Smith v. Akal Security Incorp.

          ORDER

          Honorable Susan M. Brnovich, United States District Judge.

         Pending before the Court is Plaintiffs' Motion to Proceed Conditionally as a Collective Action. (Doc. 22, “Mot.”). The Court has now considered the Motion, Defendant's Response (Doc. 23, “Resp.”), and Plaintiffs' Reply (Doc. 24, “Reply”) along with relevant case law. The Court elects to resolve the Motion without oral argument. See L.R. Civ 7.2(f).

         BACKGROUND

         Forty named plaintiffs (“Plaintiffs”) bring this action against their former employer, Defendant Akal Security, Inc. (Doc. 1). Plaintiffs worked for Defendant, a government contractor, as Air Security Officers (“ASOs”), a position later renamed Aviation Detention Officers (“ADOs”), for various times between April 2014 and November 2017.^[1] Plaintiffs were all hourly employees, responsible for the supervision of deportees while they were in Defendant's custody and control, including during their transfer onto an aircraft for deportation and during the trip to the deportees' home country. After transferring deportees to their home countries, Plaintiffs returned with the rest of the flight crew to the United States. Plaintiffs were compensated for their time on the return flight, but pursuant to Defendant's policy, Plaintiffs were automatically docked one hour of pay for a meal break on each return flight that lasted more than ninety minutes.

         Plaintiffs commenced this action on April 11, 2018 alleging violations of the overtime provisions of the Fair Labor Standards Act (“FLSA”). (Doc. 1). Plaintiffs allege that during the return flights in which they were docked one hour of pay, they were not given bona fide meal breaks within the meaning of the FLSA, and to the extent that the unpaid meal breaks were hours worked in excess of forty hours per week, Plaintiffs allege that they are entitled to overtime pay for those hours. Plaintiffs now seek conditional certification of a proposed collective action group defined as “all former [ADOs] or [ASOs], or those who had substantially the same duties and responsibilities as Plaintiffs, who were employed by Defendant between April 11, 2015 and November 30, 2017, were based in Mesa, Arizona, and had one-hour lunch breaks deducted from their pay, pursuant to Defendant's Meal-Period Deduction and Timekeeping Policies.” Plaintiffs also ask the Court to (1) compel Defendant to furnish the names and contact information of potential plaintiffs; (2) authorize Plaintiffs to circulate the proposed Notice and Opt-In Consent Forms; (3) prohibit Defendant from engaging in communications or activities that may improperly influence, mislead or discourage potential plaintiffs from joining this action; and (4) appoint Plaintiffs' counsel as counsel for the members of the collective action.

         DISCUSSION

         I. Legal Standard

         “The FLSA . . . was enacted ‘to protect all covered workers from substandard wages and oppressive working hours.'” Adair v. City of Kirkland, 185 F.3d 1055, 1059 (9th Cir. 1999) (quoting Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739, (1981)). “The FLSA's minimum wage and overtime provisions are central among the protections the Act affords to workers.” Id. Section 216(b) provides a mechanism by which plaintiffs can bring a collective action:

An action to recover the liability prescribed in [this subsection] may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No. employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). The statute makes clear that “workers may litigate jointly if they (1) claim a violation of the FLSA, (2) are ‘similarly situated,' and (3) affirmatively opt in to the joint litigation, in writing.” Campbell v. City of Los Angeles, 903 F.3d 1090, 1100 (9th Cir. 2018). A collective action under 216(b) is distinct from a class action under Fed.R.Civ.P. 23. Id. at 1101. Unlike in the Rule 23 context, “[p]reliminary certification in the FLSA context, ” also known as “provisional” or “conditional” certification, “does not ‘produce a class with an independent legal status[ ] or join additional parties to the action.'” Id. (quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013)). “The sole consequence of a successful motion for preliminary certification is the sending of court-approved written notice to workers who may wish to join the litigation as individuals.” Id. (internal quotation marks and citation omitted). Courts typically address whether the collective mechanism is appropriate in an FLSA action at two points in the litigation. First, in early stages, plaintiffs often move for preliminary certification. Id. at 1109. The district court's analysis during this stage typically focuses on the pleadings, but may also include supplemental declarations. Id. The level of consideration given by the district court is “lenient, ” and is “sometimes articulated as requiring substantial allegations, sometimes as turning on a reasonable basis, but in any event loosely akin to a plausibility standard, commensurate with the stage of the proceedings.” Id. (internal quotation marks and citations omitted). If the court grants the plaintiffs' motion for preliminary certification, the second stage comes after the close of discovery, when an employer may move for “decertification” on the theory that “plaintiffs' status as ‘similarly situated' was not borne out by the fully developed record.” Id. at 1100. The standard on decertification is more similar to a summary judgment standard, see Id. at 1119, and “[d]etermining whether a collective action is appropriate is within the discretion of the district court, ” Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004).

         Section 216(b) does not define the term “similarly situated, ” and up until recently, the Ninth Circuit had not spoken to the issue. In Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018), the Ninth Circuit interpreted the term “similarly situated, ” disapproving of the test that had been used up until that point by a majority of courts-the “ad hoc” test.^[2] Under that test, the court considered “the factual differences between the party plaintiffs and the desirability of collective treatment.” Id. at 1113. But the Ninth Circuit criticized that test as explaining only what the term “similarly situated” does not mean, rather than what it does mean. Id. at 1114. The Ninth Circuit then explained that the “natural answer to the proper inquiry-what ‘similarly situated' means-is, in light of the collective action's reason for being within the FLSA, that party plaintiffs must be alike with regard to some material aspect of their litigation.” Id. The panel explained that the FLSA's goal of allowing “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources, ” can only be “achieved-and therefore, a collective can only be maintained-to the extent party plaintiffs are alike in ways that matter to the disposition of their FLSA claims.” Id. “[W]hat matters is not just any similarity between party plaintiffs, but a legal or factual similarity material to the resolution of the party plaintiffs' claims[.]” Id. at 1115. Therefore, “[i]f the party plaintiffs' factual or legal similarities are material to the resolution of their case, dissimilarities in other respects should not defeat collective treatment.” Id. at 1114.

         II. Analysis

         The Court considers the pleadings and other evidence submitted to determine whether potential collective action members are “similarly situated” to Plaintiffs. Per the Ninth Circuit's holding in Campbell, the Court specifically looks at whether the prospective parties are “alike with regard to some material aspect of their litigation.” Id. The standard used is “lenient, ” and “loosely akin to a plausibility standard.” Id. at 1109.

         Based on the Campbell test, the Court concludes that the inquiry here is whether Plaintiffs substantially allege a policy, which is applicable to all Mesa based ADOs, to dock one hour of potential overtime pay under the meal break policy without the ADOs receiving bona fide meal breaks. The Ninth Circuit's analysis in Campbell supports this conclusion. In Campbell, plaintiff police officers moved for conditional certification of a collective action alleging “a pervasive, unwritten policy discouraging the reporting of overtime.” Id. at 1099. After notice was sent to all potential collective action members and after years of discovery, the court granted defendant's motion for “decertification.” Id. The Ninth Circuit noted that the plaintiffs would have been “similarly situated” if the record supported that “there was a tacit, Department-wide policy discouraging the reporting of earned overtime.” Id. at 1116. The panel further stated that this would have made the officers “alike in a way material to their litigation, ” and that ...