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Scales v. Information Strategy Design Incorporated

United States District Court, D. Arizona

December 21, 2018

Gabriel Scales, Plaintiff,
Information Strategy Design Incorporated, et al., Defendants.


          Douglas L. Rayes United States District Judge

         Plaintiff 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 requested.

         I. Background

         From 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.)

         In 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).

         Help 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.)

         II. Legal Standard

         The 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.

         “Section 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 approach,

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 ...

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