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Nicks v. PECO Foods, Inc.

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

March 27, 2018

JIMMY R. NICKS and WILLIAM MCNEAL, individually and on behalf of all persons similarly situated, Plaintiffs,
PECO FOODS, INC., et al., Defendants.



         Plaintiffs Jimmy R. Nicks (“Nicks”) and William McNeal (“McNeal”) (collectively, “Plaintiffs”) filed this action against Defendants Peco Foods, Inc. (“Peco”) and ARMCO Services, Inc. (“ARMCO”)[1] under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (the “FLSA”) on June 29, 2016. Before the Court is Plaintiffs' Amended Motion for Conditional Certification and to Facilitate Notice Pursuant to 29 U.S.C § 216(b). (Doc. 69.) The motion has been fully briefed and is now ripe for decision. For the reasons stated below, the motion (doc. 69) is due to be GRANTED.

         I. Background

         Peco is a vertically integrated chicken processing and packing company with facilities in various locations across Mississippi, Alabama, Arkansas and Missouri, and is headquartered in Tuscaloosa, Alabama. (Doc. 63 at 12-13.) Since approximately 2011, Peco has used independent contractors[2] for catching chickens for five out of its six complexes.[3] Peco negotiates individual contracts with its independent contractors who then invoice Peco for the work completed.[4] While Peco does not maintain information on the pay rates that the independent contractors use, the form Independent Contractor Agreements between Peco and each of the independent contractors require that contractors comply with federal and state regulations.[5] Peco pays the companies per one thousand chickens caught, and allegedly does not pay any extra compensation for downtime work or overtime work performed. The two named Plaintiffs were employed via independent contractor Armco at Peco's Gordo Complex and/or Sebastopol Complex. Of the forty-four opt-in forms provided as of the date of Plaintiffs' motion for certification, [6] including those of Nicks and McNeal, nearly all have been from workers employed by Armco at either the Gordo or Sebastopol Complex.

         Peco operates six Live Operations complexes located in Alabama, Mississippi, and Arkansas, all of which oversee the supply of broiler chickens to Peco's processing facilities. (Doc. 75 at 7-8.) Putative class members'[7] work involves the capture of chickens to supply to the Peco facilities. Plaintiffs are hired by independent contractors and placed on live-haul crews of “approximately ten to twelve workers, generally including eight to nine catchers, one or two forklift operators, and crew leader.” (Doc. 1 at 6.) Plaintiffs and the putative class members travel to the farms to capture chickens and place them in cages for transport to Peco's poultry processing plants at each of the Peco Complexes. (Sanders Dep. at 36.) On a typical shift, Plaintiffs estimate “between 36, 000 and 42, 000 chickens are caught by one live-haul crew.” (Doc. 1 at 10.) Crews are “transport[ed] from their homes to motels or trailer parks, where they stay the nights during the workweek” and also are transported “between motels and trailer parks and the farms where they perform Peco's chicken catching, at times travelling an hour or more.” (Id. at 7.)

         Plaintiffs aver that Peco oversees[8] the live-haul crews' work in addition to “dictat[ing] their schedules” as well as their “daily activities and working conditions.” (Doc. 1 at 7; Doc. 63 at 21.) For example, “a Peco office employee called a live production supervisor determines the schedule, assignments and order of work of the crews, in conjunction with a Peco ‘service man, ' who visits the work sites and the crews one to two times a week and reports his findings and observations to his superiors at Peco.” (Doc. 1 at 7.) The Peco live production supervisor also “issues daily instructions” which determine the “chicken houses the live-haul crews shall work [in] and how many and which chickens they will catch and cage for Peco.” Id.

         The individuals in the live-haul crews perform substantially the same work tasks at each Peco facility. While the number of hours worked or chickens harvested may vary slightly from day to day, the duties performed by each live-haul crew are alleged to be almost indistinguishable no matter their third-party contractor or farm location.[9] As such, Plaintiffs aver that all crew members were subject to the same work environment, reporting structure, and Peco policies and practices.

         Plaintiffs allege Peco paid each contractor on a piece rate basis, and the independent contractors in turn failed to pay for overtime hours or time spent waiting for work to become available when calculating remittance they were due.[10]

         II. Standard of Review

         Section 216 (b) of the FLSA allows a cause of action for plaintiffs “for and in behalf of . . . themselves and other employees similarly situated.” 29 U.S.C. § 216(b). The court has the “discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential class members.” Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, (1989); see Hipp v. Liberty Nat'l 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 on class certification under Rule 23, remains soundly within the discretion of the district court.”); see also Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008). Plaintiffs who bring a class action suit under § 216(b) may only include members of the class who opt into the suit. Hipp, 252 F.3d at 1216. The Eleventh Circuit has endorsed a two-tiered system for the certification of classes in suits under § 216(b) of the FLSA. See Dybach v. State of Fla. Dep't of Corrections, 942 F.2d 1562 (11th Cir. 1991).

         The first step in the process, often denoted as the “notice stage, ” is a conditional certification of the class. Conditional certification should be granted when “a plaintiff [meets] the burden of showing a ‘reasonable basis' for his claim that there are other similarly situated employees.” Morgan, 551 F.3d at 1260 (citations omitted); Dybach, 942 F.2d at 1568 (“the district court should satisfy itself that there are other employees of the department-employer who desire to opt-in and who are similarly situated with respect to their job requirements and with regard to their pay provisions.”) (internal quotations and citations omitted). The standard for granting conditional certification is “fairly lenient”, typically resulting in the conditional certification. Hipp, 252 F.3d at 1218; see also Grayson v. Kmart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (holding Plaintiffs need not establish “a unified policy, plan, or scheme of [unlawful activity] to satisfy the liberal similarly situated requirement of § 216(b)”) (internal quotations omitted).

         After discovery “is largely complete and the matter is ready for trial, ” the court may undertake the second step-final certification-generally in response to a motion for “decertification” by the defendant. Hipp, 252 F.3d at 1218. At this second stage, the court, which “has much more information on which to base its decision[, ] makes a factual determination on the similarly situated question.” Id. However, even at the second stage, the decision to certify a collective action is within the district court's discretion. Anderson v. Cagles, Inc., 488 F.3d 945, 953 (11th Cir. 2007).

         III. Discussion

         A. Motion for Conditional Class Certification

         i. Desire of Other Employees to Opt-In

         For a class to receive conditional certification, Plaintiff must show that there is a desire among other employees to opt-in to the suit. This showing is analyzed under a lenient standard and is not required to be extensive. Plaintiffs include fifty opt-in forms besides their own. (Doc. 63 & n. 2 supra.) While the additional opt-ins were employed at the same facility as Plaintiffs, by ...

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