United States District Court, N.D. Alabama, Northeastern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiffs' amended motion
to conditionally certify this case as a collective action.
(Doc. # 21). Jonathan Campbell and Edgar Hernandez
(“Plaintiffs”) claim their employer violated the
Fair Labor Standards Act (“FLSA”) by failing to
pay them for overtime hours at the required time-and-a-half
rate. They now seek to conditionally certify a collective
action of other similarly situated employees pursuant to 29
U.S.C. § 216(b). Plaintiffs' employer, System
Dynamics International, Inc. (“SDI”) agrees that
conditional certification is appropriate but contests the
scope of Plaintiffs' proposed class. After careful
consideration, the court agrees with SDI that Plaintiffs'
proposed class is too broad and that it should conditionally
certify a narrower class of employees, as explained more
are two former employees of SDI, a private military
subcontractor that supplies drone pilots to fly Army drones.
(Doc. # 1 at ¶¶ 16, 19; Doc. # 23 at 3). In
military parlance, and within the nomenclature of SDI, drone
pilots are known as Air Vehicle Operators
(“AVOs”). (Doc. # 23 at 3). Their primary
function is to operate military drones from a ground control
station. (Id. at 4).
the past three years, SDI has employed several dozen AVOs.
(Doc. # 21 at 7; Doc. # 23 at 3). When AVOs are first hired
by SDI, they undergo a training period of approximately 14 to
16 weeks at various sites throughout the United States. (Doc.
# 1 at ¶ 43). During stateside training, AVOs sometimes
work more than 40 hours per week. (Doc. # 9 at ¶¶
48, 49). After completing training, the AVOs are flown to the
Continental United States Replacement Center
(“CRC”) at Fort Bliss in El Paso, Texas for
processing by the military before they deploy overseas. (Doc.
# 1 at ¶ 61). Following the one-week processing at the
CRC, the AVOs serve on deployments overseas. (Id. at
¶ 63). At the end of their deployments, the AVOs are
flown back to the United States, where they undergo
out-processing at the CRC. (Id. at ¶ 64).
lawsuit, Plaintiffs claim that SDI violated the FLSA by
misclassifying AVOs as exempt from the Act's overtime
requirements and failing to pay its AVOs at the required
time-and-a-half rate for overtime hours worked while
stateside. (Id. at ¶¶ 73, 78, 81).
SDI acknowledges that, prior to January 1, 2017, it
classified AVOs as exempt from the FLSA's overtime
requirements. (Doc. # 23 at 5). It did so based on its belief
that AVOs meet the “highly compensated employee”
exemption of 29 C.F.R. § 541.601. (Id.). But in
2017, SDI changed its policy. Effective January 1, 2017, SDI
classified AVOs as nonexempt and began paying them a
time-and-a-half premium for overtime hours based on the
Department of Labor's 2016 decision to raise the minimum
compensation for a highly compensated employee.
(Id.). Plaintiffs now move the court to
conditionally certify a collective action consisting of all
AVOs employed by SDI at any point during the FLSA's
three-year limitations period for willful violations of the
Act, 29 U.S.C. § 255(a). (Doc. # 25 at 9-10).
FLSA permits an employee to maintain a collective action
against an employer on behalf of himself “and other
employees similarly situated.” 29 U.S.C. § 216(b).
The Eleventh Circuit has structured a two-step process for
determining whether an FLSA case may proceed as a collective
action. See Hipp v. Liberty Nat. Life Ins. Co., 252
F.3d 1208, 1219 (11th Cir. 2001). The first step occurs early
in the litigation and requires the district court to
determine “whether notice of the action should be given
to potential class members” so that they can decide
whether to opt in to the lawsuit. Id. at 1218.
Before facilitating notice, a district court must satisfy
itself that there are other employees who (1) desire to opt
in to the lawsuit and (2) are similarly situated with respect
to both their job responsibilities and their pay provisions.
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,
1259 (11th Cir. 2008). The Eleventh Circuit has described the
standard for determining whether employees are similarly
situated at this stage as “fairly lenient, ”
Anderson v. Cagle's, Inc., 488 F.3d 945, 953
(11th Cir. 2007), but has made clear that the determination
must rest on more than “counsel's unsupported
assertions, ” Morgan, 551 F.3d at 1261.
Because the certification decision is made early in the
litigation, it is “usually based only on the pleadings
and any affidavits which have been submitted.”
Hipp, 252 F.3d at 1218.
first step is known as “conditional
certification” because the decision to certify a
collective action can be reconsidered in the second step,
after the close of discovery. See Morgan, 551 F.3d
at 1261. This second step is “triggered by an
employer's motion for decertification.”
Id. Because discovery will have concluded by the
time of the decertification motion, the district court is now
better positioned to resolve any factual disputes concerning
whether the class members are similarly situated.
Id. Consequently, the second step is “less
lenient, and the plaintiff bears a heavier burden” in
showing that the class members are in fact similarly
parties agree that certification of a conditional class is
appropriate in this case. (Doc. # 23 at 3). But they disagree
about the scope of the class and the appropriate manner of
providing notice to potential class members of their right to
join this collective action. Accordingly, the court addresses
each of these issues in turn.
The Scope of the Class
contend that because SDI treats all AVOs similarly with
respect to their job duties and pay practices, the
conditional class should encompass all AVOs who worked for
SDI at any point during the FLSA's three-year limitations
period for willful violations. (Doc. # 25 at 4-5). SDI
counters that the class should include only those AVOs who
both worked for SDI during the three-year limitations
period and were hired before January 1, 2017,
when SDI began paying AVOs time-and-a-half for any overtime
worked. (Doc. # 23 at 8).
conditional certification stage, Plaintiffs “bear the
burden of demonstrating a reasonable basis” for their
claim that AVOs were subject to a common illegal pay policy.
Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th
Cir. 1996) (internal quotation marks omitted). That burden
“is not heavy, ” and Plaintiffs may carry it by
making “detailed allegations” that AVOs were
subject to a common illegal pay policy. Id.
Plaintiffs need not conclusively establish their allegations
at this point; rather, their allegations need only be
“supported by affidavits which successfully engage
defendants' affidavits to the contrary.”
Id. (internal quotation marks omitted).
parties disagree about the scope of the proposed class in