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Caballero v. Healthtech Resources, Inc.

United States District Court, D. Arizona

February 20, 2018

Jessica Caballero, Plaintiff,
v.
Healthtech Resources, Inc., Defendant.

          ORDER

          Steven P. Logan, United States District Judge

         Before the Court is Plaintiff's Motion for Conditional Collective Action Certification and Court-Supervised Notice. (Doc. 55.) Defendant filed a Response (Doc. 56), to which Plaintiff filed a Reply. (Doc. 61.) Also pending before the Court is the Parties' Joint Motion to Extend Time to Complete the In-Person Settlement Conference. (Doc. 65.)

         I. Plaintiff's Motion for Conditional Collective Action Certification and Court-Supervised Notice

         A. Conditional Certification

         Section 207 of the Fair Labor Standards Act (“FLSA”) provides that employees be compensated at a rate of not less than one and one-half times the regular rate for any hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). Employers who fail to comply with the FLSA's overtime compensation provision “shall be liable to the employee or employees affected in the amount of their . . . unpaid overtime compensation . . . and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). An employee may bring an action to recover unpaid overtime on behalf of herself and other “similarly situated” employees. Id. Neither the FLSA nor the United States Court of Appeals for the Ninth Circuit has defined “similarly situated.” Guanzon v. Vixxo Corp., No. CV-17-01157-PHX-GMS, 2018 WL 274422, at *2 (D. Ariz. Jan. 3, 2018). Typically, district courts within the Ninth Circuit follow a two-step approach to determine whether a collective action is appropriate. Colson v. Avnet, Inc., 687 F.Supp.2d 914, 925 (D. Ariz. Jan. 27, 2010). At the first stage, courts look only to see whether a plaintiff has presented “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Id. (internal citations omitted). This standard is “fairly lenient” and typically results in conditional certification. Brown v. Pegasus Research Grp. LLC, No. CV-16-03875-PHX-GMS, 2017 WL 2444105, at *1 (D. Ariz. June 6, 2017). At the second stage, after the notification period ends and upon close of discovery, a defendant may move to decertify at which time “the court makes a more informed decision as to whether the claimants who have consented to sue are indeed ‘similarly situated.'” Alonzo v. Akal Sec., No. CV-17-00836-PHX-JJT, 2017 WL 5598227, at *2 (D. Ariz. Nov. 21, 2017) (citing Wynn v. Nat'l Broad. Co., 234 F.Supp.2d 1067, 1082 (C.D. Cal. Jan. 24, 2002)).

         Plaintiff requests conditional certification for “[a]ll individuals who worked for [Defendant], providing support and training to [Defendant's] clients in connection with the implementation of new electronic recordkeeping systems in Pennsylvania between February 20, 2014 and the present.” (Doc. 55 at 2.) In support, Plaintiff has submitted her own declaration (doc. 55-3) and the declarations of potential plaintiffs Lissa Bryan (doc. 55-4) and Charles Bloom (doc. 55-5). Plaintiff has also provided model Notice and Opt-In Consent forms for distribution should the Court grant conditional certification. (Docs. 55-1, 55-2.) In response, Defendant does not oppose conditional certification, but rather takes issue with certain provisions of Plaintiff's model Notice and Opt-In Consent forms. (Doc. 56.)

         Plaintiff has satisfied the fairly lenient standard for conditional certification. Plaintiff's First Amended Complaint (Doc. 22) and the declarations submitted in support of the present motion sufficiently allege that Plaintiff and the putative class members “were together the victims of a single decision, policy, or plan.” Colson, 687 F.Supp.2d at 925. As Plaintiff suggests, the record before the Court provides sufficient support that members of the proposed collective are similarly situated because:

individuals who provide training and support services for [Defendant's] clients in connection with the implementation of new electronic recordkeeping systems and are classified as exempt employees perform the same basic tasks, follow the same schedule, have the same compensation structure, and are subject to the same rules and policies set out by [Defendant] in their day-to-day work; these individuals are paid a set hourly rate, only for hours actually worked, and, as a result, are not paid an overtime premium for hours worked in excess of 40 a week [sic] in violation of the FLSA.

(Doc. 55 at 8.) Accordingly, the Court will grant conditional certification at this time.

         B. Court-Supervised Notice

         In her Motion for Conditional Collective Action Certification and Court-Supervised Notice, Plaintiff seeks court approval of the model Notice and Opt-In Consent Forms. (Docs. 55-1, 55-2.) The Court will address each of Defendant's specific objections (Doc. 56) in turn.

         First, Plaintiff requests the Court order Defendant to produce “the name, last known address, all known e-mail addresses, all known telephone number(s), dates worked, date of birth, and last four digits of their Social Security Number for each [collective member] within five business days of the [Court's] Order.” (Doc. 55 at 15.) Defendant objects to the provision of all information other than the names, last known physical addresses, and the dates worked by the collective members because of privacy concerns. (Doc. 56 at 2.) In her Reply, Plaintiff tailored the information to be provided by Defendant to “a list of the names, dates of employment and last known telephone numbers, addresses and e-mail addresses of members of the FLSA Collective.” (Doc. 61 at 3.) Remaining at issue then is Plaintiff's request for the e-mail addresses and telephone numbers. Because e-mail is an increasingly utilized form of communication, Defendant shall provide Plaintiff with the e-mail addresses of members of the FLSA collective. Guanzon, 2018 WL 274422, at *3. The Court finds the production of phone numbers similarly appropriate and orders Defendant to provide Plaintiff with all known telephone numbers of the FLSA collective members. Plaintiff's request that the Court order Defendant to provide the Social Security numbers of collective members in the event Notice is returned undeliverable (Doc. 61 at 4) is denied. See e.g., Russell v. Swick Mining Servs. USA Inc., No. CV-16-02887-PHX-JJT, 2017 WL 1365081, at *5 (D. Ariz. Apr. 14, 2017).

         Second, Defendant opposes Plaintiff's proposal that all collective members be given ninety days from receipt of Notice to opt-in to the present suit because doing so “will open the door to issues of when collective members ‘received' their Notices.” (Doc. 56 at 3.) The Court agrees with Defendant that Plaintiff's proposal of allowing collective members ninety days from the date of receipt may unwittingly raise issues of timeliness. For this reason, the Court orders that collective members will have ninety days from the date upon which Plaintiff's counsel mails the Notice and Opt-In Consent Forms to opt-in to the present suit. Likewise, Defendant objects to Plaintiff's proposal that “[a]ll Opt-In Consent Forms will be deemed to have been filed with the Court the date that they are stamped as received by Plaintiff's counsel or the Notice Administrator, and Plaintiff's counsel will file them electronically on the docket on a weekly basis.” (Doc. 56 at 3.) Again, to avoid the possibility of creating timeliness issues, Opt-In Consent Forms will be deemed filed with the Court only on the actual date which Plaintiff files them with the Court.

         Third, Defendant objects to Plaintiff's proposal that collective members may execute their Opt-In Consent Forms using an electronic signature. (Doc. 56 at 3.) According to Defendant, opposition of this procedure “assure[s], to the greatest extent possible, that all Consent Forms are in fact executed knowingly by the proper persons.” (Doc. 56 at 3.) The Court finds this argument unavailing and will authorize ...


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