United States District Court, N.D. Alabama, Northeastern Division
BREEANA MILLER, on behalf of herself and all others similar situated, Plaintiffs,
JAH, LLC d/b/a JIMMY'S LOUNGE Defendant.
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Miller filed this lawsuit against Jimmy's Lounge
(“Jimmy's”), on behalf of herself and others
similarly situated, alleging violations of the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et
seq. Doc. 1. Presently before the court is
Miller's Amended Motion for Conditional Certification,
doc. 48. The motion is fully briefed, docs. 49, 52, 54, and
ripe for review. For the reasons stated more fully below, the
motion is due to be granted in part.
and the putative class members are dancers that worked at
Jimmy's between September 16, 2013, and September 16,
2016. Docs. 47; 48 at 1. Jimmy's allegedly misclassified
Miller and the putative class members as independent
contractors, and does not pay them any wages. Doc. 47 at 5-6.
Instead, the putative class members' sole income from
their work is in the form of tips. Id. at 6. Miller
alleges that the putative class members are employees, rather
than independent contractors, because Jimmy's promulgates
a number of rules that the putative class members must
follow. These rules include requiring the dancers to pay
“tip-out” fees to Jimmy's management and
other non-tipped employees; requiring them to report to work
at specific times and attend a specific number of shifts each
week; setting the prices of private dances; and imposing
monetary penalties for absences, lateness, leaving shifts
early, the dancers' weight, and other aspects of their
physical appearance. Id. at 10-11.
CONDITIONAL CLASS CERTIFICATION STANDARD
216(b) of the FLSA authorizes actions for unpaid overtime
compensation against an employer “by any one or more
employees for and in behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. §
216(b). Thus, to maintain a collective action under the FLSA,
plaintiffs must demonstrate that they are “similarly
situated.” Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1258 (11th Cir. 2008). Further,
would-be plaintiffs in a § 216(b) collective action must
affirmatively “opt in” to the suit. 29 U.S.C.
§ 216(b) (“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.”). “That is, once a
plaintiff files a complaint against an employer, any other
similarly situated employees who want to join must
affirmatively consent to be a party and file written consent
with the court.” Morgan, 551 F.3d at 1259. The
FLSA does not provide specific procedures by which potential
plaintiffs may opt in, but the Supreme Court has held that
“district courts have discretion, in appropriate cases,
to implement 29 U.S.C. § 216(b) . . . by facilitating
notice to potential plaintiffs.” Hoffman-La Roche
Inc. v. Sperling, 493 U.S. 165, 169 (1989); see also
Haynes v. Singer Co., 696 F.2d 884, 886 (11th Cir.
1983). Indeed, the Supreme Court has endorsed the practical
benefits of FLSA collective actions, as follows:
A collective action allows . . . plaintiffs the advantage of
lower individual costs to vindicate rights by the pooling of
resources. The judicial system benefits by efficient
resolution in one proceeding of common issues of law and fact
arising from the same alleged discriminatory activity. These
benefits, however, depend on employees receiving accurate and
timely notice concerning the pendency of the collective
action, so that they can make informed decisions about
whether to participate.
Hoffman-La Roche, 493 U.S. at 170.
Eleventh Circuit has suggested a two-tiered process for
district courts to manage collective actions. Hipp v.
Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218-19
(11th Cir. 2001). At the first stage, called conditional
certification or the “notice” stage, the district
court makes a determination, based on the pleadings and
affidavits on file, of whether it should authorize notice of
the action to potential class members. Id. at 1218.
Because the court has minimal evidence, the standard is
lenient. Id. The district court must merely
ascertain whether there are other employees who wish to opt
in, and that they are similarly situated to the original
plaintiff “with respect to their job requirements and
with regard to their pay provisions.” Morgan,
551 F.3d at 1259 (quoting Dybach v. Fla. Dep't of
Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991)). Indeed,
this inquiry “typically results in ‘conditional
certification' of a representative class.”
Hipp, 252 F.3d at 1218. If the court conditionally
certifies a class, court-supervised notice of the pendency of
the action is then given to the potential class members, and
they are afforded an opportunity to opt in to the action.
second stage of the process is activated by the
defendant's filing of a decertification motion following
the completion of discovery. Id. At this stage,
based on a fully-developed record, the court makes a
determination of whether the named plaintiffs and the opt-ins
are similarly situated. Id. The plaintiff has a
heavier burden to show similarity at the second stage.
Morgan, 551 F.3d at 1261. If the court finds the
plaintiffs are not similarly situated, it decertifies the
action, dismisses the opt-in plaintiffs without prejudice,
and the named plaintiffs proceed to trial on their individual
overtime claims. Hipp, 252 F.3d at 1218. At all
times, the decision to certify an opt-in class under section
216(b) “remains soundly within the discretion of the
district court.” Id. at 1219.
burden for conditional certification hinges on her ability to
show that she and the prospective opt-in plaintiffs are
“similarly situated.” Morgan, 551 F.3d
at 1259 (citation omitted). The FLSA does not define
“similarly situated, ” see 29 U.S.C.
§ 216(b), and while the Eleventh Circuit has refused to
adopt a precise definition, see Morgan, 551 F.3d at
1259, it has provided some guidance. It is clear that to
maintain a FLSA collective action, the named plaintiff or
plaintiffs “need only show that their positions are
similar, not identical, to the positions held by the putative
class members.” Grayson v. K-Mart, 79 F.3d
1086, 1096 (11th Cir. 1996). Yet, the “similarities
necessary to maintain a collective action under § 216(b)
must extend ‘beyond the mere facts of job duties and
pay provisions.'” Anderson v. Cagle's,
Inc., 488 F.3d 945, 953 (11th Cir. 2007).
“Otherwise, ‘it is doubtful that § 216(b)
would further the interests of judicial economy, and it would
undoubtedly present a ready opportunity for
abuse.'” Id. (citation omitted).
Essentially, a plaintiff must demonstrate a “reasonable
basis” for her claim of class-wide discrimination.
Grayson, 79 F.3d at 1097. This burden, “which
is not heavy, [is met] by making substantial allegations of
class-wide discrimination, that is, detailed allegations
supported by affidavits which successfully engage
defendants' affidavits to the contrary.”
Id. (citation omitted); see also Morgan,
551 F.3d at 1261 (“The district court's broad
discretion at the notice stage is thus constrained, to some
extent, by the leniency of the standard for the exercise of
that discretion. Nonetheless, there must be more than
‘only counsel's unsupported assertions that FLSA
violations [are] widespread and that additional plaintiffs
would come from other stores.'”) (citation
contends that she is similarly situated with the putative
class, as they are all dancers that Jimmy's treats
identically in terms of work hours, pay, and policies. Doc.
49 at 7-9. Jimmy's does not dispute this. See
doc. 52. Rather, Jimmy's contends that Miller has failed
to produce sufficient evidence that there are other employees
that desire to opt in. Id. at 6-12. Miller counters
by attaching with her reply the affidavit of a putative class
member who states that she would opt in if given the
opportunity. Doc. 54-1.
number of plaintiffs necessary to demonstrate a desire to opt
in is not many, sometimes as few as two, three, or
four.” Lemming v. Sec. Forces, Inc., No.
8:10-CV-1469-T-23AEP, 2010 WL 5058532, at *1 (M.D. Fla. Dec.
6, 2010) (citing Brooks v. A. Rainaldi Plumbing,
Inc., 2006 WL 3544737 (M.D. Fla. Dec. 8, 2006);
Tyler v. Payless Shoe Source, Inc., No.
2:05-CV-33F(WO), 2005 WL 3133763, at *1 (M.D. Ala. Nov. 23,
2005)). “Even a single affidavit or consent to join
submitted by another individual stating that they are
similarly situated and wish to join the suit is enough to
bring the Plaintiff's contentions above pure
speculation.” Brooks, 2006 WL 3544737, at *2
(citing Guerra v. Big Johnson Concrete Pumping,
Inc., No. 05-14237-CIV, 2006 WL 2290512 (S.D. Fla. May
17, 2006)). Accordingly, the evidence Miller has presented
satisfies her lenient ...