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Kiley v. Medfirst Consulting Healthcare Staffing, LLC

United States District Court, N.D. Alabama, Southern Division

February 23, 2018

JILL KILEY, et al., Plaintiffs,



         This 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.

         I. Background

         Plaintiffs 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).

         Plaintiffs 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).

         Plaintiffs 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.

         II. Legal Standards Applicable to Conditional Certification

         The 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 brought.

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).

         In 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 Cir. 2001).

         The 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.

         Because 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 discovery.

         The second determination is typically precipitated by a motion for “decertification” by the defendant usually filed after discovery is largely ...

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