United States District Court, D. Arizona
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 ...