent ); Consent to Join Fed. Wage and Hour Lawsuit Pursuant to  U.S.C. § 216(b) (ECF No. 49) ( Moody Consent ); Consent to Join Fed. Wage and Hour Lawsuit Pursuant to  U.S.C. § 216(b) (ECF No. 51) ( Anderson Consent ); Consent to Join Fed. Wage and Hour Lawsuit Pursuant to  U.S.C. § 216(b) (ECF No. 52) ( Jenkins Consent ).
B. Count I of Plaintiffs' First Amended Complaint
Plaintiffs allege that the Defendants failed to pay them and the collective class overtime wages in accordance with the FLSA. First Am. Compl. ¶ 105. Specifically, they say they were not paid for the "period between logging into Shift Planner and download of information from VACD or Atmosphere software, the two 10-minute rest breaks, and bathroom breaks." Id. ¶ 73. They also state they are "similarly situated" within the meaning of the FLSA because they: (1) all work or worked for Argo as customer service representatives and/or as salesmen; (2) all worked at Argo call centers in Maine; (3) were not paid for their time as alleged in paragraph 73 of their First Amended Complaint; (4) all worked in excess of 40 hours per week when time from paragraph 73 is included as "hours worked"; and (5) were all denied overtime pay by Argo. Id. ¶ 75.
Plaintiffs contend that Defendants' actions "have been willful and intentional. Defendants have not made a good faith effort to comply with the FLSA with respect to their compensation of Plaintiffs and the FLSA collective." Id. ¶ 106. They seek "unpaid overtime wages for the three years directly preceding the date this Complaint is filed and an equal amount in the form of liquidated damages, as well as reasonable attorneys' fees and costs of the action, including interest, " in accordance with 29 U.S.C. § 216(b). Id. ¶ 107.
They also assert that the "Defendants employ call center employees to sell and service various products offered by third party vendors such as weight loss, energy, and sexual enhancement products." Id. ¶ 25. Argo is a Maine corporation with its principal office in Lewiston. Id. ¶ 12. Jason Levesque is the Chief Executive Officer and sole owner of Argo. Id. ¶ 14. Daniel Molloy is the Chief Operating Officer of Argo. Id. Together, they "direct the day-to-day operations of Argo, including wage and disciplinary policies." Id.
II. THE PARTIES' POSITIONS
A. Plaintiffs' Motion
Plaintiffs assert that unlike a typical class action under Rule 23, where the filing of the complaint tolls the statute of limitations, there is a two-year statute of limitations period under the FLSA (or three years if the action by Defendants is willful) and, therefore, it is imperative that notice be mailed to potential class members as soon as possible to allow them the opportunity to opt-in. Pls.' Mot. at 1-2 (citing 29 U.S.C. §§ 255(a), 256). They ask that the Court enter the following order:
(1) defining part of this action on a conditional basis as a collective action under 29 U.S.C. § 216(b) on behalf of a class of individuals (the "FLSA Class") defined as: "All persons who are employed or have been employed by Defendant Argo as customer service representatives and/or sales persons based in the State of Maine at any time since three years prior to the filing of the Complaint";
(2) appointing the five named Plaintiffs as class representatives;
(3) appointing Johnson, Webbert & Young, LLP as lead class counsel;
(4) directing Defendants to produce to Plaintiffs in electronic form the following information for each current and former customer service representative and sales person in the FLSA Class: the individual's name, address, alternate address (if any), email address, telephone number and alternate telephone numbers (if any), in Defendants' possession, within 14 days of the Court's decision;
(5) approving the proposed notice and consent form, attached hereto as Exhibit 1, authorizing Plaintiffs and their counsel to send it to all FLSA Class members and to post the forms online, with links and identifying information, immediately upon receipt of the Court's decision;
(6) requiring Defendants to post the proposed notice and consent form within seven days of the Court's decision at Defendants' call and service centers in Portland, Auburn,  and Pittsfield, Maine (and in any other location in Maine where Defendants operate a call or service center) in a conspicuous place frequented by the customer service representatives and sales persons;
(7) requiring Defendants to send, within seven days of the Court's decision, the proposed notice and consent form electronically (via email or other similar internal means) to all current customer service representatives and sales persons; and
(8) requiring Defendants to refrain from engaging in communications or activities that may improperly influence, mislead or discourage putative plaintiffs from joining this action.
Id. at 2-4.
Plaintiffs begin by summarizing their attached affidavits. Id. at 4-7. They then direct the Court's attention to Judge Hornby's decision in Prescott v. Prudential Insurance Co., 729 F.Supp.2d 357 (D. Me. 2010), where he discussed and applied the so-called "two stage" approach for certification of class actions. Pls.' Mot. at 8. As to the first stage, which addresses whether notice should be sent to potential members, Plaintiffs assert that their burden is low, and they must only present "a modest factual showing that she and other employees, with similar but not necessarily identical jobs, suffered from a common unlawful policy or plan.'" Id. (quoting Prescott, 729 F.Supp.2d at 364). In addition, Plaintiffs observe that "under this fairly lenient standard, the initial stage analysis typically results in conditional certification of a collective action.'" Id. at 9 (quoting Prescott, 729 F.Supp.2d at 364) (internal quotation marks omitted).
According to Plaintiffs, they satisfy this first stage. Id. They explain:
The job duties of the named Plaintiffs, opt-in Plaintiff, and the putative class members were essentially the same as one another regardless of the call centers they worked at or whether they were attempting to sell products or encourage continuation of a product contract. Plaintiffs' experience and observations over many years and at two of the three Maine call centers demonstrate that their job duties were essentially the same as those of all Argo customer service representatives and sales persons based in Maine, at least during the FLSA Class period.
Id. at 9-10. Furthermore, Plaintiffs say that while the proposed class may not have worked the exact same hours, "most if not all" of the proposed class "regularly worked more than 40 hours per week when one counts as time worked the time it took to log into the VACD or Atmosphere software after logging into the Shift Planner software, bathroom breaks, and/or the two 15-minute rest periods." Id. at 10. They also claim that the Defendants "paid its customer service representatives and sales persons in the same or similar ways." Id.
B. Defendants' Opposition
Defendants counter that Plaintiffs' request is "legally insufficient" because it is based on "a mere four (4) declarations accompanying their Motion." Defs.' Opp'n at 1. In addition, they argue that Plaintiffs ignore the fact that "when an employer has lawful written policies and training aimed at prohibiting off-the-clock work, such as Argo's policies here, ... it is well-settled that prospective FLSA representative plaintiffs must demonstrate their employer had a common practice not to follow them." Id. (emphasis in original) (internal citation omitted). That is, they must demonstrate the violations are "tied to a single decision, policy or plan that binds the putative class and applies across all employer locations." Id. at 2 (citing Hickson v. United States Postal Serv., No. 5:09-CV-83, 2010 WL 3835887, at *6 (E.D. Tex. July 22, 2010), adopted, 2010 WL 3835885 (E.D. Tex. Sept. 28, 2010); Andersen v. Wells Fargo Fin., Inc., No. 4:11-cv-00085-JAJ-TJS, 2012 U.S. Dist. LEXIS 23175, at *19-20 (S.D. Iowa Feb. 6, 2012)) (emphasis in original). Defendants claim that Plaintiffs have not proved such a single decision, policy or plan on the part of Argo, and cite Ms. Douglas' declaration (paragraph 6) in support of their position. Id. Furthermore, they argue that most of Plaintiffs' declarations relate to the Portland location, none of the Plaintiffs worked in Lewiston (the largest location and headquarters) and even if Argo staff "did not enforce its policies against off-the-clock' work and accurate time keeping in Portland, contrary to written policy and training (which they did not), occasional policy violations by individual managers at Argo's smallest location cannot establish a policy to violate a policy.'" Id. at 2-3 (quoting Thompson v. Speedway SuperAmerica LLC, No. 08-CV-1107-PJS-RLE, 2009 WL 130069, at *2 (D. Minn. Jan. 20, 2009); Richardson v. Wells Fargo Bank, N.A., No. 4:11-cv-00738, 2012 WL 334038, at *4 (S.D. Tex. Feb. 2, 2012)).
In Defendants' view, it is of particular importance that "all Argo Declarants confirm that Argo has written and communicated policies (via manuals, training, and on-boarding processes) which... require all time to be recorded accurately to ensure employees are properly compensated and performing in accordance with efficiency and customer-driven goals." Id. at 4. This includes that they must "be paid for, all time worked, and expressly prohibit off-the-clock work or unapproved time." Id.
Turning to the legal standard they say should apply here, Defendants argue that Plaintiffs have not demonstrated that members of the proposed class are "similarly situated, " which they once again contend required a showing that they were victims of a single decision, policy or plan. Id. at 5. According to Defendants, "Plaintiffs have failed to show that Argo had a policy to violate its lawful written policies against off-the-clock work and non-payment of wages and, for this reason alone, the request for conditional certification must be denied." Id. at 6.
Defendants then expand on why they take issue with Plaintiffs' declarations; namely, because "their experiences were unique and in no way representative of the experiences of Company employees in Lewiston or working from home." Id. at 6-7 (citing Richardson, 2012 WL 334038, at *3-6). In other words, Defendants argue that even if Plaintiffs demonstrated they worked off-the-clock in Portland, this would not "establish liability at other Argo locations." Id. at 7. Defendants also accuse Plaintiffs of "offering the Court a circumscribed view ask[ing] the Court to shoehorn all [FLSA] claims into a single notice despite differing facts, elements, and defenses, and the fact that combining them would result in extraordinary inefficiencies in the litigation." Id. at 8.
Finally, Defendants direct the Court's attention to recent Supreme Court caselaw- Comcast Corp. v. Behrend, 569 U.S. ___, 133 S.Ct. 1426 (2013) and RBS Citizens, N.A. v. Ross, 133 S.Ct. 1722 (2013)-which they say "confirm that the Courts must undertake a rigorous analysis of class certification motions." Defs.' Opp'n at 8-9. According to Defendants, these cases stand for the proposition that the Court must "scrutinize" Plaintiffs' measurement of damages based on a class-wide theory, and consider whether individual damage calculations would ultimately "overwhelm questions common to the class." Id. at 9 (internal quotation marks and citation omitted). Defendants also argue that conditional class certification is improper because individualized assessments must be conducted as to Argo's constructive or actual knowledge of any alleged off-the-clock violations by each Plaintiff. Id. (citing 29 C.F.R. § 785.11). In other words, Defendants believe that "each Plaintiff's claim will require individualized inquiries about their own timetracking actions and whether they abided by the Company's policies related to login and time designation, " making conditional certification ill-advised. Id. at 10.
C. Plaintiffs' Reply
Plaintiffs begin by clarifying that they are only seeking conditional certification on Count I of their First Amended Complaint relating to their FLSA claim for unpaid wages and overtime and, therefore, no "individualized assessment" needs to be made. Pls.' Reply at 1 n.1. They also accuse Defendants of applying the incorrect legal standard for conditional certification, arguing that Defendants request "this Court to resolve factual disputes and seek to convert the conditional certification decision into a full-blown trial on the merits." Id. at 1. In addition, citing Trezvant v. Fidelity Employer Services Corp., 434 F.Supp.2d 40, 42 (D. Mass. 2006), Plaintiffs contend that, at this stage, the Court need not make any findings of fact regarding conflicting evidence presented by each party or make any credibility determinations. Pls.' Reply at 2. Furthermore, Plaintiffs argue that the Supreme Court's decision in Comcast is inapposite to conditional certification cases because Comcast came under the more rigorous Rule 23 standard. Id.
Next, they contend they have "met their modest' burden to show that they and other Argo customer service representatives and salespersons in Maine were subjected to a common unlawful policy or plan." Id. This includes that (1) employees were not paid for two rest breaks and this time was not counted for overtime purposes until December 2013; (2) employees were not compensated for bathroom breaks and this time was not counted for overtime purposes; and (3) employees were not compensated for "lag time" during the log-in process and this time was not counted for overtime purposes. Id. at 2-3. Plaintiffs also counter that, contrary to Defendants' position, "Argo does not have lawful written policies related to the off-the-clock work alleged here." Id. at 3. In other words, the provisions of Argo's policies and procedures manual does not address compensation "for rest breaks, bathroom breaks, and lag time between log-ins." Id.
Plaintiffs also argue that much of the substance in the Defendants' declarations do not dispute the assertions made by Plaintiffs and "to the extent there is a dispute about the length of the unpaid lag time between the two log-ins, resolution of that factual dispute is improper on conditional certification." Id. at 6 (citing Burch v. Qwest Commc'ns Int'l, Inc., 500 F.Supp.2d 1181, 1189 (D. Minn. 2007)). For example, Plaintiffs observe that Mr. Molloy's declaration establishes that he has reviewed Ms. LeVecque's log-in records so "there is no uncertainty or administrative difficulty in calculating the amount of unpaid lag time between the two log-ins, " and cumulatively, this time is not de minimis. Id. at 7.
Finally, addressing the Defendants' contention that their request is improper because they have not presented any workers from the Lewiston location, Plaintiffs assert that "case law is clear that FLSA plaintiffs need not submit supporting declarations from every discrete employment location in order to prevail on a motion [f]or conditional certification." Id. at 8 (citing Johnson v. VCG Holding Corp., 802 F.Supp.2d 227 (D. Me. 2011); Burch, 500 F.Supp.2d at 1189). Here, Plaintiffs say, they have presented declarations from two out of three Argo locations in Maine, including "unrefuted evidence" that all three locations "operated in essentially the same manner and were subject to centralized timekeeping policies." Id. at 8-9. ...