United States District Court, M.D. Alabama, Northern Division
BONNIE BOSTON and SYLVIA WALLACE, on behalf of themselves and all others similarly-situated, Plaintiffs,
UNITED FLORALA, INC. d/b/a Florala Memorial Hospital; Defendants.
MEMORANDUM OPINION AND ORDER
W. HAROLD ALBRITTON, Senior District Judge.
I. FACTS AND PROCEDURAL HISTORY
This cause is before the court on the Plaintiffs' Motion for Conditional Class Certification and to Facilitate Notice Pursuant to the Fair Labor Standards Act (AFLSA") (Doc. #68).
Bonnie Boston and Sylvia Wallace ("the Plaintiffs"), on behalf of themselves and all others similarly-situated ("the Plaintiffs") have brought a claim for denial of overtime compensation under the FLSA and move for conditional certification of a collective action pursuant to 29 U.S.C. § 216(b) as follows:
All persons who are or were employed at Florala Memorial Hospital's campus:
(1) in the three year period preceding the filing of this motion; (2) who were paid on an hourly basis; and (3) while paid on an hourly basis, worked in excess of 40 hours in any seven day workweek.
The Plaintiffs and the potential collective action members in this case were employed with the Defendant in various positions, but they state that they were hourly workers who were subjected to the Defendant's common pay practice of failing to compensate employees at overtime rates for all hours worked in excess of 40 in a workweek. The Plaintiffs have provided Declarations which state that the Defendant only paid overtime if the hours worked exceeded 80 hours in a pay period. (Doc. #68-1, 2). The Plaintiffs further state in their Declarations that they did not enter into an agreement that Florala Memorial would use a fourteen day period to calculate overtime. (Doc. #68-1, 2). They also state that their observed other hourly employees who were paid in the same way. (Doc. #68-1, 2). They state that to their knowledge there have been more than fifty co-workers subjected to the illegal practice, and that the number likely exceeds 100. (Doc. #68-1, 2).
In its Answer to the Amended Complaint, the Defendant states that it was entitled to pay overtime in accordance with 29 C.F.R. §778.601(a), which permits a 14-day period to be established for the purpose of computing overtime compensation by an agreement or understanding between an employer engaged in the operation of a hospital or residential care establishment and its employees. (Doc. #62 at ¶55).
The Defendant opposes conditional certification. Although it challenges whether there are sufficient similarly-situated employees and evidence of a denial of overtime pay, among other things, the Defendant does not challenge the Plaintiffs' definition of the collective action to be conditionally certified.
District courts have discretionary power to authorize the sending of notice to potential class members in a collective action brought pursuant to 29 U.S.C. § 216(b). Hipp v. National Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001) ("The decision to create an opt-in class under § 216(b), like the decision to certify a class under Rule 23, remains soundly within the discretion of the district court'). The power to authorize notice must, however, be exercised with discretion and only in appropriate cases. See Haynes v. Singer Co., 696 F.2d 884, 886 (11th Cir. 1983).
The Eleventh Circuit has adopted a two-stage procedure for district courts to manage FLSA cases. See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260-61 (11th Cir. 2008). The first step is the notice stage. Hipp, 252 F.3d at 1218. At that stage, the district court determines whether other similarly-situated employees should be notified. Id. In the absence of statutory or regulatory guidance as to when discretion to authorize notice to "similarly-situated" employees is to be exercised, the Eleventh Circuit has held that a district court should make certain determinations before allowing an individual plaintiff to give notice to other potential members of a Plaintiffs class under the FLSA. Morgan, 551 F.3d at 1260. Specifically, Athe district court should satisfy itself that there are other employees of the defendant-employer who desire to opt-in' and are similarly situated' with respect to their job requirements and with regard to their pay provisions." Dybach v. Florida Dept. of Corrections, 942 F.2d 1562, 1567-68 (11th Cir. 1991). The Eleventh Circuit has clarified, however, that courts are to determine whether employees "are similarly situated-not whether their positions are identical." Morgan, 551 F.3d at 1260. A plaintiff has the burden of showing a "reasonable basis" for his claim that there are other similarly-situated employees. Id. This standard has been described by the Eleventh Circuit "not particularly stringent, " "fairly lenient, " and "less stringent than that for joinder under Rule 20(a) or for separate trials under 42(b)." Id. at 1260-61. The Plaintiffs have the burden of demonstrating a reasonable basis for crediting the assertion that aggrieved individuals exist in the class they propose. See Haynes, 696 F.2d at 887. This first step is also referred to as conditional certification since the decision may be reexamined once the case is ready for trial. Morgan, 551 F.3d at 1261. The second stage is triggered by an employer's motion for decertification and is less lenient, with the plaintiff bearing a heavier burden. Id.
In this case, the Plaintiffs have presented their own Declarations in which they state that they were employed by Florala Memorial Hospital and were not paid overtime compensation if they worked in excess of forty hours in a seven day workweek, unless the number of hours they worked exceeded eighty hours in a pay period. (Doc. #68-1 at ¶8, 68-2 at ¶8). They also state that they did not enter into an agreement that Florala Memorial would use a fourteen consecutive day period to calculate overtime instead of a seven day period. (Doc. #68-1 at ¶9, 68-2 at ¶9). The Plaintiffs have submitted Declarations from additional employees which make similar statements. (Doc. #68-3-7). The Declarations state that they personally observed hourly employees not receiving overtime unless they worked in excess of eighty hours in a pay period, and identify a list of other employees whom the Declarants say will join the suit. (Doc. #68-1-7). The Declarants state that there have been more than fifty employees subject to the Defendant's overtime practice. (Doc. #68-1 at ¶12, Doc. #68-2 at ¶12). They state that the number likely exceeds 100, due to the turnover of employees they observed. (Doc. #68-1 at ¶12, Doc. #68-2 at ¶ 12).
The Defendant argues that conditional certification should be denied in this case on these bases: there has been no factual showing that any employee was denied overtime compensation, the Declarants are not similarly-situated because they claim they are owed overtime compensation for widely-varying tasks and there is no showing of a single policy or practice denying them overtime compensation, and the proposed collective action is not sufficiently numerous to justify collective action treatment because there were only approximately fifty individuals employed by the Defendant at one time and the Plaintiffs can only expect a handful to opt in. Finally, the Defendants argue for a stricter standard of proof in this case, stating that the Plaintiffs have already undertaken widespread informal ...