United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
before the court is Plaintiffs' motion to conditionally
certify this lawsuit as a collective action under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
216(b), and to facilitate notice to potential class members.
(Doc. 15). Plaintiffs also request that the court order
Defendant Olympia Management, Inc. (“OMI”) to
produce the names and contact information for potential class
members and that the court allow for a sixty day opt-in
period. (Doc. 15-2 at 3).
Plaintiffs have satisfied their burden of showing the
existence of similarly situated employees who are interested
in opting into this lawsuit, the court
GRANTS the motion for conditional
certification. However, the court DENIES the
motion to approve Plaintiffs' proposed notice of the
collective action WITHOUT PREJUDICE because
the class definition included in that notice is overly broad.
this motion comes before the court at an early stage in the
litigation, the court's “decision to certify a
class is based primarily on pleadings and affidavits.”
Anderson v. Cagle's, Inc., 488 F.3d 945, 953
(11th Cir. 2007). Accordingly, the court draws its
description of the background facts from Plaintiffs'
amended complaint as well as the affidavits submitted to the
court in connection with this motion.
provides property management services across the Southeastern
United States. (Doc. 14 at 3 ¶ 10). Plaintiffs Stacey
Vandergriff and Vickie Dickerson were employed as resident
property managers at two properties operated by OMI. (Doc.
15-2 at 9, 11). Throughout their employment, OMI classified
the Plaintiffs as hourly, non-exempt employees (id.
at 9 ¶ 6, 11 ¶ 7), meaning that the FLSA required
OMI to pay them a statutorily mandated minimum wage, 29
U.S.C. § 206(a)(1), and at least one and a half times
their regular rate of pay for each hour worked over forty
hours per week, 29 U.S.C. § 207(a)(2).
OMI assigned Plaintiffs less than forty hours of work per
week, it also required them to remain “on call”
twenty-four hours a day, seven days a week. (Doc. 15-2 at 9
¶¶ 8-9, 11 ¶¶ 9-10). Plaintiffs'
“on call” responsibilities included collecting
rental payments, distributing keys to tenants, returning
telephone calls, and addressing a variety of maintenance
concerns. (Doc. 18-1 at 6-10; Doc. 18-3 at 3; Doc. 18-5 at
4). They allege that OMI's on-call policy required them
to work more than forty hours per week but that OMI did not
pay them for time spent performing these duties outside of
their regular work schedules. (Doc. 15-2 at 10 ¶¶
11-14, 12 ¶¶ 12-15).
amended complaint seeks to recover unpaid minimum wage and
overtime compensation under the FLSA. (Doc. 14 at 1). They
bring their claims on behalf of themselves and a putative
class consisting of “Resident Property Managers who
were required to be on call and were not compensated for all
hours worked along with not being compensated for hours
worked in excess of 40 hours per week.” (Doc. 14 at 9
216(b) of the FLSA allows individual employees to bring a
collective action suit on “behalf of [themselves] . . .
and other employees similarly situated.” 29 U.S.C.
§ 216(b). The decision to implement the collective
action procedure is soundly within the discretion of the
district court. Hoffman-LaRoche, Inc. v. Sperling,
493 U.S. 165, 169 (1989). The Eleventh Circuit has
recommended a two-stage procedure to determine whether it is
appropriate to maintain an FLSA case as a collective action.
Dybach v. State of Florida Dep't of
Corrections, 942 F.2d 1562 (11th Cir. 1991); see
also Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208,
1219 (11th Cir. 2001). At the first stage, conducted early in
the case, the court “evaluate[s] the case under a
lenient standard” and determines whether to grant
preliminary certification of an opt-in class. See
Hipp, 252 F.3d at 1217, 1219. At the second stage,
conducted after the parties have engaged in discovery, the
court re-evaluates the propriety of that certification and
can, if necessary, decertify the class. Id. at
1217-19. The motion currently before the court is for the
preliminary, conditional certification.
certification is appropriate if the plaintiffs can
demonstrate that there are (1) other similarly situated
employees (2) who are interested in opting in to the lawsuit.
Grayson v. K Mart Corp., 79 F.3d 1086, 1097 (11th
Cir. 1996). Plaintiffs bear the burden of making that
showing, but the burden is light; they need only show a
“reasonable basis” for their claim that similarly
situated employees are interested in opting-in to the suit.
Id. They can do so by providing “detailed
allegations supported by affidavits.” Id.
the FLSA nor the Eleventh Circuit has defined
“similarly situated” for purposes of collective
actions. See Morgan v. Family Dollar Stores, Inc.,
551 F.3d 1233, 1259 (11th Cir. 2008). But the Eleventh
Circuit has stated that the plaintiffs “need show only
that their positions are similar, not identical, to the
positions held by the putative class members.”
Grayson, 79 F.3d at 1096. The Court has also
indicated that some considerations include the similarities
in job requirements and pay provisions. See Dybach,
942 F.2d at 1567-68.
support of their motion for certification, Plaintiffs present
affidavits from themselves and one other OMI resident
property manager, each attesting that OMI's resident
property managers were hourly, non-exempt employees; were
subject to the on-call policy; and regularly performed
off-the-clock work in excess of forty hours per week, all
with OMI's knowledge. (Doc. 15-2 at 9-14). Plaintiffs
also present evidence that all of the resident property
managers share the same job duties. (Id. at 7-8,
15-16). Moreover, Plaintiffs attest that they
“believe” other employees would join this suit if
given the opportunity (id. at 10, 12), and the third
resident property manager attests that she will opt in if the
court grants conditional certification (id. at 13).
responds that Plaintiffs have failed to demonstrate that
members of the proposed class are similarly situated. (Doc.
19 at 1-2). Its primary arguments are that Plaintiffs have
not produced sufficient evidence to counter its evidence that
it did not have an on-call policy or, alternatively, that
being “on call” does not violate the FLSA.
(Id. at 11-17). Those arguments, however, are
premature. The only question at this point is whether
Plaintiffs have shown a “reasonable basis” for
their claim that similarly situated employees are interested
in opting into this lawsuit. See Grayson, 79 F.3d at
1097. On that question, OMI argues only that uniform job
duties and compensation are not enough to be considered
similarly situated for purposes of collective action
certification, and that it has presented evidence that ...