United States District Court, D. Maine
ORDER ON MOTION FOR CONDITIONAL CERTIFICATION AND
PROVISION OF NOTICE UNDER 29 U.S.C. § 216(B)
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Fair Labor Standards Act (FLSA) and Maine wage and hour law
case, the named plaintiff moves for conditional certification
of her FLSA claim as a collective action. The Court grants
the motion because the plaintiff has made a sufficient
factual showing that she and other employees suffered from a
common unlawful plan, despite the fact that the plaintiff has
not identified other interested potential class members. For
purposes of conditional certification and notice only, the
Court designates the plaintiff's earliest employment date
as the start date of the proposed class period. The Court
reserves ultimate judgment on the issue of equitable tolling.
August 24, 2015, Bunthoeun Perez filed a class and collective
action complaint against Shucks Maine Lobster LLC
(“Shucks Lobster”) and its owner, John Hathaway;
Ideal Global Solutions LLC (“IGS”) and its
principal, Senghap Roeun; and Casco Temp Agency LLC
(“Casco Temp”) and its principal SoLang Ung.
Class and Collective Action Compl. (ECF No. 1).
Shucks Lobster and John Hathaway filed an answer on October
15, 2015, Answer (ECF No. 5), and Casco Temp filed
its answer on November 3, 2015. Answer (ECF No. 7).
Ms. Perez was unable to serve Mr. Ung with process and
therefore voluntarily dismissed him as a party without
prejudice. Notice of Dismissal (ECF No. 20). Ms.
Perez successfully served IGS and its principal, Mr. Roeun,
but both failed to answer. On December 9, 2015, Ms. Perez
moved for entry of default against IGS and Mr. Roeun.
Mot. for Entry of Default (ECF Nos. 16, 17). The
Clerk of Court granted the motions for entry of default on
December 10, 2015. Order Granting Mot. for Entry of
Default (ECF No. 23).
January 11, 2016, Magistrate Judge Rich held a telephone
conference to address a proposed scheduling order. R. of
Hr'g and Order Re: Scheduling and Status (ECF No.
32). Casco Temp failed to appear. Id. at 2. The same
day, the Magistrate Judge issued an order requiring Casco
Temp to show cause why the Court should not enter default
against it. Order to Show Cause (ECF No. 33). Casco
Temp failed to respond, and the Magistrate Judge ordered
Casco Temp in default on January 27, 2016. Order
Defaulting Def. (ECF No. 34).
April 18, 2016, Ms. Perez filed a consent motion for leave to
file an amended complaint against Shucks Lobster and its
owner, John Hathaway (“the Shucks Defendants”).
Consent Mot. for Leave to Amend Compl. (ECF No. 38).
The following day, the Magistrate Judge granted Ms.
Perez' motion without objection. Order
Granting Mot. for Leave to File Am. Compl. (ECF No.
39). Ms. Perez filed her Amended Complaint on April 19, 2016.
Am. Compl. (ECF No. 40). On April 29, 2016, Ms.
Perez filed the instant motion for conditional certification
of a class under 29 U.S.C. § 216(b). Mot. for
Conditional Certification and Provision of Notice Under 29
U.S.C. § 216(b) (ECF No. 41) (Pl.'s
Mot.). The Shucks Defendants filed an opposition on May
19, 2016. Opp'n to Mot. for Conditional Certification
and Provision of Notice Under 29 U.S.C. § 216(b)
(ECF No. 43) (Defs.' Opp'n). Ms. Perez
replied on June 2, 2016. Reply in Supp. of Mot. for
Conditional Certification and Provision of Notice Under 29
U.S.C. § 216(b) (ECF No. 44) (Pl.'s
Lobster is a seafood processing facility in Richmond, Maine.
Am. Compl. ¶¶ 18-19. Ms. Perez worked as a
lobster picker at the Shucks Lobster facility for
approximately three months beginning in May 2012 and another
three weeks in the summer of 2015. Id. ¶ 31;
Pl.'s Mot. Attach 1 Decl. of Buntheoun
Perez ¶¶ 4-5 (ECF No. 41) (Perez
Decl.). In her capacity as a lobster picker, Ms. Perez
shucked cooked lobster meat from its shell. Perez
Decl. ¶ 3; Am. Compl. ¶ 30. Shucks
Lobster employed Ms. Perez and other lobster pickers through
various temporary agencies (“temp agencies”),
including Casco Temp and IGS, Am. Compl. ¶ 20,
but according to Ms. Perez, Mr. Hathaway held ultimate
control over the lobster picker's operations, hours, and
pay rates. Id. ¶¶ 6-7, 23-25, 34. Ms.
Perez asserts that the different temp agencies maintained
substantially identical employee rosters and employment
policies. Am. Compl. ¶ 5.
Perez states that Shucks Lobster paid her and the other
lobster pickers according to a “piece rate” based
solely on the weight of the lobster they processed. Am.
Compl. ¶ 33. However, Ms. Perez asserts that the
piece rate did not account for other compensable activities
that she and the other lobster pickers performed throughout
the workday. Id. ¶ 56. For instance, the
lobster pickers typically had to arrive by 6 A.M. but often
had to wait for shipments of lobsters and linger while the
lobsters cooked. Id. ¶¶ 53-54. In
addition, the lobster pickers were required to pass through a
“clean room” every time the pickers entered or
left the room where the shucking occurred, including for
breaks, lunch, or any other reason. Id. ¶ 55.
The “clean room” process took between five and
ten minutes. Perez Decl. ¶ 12. In total, Mr.
Perez alleges that she worked between eight and nine hours
per day, six days per week. Perez Decl. ¶ 14;
Am. Compl. ¶ 58. However, neither she nor the
other lobster pickers received overtime pay. Am.
Compl. ¶ 60. Ms. Perez contends that in its
contracts with the temp agencies, Shucks Lobster specified
that the lobster pickers were not entitled to overtime.
Id. ¶ 59.
Perez estimates that she worked with between ten and twenty
lobster pickers each day. Perez Decl. ¶ 8. She
further estimates that, over the course of her employment at
Shucks Lobsters, she saw between thirty and forty different
people working as lobster pickers. Id. ¶ 9. She
alleges that all of the lobster pickers shared similar job
duties, and that their pay rates and employment circumstances
were substantially the same. Pl.'s Mot. at 3.
Ms. Perez claims that she spoke with other lobster pickers
about the lawsuit but that they have not yet joined the case
because they fear retaliation. Perez Decl. ¶
15. She attests that many of the lobster pickers are seasonal
immigrants who speak Spanish or Khmer, and, according to Ms.
Perez, they are unaware of their rights to overtime and to
protection from retaliation. Id. ¶ 16. She
alleges that the Shucks Defendants did not post notice of
federal wage provisions, in violation of 29 C.F.R. §
516.4. Perez Decl. ¶ 5; Pl.'s Mot.
THE PARTIES' POSITIONS
The Plaintiff's Motion
Perez alleges that the FLSA, 29 U.S.C. § 216(b),
entitles her and the other lobster pickers to overtime for
the all hours they worked in excess of forty hours per week,
as well as “gap time” for the time they engaged
in compensable activities without pay. Pl.'s
Mot. at 1. She requests the Court conditionally certify
the lobster pickers as a collective action and approve an
“appropriate notice to be both sent to all potential
opt-in members, handed to all current employees, and
prominently posted” at Shucks Lobster's facility.
FLSA Conditional Certification
begin, Ms. Perez lays out the standard for conditional
certification pursuant to § 216(b). Id. at 5.
She explains that certification of collective actions under
the FLSA occurs in two parts. Id. First, the Court
determines whether to “conditionally certify” the
action and provide notice to potential class members.
Id. This occurs early in the case and is based on
the pleadings and any affidavits. Id. The standard
at this stage is “fairly lenient.” Id.
(quoting Saunders v. Getchell Agency, No.
1:13-cv-00244-JAW, 2014 WL 580153, at *5 (D. Me. Feb. 12,
2014)). The named plaintiff must show a reasonable basis for
the claim that there are other similarly situated employees
who might participate in the case. Id. Second, upon
the conclusion of discovery, the Court may reassess the
“conditional certification to determine whether it is
appropriate for the action to continue as a collective
Perez argues that she satisfies the “lenient”
standard for conditional certification. Id. at 6.
She defines the class she seeks to conditionally certify as
“[a]ll current and former employees of Shucks Lobster
and/or any agent hired by Shucks Lobster since May 2012 who
worked shucking cooked lobsters at Shucks Maine's
facility in Richmond, Maine and who worked, when all waiting
time is included, more than forty (40) hours per week.”
Id. at 8. According to Ms. Perez, all of the
potential class members worked as lobster pickers in the same
location under nearly identical circumstances. Id.
Moreover, the Shucks Defendants failed to pay all of the
lobster pickers for the time they spent in similar
compensable activities, such as waiting for lobster to
arrive, waiting while the lobster cooked, and passing through
the “clean room” as they entered and exited the
shucking room. Id. They also failed to pay all of
the lobster pickers overtime when they worked more than forty
hours per week. Id. Accordingly, Ms. Perez argues
that these similarities satisfy the lenient standard of
conditional certification. Id.
Perez also offers possible reasons why other lobster pickers
have not joined her lawsuit. First, the Shucks Defendants
engaged different temp agencies over the years to
“create a buffer between [the Shucks Defendants] and
the potential class members.” Id. at 7. This
hiring practice effectively dispersed the lobster pickers
across multiple agencies and has made it difficult for Ms.
Perez to access potential class members. Id.
Additionally, Ms. Perez asserts that other lobster pickers
are hesitant to join the lawsuit because they are not aware
of their rights to overtime and to protection from
retaliation. Id. According to Ms. Perez, this lack
of awareness stems, in part, from the fact that many of the
lobster pickers are seasonal immigrant laborers who lack
knowledge of labor and employment law, and from the fact that
the Shucks Defendants failed to provide proper notice of
employee rights under the FLSA. Id. Ms. Perez is
confident, however, “that the proposed notice will
serve the dual purpose of informing all potential class
members of both this lawsuit and their rights under the
Perez requests the Court to approve the draft notice and
opt-in forms that she attached to her motion. Id. at
8-9. She also requests that the Court order the Shucks
Defendants to prominently display the notice in the shucking
and the break rooms at the Richmond facility and to
distribute paper copies to all current lobster pickers.
Id. at 8. Additionally, she urges the Court to order
the Shucks Defendants to provide her with a computer readable
data file containing the names and last known addresses of
all potential class members as defined in the Court's
certification order. Id.
Tolling the Statute of Limitations
Perez explains that, unlike Rule 23, § 216(b) does not
toll the claims of opt-in plaintiffs until they actually file
their opt-in forms with the Court. Id. at 9.
However, Ms. Perez argues that in this case, the Court should
toll the FLSA's statute of limitations because the Shucks
Defendants failed to provide the lobster pickers with proper
notice of their rights under the FLSA, in violation of 29
C.F.R. § 516.4. Id. at 5-6 (citing Cruz v.
Maypa, 773 F.3d 138, 146-47 (4th Cir. 2014)). In
addition, the Shucks Defendants “agreed with the
various temp agencies that [the lobster pickers]…were
not entitled to overtime, thereby actively hiding the fact of
their violation” from their employees. Id. at
6. Thus, Ms. Perez urges the Court to toll the statute of
limitations especially because many of the potential class
members are immigrant workers who are less likely to be aware
of their rights. Id.
FLSA Conditional Certification
Shucks Defendants largely agree with Ms. Perez's
recitation of the standard for conditional certification,
with one important difference. The Shucks Defendants point
out that although the standard is “fairly lenient,
” Ms. Perez must present more than mere allegations
that other employees suffered from a common unlawful policy
or plan. Defs.' Opp'n at 3 (citing
Levecque v. Argo Marketing Group, Inc., No.
2:14-cv-00218-JAW, 2015 WL 3672647, at *7 (D. Me. June 12,
2015)). That is, Ms. Perez has “the burden of showing a
reasonable basis for [her] claim that there are other
similarly situated employees. Id. at 4 (quoting
Johnson v. VCG Holding Corp., 802 F.Supp.2d 227, 234