United States District Court, D. Arizona
P. Logan, United States District Judge
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.)
Plaintiff's Motion for Conditional Collective Action
Certification and Court-Supervised Notice
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)).
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.
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.
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.
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).
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.
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