United States District Court, D. Arizona
ORDER MOTION FOR COLLECTIVE ACTION CERTIFICATION
H. RUSSEL HOLLAND, District Judge.
The named plaintiffs move for conditional collective action certification, for court authorized notice to potential opt-in plaintiffs, and for expedited discovery. This motion is opposed. Plaintiff has filed a timely reply to defendant's opposition, and defendant moves for leave to file a sur-reply. Oral argument was not requested and is not deemed necessary.
Plaintiffs are Jeffery Schiller, Tyrice Roderick, Michael Franz, Chris Washington, Brian Poirier, David Teran, and Daniel Keys. Defendant is Rite of Passage, Inc.
Plaintiffs are former or current "coach counselors" employed at defendant's Canyon State Academy location in Queen Creek, Arizona. More specifically, plaintiffs were or are group living coach counselors,  who are "[p]rimarily responsible for the supervision and mentoring of students to ensure the Right of Passage normative peer culture program is consistently implemented."
Group living coach counselors worked either the "A" shift or the "B" shift. The hours for the "A" shift were 6 a.m. to 10 p.m. Sunday to Tuesday and 6 a.m. to 2:30 p.m. on Wednesday. The hours for the "B" shift were Wednesday 2 p.m. to 10:00 p.m. and Thursday to Saturday 6 or 8 a.m. to 10 p.m. Group living coach counselors were "paid by the hour... as... non-exempt employee[s]. For hours over 40... worked in any given workweek, ... [they] received one and one-half [their] normal rate of pay."
Group living coach counselors were required to stay overnight one night per shift. Their job description expressly states that the position of group living coach counselor is "required to remain on site various nights during the assigned shift to provide overnight coverage in the event of an emergency. During these instances, the employee may be awakened from sleep to assist on-duty ROP employees with an AWOL situation or other site security issue."
Schiller, Washington, and Teran aver that on the nights they were require to stay over night, they were to clock out at 10 p.m., could leave the grounds if they wanted between 10 p.m. and midnight, but "were required to check in with the night staff assigned to our respective cottages by midnight" and then clock back in at 6 a.m. the following morning. In reality, plaintiffs sometimes clocked out at 10 p.m. on the nights they were required to stay over and sometimes clocked out later. For example, Keys testified that he would clock at out 10 p.m. on the nights he stayed over,  but Roderick testified that he fairly frequently clocked out later than 10 p.m. As for what they did between the hours of 10 p.m. and midnight on the nights they were required to stay over, Keys, Roderick, and Teran testified that they did not leave Canyon State Academy. Schiller testified that he would usually leave and Franz testified that he would sometimes leave.
Defendant had its living group coach counselors sign a "coach counselor payroll declaration" upon hire. That declaration provided that the employee
understand[s] and accept[s] that my employment is considered an alternative shift of 48 continuous hours with appropriate breaks and sleep time. I agree that each 48 hour shift consists of three (3) 24-hours days and one (1) 7-hour day.... Twenty four hour days included 14 hours of work time, two (2) hours of uncompensated break time and an unpaid eight (8) hours of sleep time. The one 7-hour day includes six (6) hours of work time and one (1) hour of uncompensated break time. Work related interruptions during sleep time will be compensated. If work related interruptions prevent five (5) hours of continu ous sleep, [the employee] will be compensated for the entire day.
Rick Wright, defendant's Human Resources Director, avers that defendant's policy "does not provide for any break time' during a coach counselor's designated sleep-time period, such as a break between 10:00 p.m. and midnight during an on-duty sleep time period of 10:00 p.m. and 6:00 a.m." However, in a write-up given to Schiller, it was noted that "[a]ll staff staying overnight (on duty) [are] required to be back on campus by midnight."
In their second amended complaint, plaintiffs assert a FLSA overtime claim on behalf of themselves and similarly-situated individuals, claiming that they should have been paid for their sleep time. More specifically, plaintiffs contend that they should have been paid for the hours between midnight and 6 a.m. when they were required to be on the Canyon State Academy site. Schiller, Washington and Teran all aver that they were not paid for the hours between 10 p.m. and 6 a.m. on the nights that they were required to stay at Canyon State Academy. Defendant contends that the "continuous shift" exemption in 29 C.F.R. § 785.22 applies to the group living coach counselors and thus that it was generally not required to pay the group living coach counselors for their sleep time.
The named plaintiffs now move for conditional certification of a collective action, for court-authorized notice to potential opt-in ...