United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Plaintiffs' Motion for
Conditional Collective Action Certification and
Court-Supervised Notice (Doc. # 50). This motion has been
fully briefed (see Docs. # 64, 80), and the court
held oral argument on January 4, 2018. Following oral
argument, the parties submitted supplemental briefing. (Docs.
# 99, 100). For the reasons explained below, the court
concludes that Plaintiffs' Motion for Conditional
Collective Action Certification is due to be granted in part.
Jill Kiley and Marcus Payne originally filed this Fair Labor
Standards Act (“FLSA”) suit against Defendant in
the District of Oregon. (See Doc. # 1). Defendant
sells information technology and educational services to
healthcare providers across the United States. (Id.
at ¶ 5). Specifically, it helps healthcare companies
find “consultants” to implement
“industry-specific software, ” customize that
software, and train personnel to use it. (Doc. # 65 at 1). To
perform these services, Defendant maintains a
“consultant” network with hundreds of
consultants. (Doc. # 1 at ¶ 6). Plaintiffs have worked
as consultants for Defendant. They provided
“information technology support services” to
Defendant's clients between 2013 and 2016. (Id.
at ¶¶ 3-4). As consultants, Plaintiffs Kiley and
Payne trained and supported hospital personnel that used
“EPIC, an electronic medical record-keeping
software.” (Docs. # 50-4 at 2; 50-5 at 2).
claim that Defendant improperly classified them as
independent contractors instead of employees. (Doc. # 1 at
¶¶ 14, 43). In arguing that that they actually were
employees of Defendant, Plaintiffs aver that: (1) they
received assignments from Defendant; (2) they signed
contracts with Defendant before each project that contained
restrictive covenants; (3) they received training from
Defendant about EPIC software and methods for training
medical personnel; (4) a project manager employed by
Defendant supervised them on each project; (5) they reported
to Defendant about their job performance; and (6) they
submitted timesheets and expense reports to Defendant.
(See Docs. # 50-4 at 2-3; 50-5 at 2-3). According to
at least one affiant, he had to wear a particular vest and an
identification badge while working for Defendant. (Doc. #
50-7 at 2). Another former consultant recounts that Defendant
discouraged consultants from refusing assignments during
training. (Doc. # 50-6 at 2-3).
assert that Defendant violated the FLSA when it misclassified
them and failed to pay them overtime wages during weeks in
which they worked more than 40 hours. (Doc. # 1 at ¶
28). Plaintiffs further contend that an overtime exemption
for computer workers is inapplicable to them. (Id.
at ¶¶ 30-33). Plaintiffs have added Oregon and
Pennsylvania state-law claims based on Defendant's
failure to pay overtime wages. (See Doc. # 95 at
¶¶ 76-90). To date, seventy five plaintiffs have
sought to join this action as opt-in plaintiffs.
Legal Standards Applicable to Conditional
FLSA authorizes the filing of collective actions when the
following conditions are met:
An action . . . may be maintained against any employer . . .
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
29 U.S.C. § 216(b). The purpose of such a collective
action is “to avoid multiple lawsuits where numerous
employees have allegedly been harmed by a claimed violation
or violations of the FLSA by a particular employer.”
Prickett v. Dekalb Cty., 349 F.3d 1294, 1297 (11th
Cir. 2003). A district court has the discretion to
conditionally certify a collective action if doing so would
permit the “efficient resolution in one proceeding of
common issues of law and fact arising from the same alleged .
. . activity.” Hoffman-La Roche, Inc. v.
Sperling, 493 U.S. 165, 169-70 (1989). Our Circuit has
made clear that before exercising that discretion and
“facilitating notice, a district court should satisfy
itself that there are other employees who desire to
‘opt-in' and who are ‘similarly situated'
with respect to their job requirements and with regard to
their pay provisions.” Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008)
(internal quotation marks and modifications omitted).
Hipp v. Liberty National Life Insurance Co., the
Eleventh Circuit “suggest[ed]” a
“two-tiered approach to certification of § 216(b)
opt-in classes” to assist district courts in resolving
the similarly situated inquiry. 252 F.3d 1208, 1219 (11th
first determination is made at the so-called “notice
stage.” At the notice stage, the district court makes a
decision-usually based only on the pleadings and any
affidavits which have been submitted-whether notice of the
action should be given to potential class members.
the court has minimal evidence, this determination is made
using a fairly lenient standard, and typically results in
“conditional certification” of a representative
class. If the district court “conditionally
certifies” the class, putative class members are given
notice and the opportunity to “opt-in.” The
action proceeds as a representative action throughout
second determination is typically precipitated by a motion
for “decertification” by the defendant usually
filed after discovery is largely ...