United States District Court, D. Arizona
Douglas L. Rayes United States District Judge
Gabriel Scales brings this action against Defendants
Information Strategy Design Incorporated, Steven Losefky, and
Michele Losefsky (collectively “ISD”) to recover
allegedly unpaid overtime wages under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 207. At
issue is Scales' Motion for Conditional Certification and
Court-Supervised Notice of Pending Collective Action (Doc.
31), in which he seeks to conditionally certify similarly
situated workers as a class for purposes of pursuing a
collective FLSA action under 29 U.S.C. § 216(b). The
motion is fully briefed (Docs. 36, 39), and neither party
requested oral argument. For the following reasons,
Scales' motion is granted, but for a narrower class than
January 2015 to mid-October 2017, Scales worked as a Help
Desk Technician for ISD, an Arizona corporation that provides
IT support and solutions to ISD clients. (Doc. 31-1 ¶
1.) Scales' primary job duties included “providing
support in response to help desk inquiries, ”
“monitoring client's system alerts and
notifications, ” “providing recovery support
solutions, ” “providing basic technical support
at the network IT level, ” and “providing basic
IT remote access solution implementation and support.”
(Doc. 31-1 ¶ 7.)
addition to his normal, on-site hours, Scales periodically
was expected to perform on-call work. (¶¶ 8, 15.)
When on call, Scales was expected to be available to respond
to clients' IT needs outside of normal business hours
from 6:00am to 7:00am and 5:00pm to 10:00pm on Monday through
Friday, 7:00am to 7:00pm on Saturday, and 9:00am to 5:00pm on
Sunday. (¶¶ 17-22.) As a result, Scales routinely
worked 80-90 hours per week while assigned on-call duty.
(¶ 34.) He also claims that he routinely worked more
than 40 hours per week, sometimes by as much as 20 hours,
even when not on call. (¶ 33.) Scales, however, was
compensated on a salaried basis and therefore was not paid
the one and one-half times pay premium required by the FLSA
for overtime hours worked by non-exempt employees.
(¶¶ 10, 12-13); 29 U.S.C. § 207(a)(1).
Desk Technicians performed on-call work in rotations, with
each technician spending an entire week on-call. (Doc. 31-1
¶ 15.) During his employment with ISD, Scales shared the
on-call rotation with approximately ten other employees.
(¶ 23.) When Scales was not assigned on-call duties,
another similarly situated employee would be. (¶¶
24-26.) Scales claims that he personally witnessed other
technicians performing similar tasks and working more than 40
hours per week without receiving overtime compensation.
(¶¶ 27-29.) He believes that this pay discrepancy
is the result of ISD's misclassification of Help Desk
Technicians as exempt employees and ISD's standard
on-call policy. (¶¶ 16, 30-33.) Scales therefore
seeks to pursue this case as a collective action and to
conditionally certify the following class:
All persons who worked as computer help desk technicians (or
in other positions with similar job titles or job duties),
and/or persons who performed on-call duties for Defendants,
and/or persons who worked in excess of 40 hours in a given
workweek but were not paid overtime, at any time from three
years prior to the filing of this Complaint through the entry
of judgment (the “Collective Members”).
(Doc. 31 at 3.)
FLSA prohibits covered employers from employing any employees
“for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess
of the hours above specified at a rate not less than one and
one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). “Any
employer who violates the provisions of . . . section 207 . .
. shall be liable to the employee or employees affected in
the amount of . . . their unpaid overtime
compensation[.]” Id. § 216(b). A
collective action to recover these damages may be brought
“against any employer . . . by any one or more
employees for and in behalf of himself or themselves and
other employees similarly situated.” Id.
Employees not named in the complaint who wish to join the
action must give their consent in writing to the court in
which the action is brought. Id.
216(b) does not define ‘similarly situated,' and
the Ninth Circuit has not construed the term.”
Colson v. Avnet, Inc., 687 F.Supp.2d 914, 925 (D.
Ariz. 2010). Although courts in other circuits have taken
different approaches in this determination, “district
courts within the Ninth Circuit generally follow the
two-tiered or two-step approach for making a collective
action determination.” Id.; see also
Villarreal v. Caremark LLC, No. Cv-14-00652-PHX-DJH,
2014 WL 4247730, at *3 (D. Ariz. Aug. 21, 2014) (“The
majority of courts, including those within the District of
Arizona, have adopted the two-tiered approach in deciding
whether to grant FLSA collection action status.”
(internal quotations and alterations omitted)). Under this
the court determines, on an ad hoc case-by-case basis,
whether plaintiffs are similarly situated. This requires the
court to first make an initial ‘notice stage'
determination of whether plaintiffs are similarly situated.
At this first stage, the court requires nothing more than
substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan.
If a plaintiff can survive this hurdle, the district court
will conditionally certify the proposed class and the lawsuit
will proceed to a period of notification, which will permit
the potential class members to opt-into the lawsuit.
Once the notification period ends, the Court moves on to the
second step of the certification process. At the second step,
in response to a motion to decertify the class filed by the
defendant, the court makes yet another determination whether
the proposed class members are similarly situated; this time,
however, the ...