G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE.
This case was referred to this Court for all purposes. Currently ripe is Plaintiffs' motion for conditional certification of a collective action under the D.C. Minimum Wage Revision Act ("DCMWRA"), D.C. Code § 32-1001 et seq. After reviewing the entire record,
The Court explained the facts of this case in a prior opinion. Vasquez v. Grunley Constr. Co., Case No. 15-cv-2106, 2016 WL 1559131 (D.D.C. Apr. 18, 2016). The Court will recount here only the facts pertinent to the adjudication of Plaintiffs' motion. Plaintiffs are a group of carpenters who worked on a large-scale renovation project at the Watergate hotel in Washington, D.C. Amended Complaint [Dkt. 1] ¶ 20. Defendant Grunley Construction was the general contractor on the project. Id. ¶ 22. Defendant C.R. Calderon Construction was a carpentry subcontractor, and Defendant Garfias Drywall & Finish was an unlicensed labor recruiter that recruited Plaintiffs for Calderon. Id. ¶¶ 1, 12. Plaintiffs allege that none of the defendants ever paid them for their work. Id. ¶¶ 24, 34.
Plaintiff Vasquez originally brought claims against all Defendants under: (1) the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.; (2) the DCMWRA, D.C. Code § 32-1001 et seq.; (3) the District of Columbia Wage Payment and Collection Law, D.C. Code § 32-1301 et seq.; and (4) the District of Columbia Wage Theft Prevention Amendment Act, D.C. Code §§ 32-1001-15, 32-1301-11. Id. ¶¶ 44-62. He also sought to bring his FLSA and DCMWRA claims on behalf of himself and others similarly situated as a collective action. Id. ¶ 35; see also 29 U.S.C. § 216(b); D.C. Code § 32-1308(a)(1).
On March 7, 2016, Plaintiff Vasquez moved for conditional certification of collective actions under both the FLSA and DCMWRA. Plaintiff's Motion to Certify Class [Dkt. 26]. On April 18, 2016, the Court granted that motion in part. Vasquez, 2016 WL 1559131, at *4. The Court
The Court denied without prejudice the motion to conditionally certify the DCMWRA collective action, however. Id. As explained in that opinion, the DCMWRA previously mirrored the language in the FLSA that provides for collective action based on the written consent of each class member to opt in to the suit. Id. That language was removed from the statute in amendments to the DCMWRA enacted in early 2015, long before the conduct at issue in this case. Id. Without that language, the Court noted that group actions under the DCMWRA may now more closely resemble traditional, opt-out class actions under Federal Rule of Civil Procedure 23. Id. Plaintiff did not argue that certification of the DCMWRA claim was appropriate under Rule 23, and he did not give any reasons why, in light of the amendments to the DCMWRA, the Court should still treat the statute as providing for collective actions like the FLSA. Id. The Court therefore denied the motion but permitted Plaintiffs to address the Court's concerns in a renewed motion.
Plaintiffs filed that motion on May 20, 2016. Defendant Grunley responded on June 10, 2016, and Defendant Calderon responded on June 15, 2016. Plaintiffs replied on June 16, 2016, and so the motion is ripe for disposition.
In their motion, Plaintiffs ask the Court to conditionally certify under the DCMWRA the same collective action it has already conditionally certified under the FLSA. Mot. at 1. The issue before the Court, however, is not whether conditional certification is appropriate on these facts. The Court has already concluded that it is. Vasquez, 2016 WL 1559131, at *4. The only question presented now is whether the 2015 amendments to the DCMWRA removed collective actions as an avenue for bringing group claims, leaving DCMWRA plaintiffs the ability to pursue such claims solely under the traditional class-action procedures in Rule 23.
A. Rule 23 Class Actions and FLSA Collective Actions
Both the FLSA and the DCMWRA require employers to pay their workers a minimum wage and, if the employee works more than forty hours in a workweek, overtime compensation. 29 U.S.C.
"The Federal Rules of Civil Procedure, including Rule 23 authorizing class actions, apply in all civil actions except when Congress has decided otherwise." 5 Moore's Federal Practice § 23.04 (3d ed. 2007) (citing Fed. R. Civ. P. 1; Califano v. Yamasaki, 442 U.S. 682, 700, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)); Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 400, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) ("[L]ike the rest of the Federal Rules of Civil Procedure, Rule 23 automatically applies `in all civil actions and proceedings in the United States district courts.'") (quoting Fed. Rule Civ. P. 1) (emphasis in original). Congress did just that in the FLSA when it provided an "alternative means for obtaining class or group relief." See 5 Moore's Federal Practice § 23.04; 29 U.S.C. § 216(b). An FLSA collective action, unlike a Rule 23 class action, is not subject to the numerosity, commonality, and typicality requirements of Rule 23. Hunter, 346 F.Supp.2d at 117. "Instead, a collective action has only two threshold requirements: the plaintiff must show that she is similarly situated to the other members of the proposed class, and those other members must `opt in' to the proposed class." Id.
In addition to the requirements for certification, the crucial difference between class and collective actions is Rule 23's opt-out procedure and the opt-in procedure used in collective actions. In Rule 23 class actions, persons who meet the class definition are automatically joined, and are subject to all the principles of preclusion that come with participation in the case, unless they affirmatively opt out. See Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir.2010); McElmurry v. U.S. Bank Nat'l Assoc., 495 F.3d 1136, 1139 (9th Cir.2007). In FLSA collective actions, on the other hand, "no employee shall be a party plaintiff ... unless he gives his consent in writing and such consent is filed in the court." 29 U.S.C. § 216(b). "This opt-in language was added by Congress in order to limit the number and type of plaintiffs who could join collective actions." Chase v. AIMCO Properties, L.P., 374 F.Supp.2d 196, 199 (D.D.C.2005). The opt-in requirement helps "`prevent large group actions,
B. The 2015 DCMWRA
The DCMWRA used to contain opt-in and written-consent language identical to the FLSA. The statute formerly provided, in relevant part, that
D.C. Code § 32-1012(b) (2001). The statute now provides that
D.C. Code § 32-1308(a)(1) (2015).
As can be seen, this amendment removed the sentence setting out the opt-in and written-consent procedures for group actions under the DCMWRA. It also amended the wording regarding who may bring an action, providing that the employees may "designate an agent or representative" to maintain an action on their behalf. See id. Finally, the 2015 amendments added two subsections to this provision which help define what it means for employees to be "similarly situated":
Id. § 32-1308(a)(2)-(3).
As the Court observed in its last opinion, this change in statutory text undermines the notion that collective actions are still permitted under the DCMWRA. Vasquez, 2016 WL 1559131, at *4. "Without opt-in
No Court has squarely addressed the effect of the 2015 DCMWRA amendments. As the Court's prior opinion noted, in both Eley and Rivera the Courts declined to address the question without specific argument on it, which the plaintiffs in those cases — like Plaintiffs here — had failed to provide. Vasquez, 2016 WL 1559131, at *4. A renewed search of the case law surrounding the DCMWRA reveals that no Court has considered the topic since this Court did in April. As such, the Court writes on a clean slate.
C. The Parties' Arguments
Plaintiffs contend that the amended text of the DCMWRA permits both opt-in and opt-out group actions. Mot. at 2. Plaintiffs argue that the prior text of the statute "was formerly phrased as a prohibition or limitation" in that it did not permit collective actions unless each class member opted in by written consent. Id. According to Plaintiffs, in changing the law, the D.C. Council adopted "permissive language" which leaves open all forms of group actions, including both opt-in (collective) and opt-out (class) versions of such actions. Id.
In support of its interpretation of the amended text, Plaintiffs point to the legislative history of the 2015 DCMWRA amendments. Id. at 3. Plaintiffs claim that there is no indication that the legislators sought to remove the strong protection an FLSA-type collective action provides for workers in the District of Columbia. Id. Instead, the Council endeavored to strengthen worker protection laws and "`mak[e] it easier for workers to collect awards from businesses that steal [workers'] wages.'" Id. (quoting Apr. 10, 2014 Committee Report on Bill 20-671, the "Wage Theft Prevention Amendment Act of 2014").
Plaintiffs do not cite any language in the Committee Report on the amendments indicating that the legislators intended to preserve collective actions. See id. Rather, Plaintiffs argue the converse, claiming that "[t]here was no reported suggestion of removing the right to engage in an opt-in collective action." Id. Plaintiffs contend that it would be illogical for the Council to express an intent to strengthen wage laws and simultaneously remove one of the law's strongest features. Id. at 5. In light of the Council's pro-worker intent, Plaintiffs argue, it should not be assumed, absent some clear indication in the legislative history, that the Council intended to remove collective actions from the DCMWRA scheme. Id. at 5-6.
Finally, Plaintiffs compare the rigorous requirements of Rule 23 class actions with the more lenient standards for FLSA-type collective actions. Id. at 4-5. Plaintiffs note that Congress acted intentionally when it created less-restrictive means for workers to pursue wage claims on a group basis. Id. at 4. Further, Plaintiffs complain that meeting the requirements of Rule 23 would be particularly difficult for groups of
Defendant Grunley responds that the removal of the opt-in and written-consent procedures language from the text of the DCMWRA evinces a clear intent to remove collective actions from the statute. Grunley Opp. at 4. Moreover, in Grunley's view, "[t]he `opt-in' and `opt-out' procedures inherent in collective actions and class actions, respectively, are mutually exclusive." Id. at 5. Grunley cites numerous cases for the proposition that collective and class actions are fundamentally divergent and, as a result, the DCMWRA cannot possibly permit both at once. Id. Grunley reasons that because the DCMWRA cannot allow both opt-in and opt-out class relief simultaneously, and because the DCMWRA no longer contains opt-in procedures, Rule 23 must govern any group action under the DCMWRA. Id. at 5-6.
In fact, Grunley argues, this Court has concluded that the opposite situation — permitting pre-2015 DCMWRA claims to be brought as a Rule 23 class action — is impermissible. In Driscoll v. George Washington University, 42 F.Supp.3d 52, 60 (D.D.C.2012), the Court compared the DCMWRA opt-in procedure with the opt-out procedure in Rule 23 to determine which would control in a group claim under the pre-2015 version of the DCMWRA brought in federal court. To resolve the inconsistency between the two, the Court applied the framework for resolving federal-state conflicts implicating the Federal Rules provided in Shady Grove, 559 U.S. 393, 130 S.Ct. 1431. Driscoll, 42 F.Supp.3d at 60. The Court found, under Shady Grove, that Rule 23's opt-out procedure would abridge the "substantive" right conferred in the DCMWRA through the opt-in mechanism. Id. at 62. In other words, permitting a Rule 23 class to bring DCMWRA claims would eliminate the protections for both workers and employers that the opt-in procedure provides. Id. According to Grunley, if it was not possible under Shady Grove to allow a pre-2015 DCMWRA claim to proceed on a group basis under Rule 23, surely the converse — permitting a post-2015 DCMWRA claim to proceed as a collective action — which Plaintiffs propose here, also cannot be true. Grunley Opp. at 7-8. Grunley asserts that in the absence of special procedures, like those in FLSA, for enforcing rights on a group basis, such claims must be maintained according to the procedures in Rule 23. Id. (citing Halliwell v. A-T Solutions, 983 F.Supp.2d 1179, 1183-84 (S.D.Cal. 2013)).
Defendant Calderon joins in Grunley's opposition, but adds a few additional thoughts of its own. Calderon Opp. First, Calderon notes that Plaintiffs fail to point to any language in the legislative history showing that the D.C. Council did not intend to change DCMWRA group-action procedures through the 2015 amendments. Id. at 2. Calderon views Plaintiffs' motion as an attempt to backpedal against what the Council has done. Id. Second, Calderon argues that even if the purpose of the Council was to strengthen the DCMWRA to prevent the theft of employees' hard-earned wages, this case does not involve any purposeful deprivation of wages. Id. at 3. Instead, at worst, Calderon and Grunley were simply unaware that Garfias failed to pay Plaintiffs. Id. Thus, even legislative history supporting aggressive wage laws
Plaintiffs reply first that, in their view, opt-in and opt-out group actions are not mutually exclusive. Reply at 2-3. Second, Plaintiffs claim that the opt-in and opt-out procedures of collective and class actions, respectively, are merely procedural and, as a result, do not conflict with each other. Id. at 3-4. Finally, Plaintiffs posit that the lowered commonality and numerosity requirements for collective actions align with the D.C. Council's intent to enact strong protections for D.C. workers. Id. at 4-5.
D. The 2015 DCMWRA Eliminated Collective Actions as an Avenue for Relief
The Court finds Plaintiffs' arguments unpersuasive. It is well-settled that the Court must apply the plain text of the DCMWRA unless it is ambiguous. "[W]hen the statute's language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms." Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000). Legislative history, on the other hand, "can serve to inform the court's reading of an otherwise ambiguous text," but "it cannot lead the court to contradict the legislation itself." Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1237 (D.C.Cir.2003).
Here, the 2015 amendments to the DCMWRA eliminated the plainly worded statutory text that required opt-in and written-consent procedures for maintaining a collective action. The Court will not presume that the D.C. Council's deletion of that text was meaningless, as Plaintiffs would have it. Indeed, it is well-settled that the opt-in feature is an indispensable part of collective actions. See Jones v. Casey's General Stores, 517 F.Supp.2d 1080, 1084 (S.D.Iowa 2007) ("The requirement that potential plaintiffs `opt-in' to the collective action is the primary feature distinguishing collective actions under the FLSA from class actions that are subject to Federal Rule of Civil Procedure 23."); Lehman v. Legg Mason, Inc., 532 F.Supp.2d 726, 731 (M.D.Pa.2007) ("The `opt-in' mechanism distinguishes actions under § 216(b) from standard class actions under Federal Rule of Civil Procedure 23."); 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1807 (2007) ("Probably the most significant difference in procedure between the FLSA and Rule 23 is that the statute contains a requirement that plaintiffs desiring to be included in the litigation must `opt in' to the suit by filing a written consent with the court."). Without it, the present version of the DCMWRA looks like any other state wage and hour law that lacks a special enforcement procedure. In other words, it looks like it could support a Rule 23 class action, but lacks the key provision — opt-in — that would support a collective action.
And although the plain text of the amended 2015 DCMWRA does not prohibit opt-in collective actions, the deletion from text of the express opt-in and written-consent procedures which are integral to a collective action militates in favor of the conclusion that such procedures are no longer allowed. See Abbott v. Abbott, 560 U.S. 1, 33, 130 S.Ct. 1983, 176 L.Ed.2d 789
Plaintiff's request that this Court certify an opt-in collective action under the DCMWRA will therefore be denied. Defendant Grunley suggests in its opposition that because Plaintiffs have not met the strictures of Rule 23, the Court should deny certification of an opt-out class action at this time. Grunley Opp. at 8. Because it is clear that Plaintiffs made no effort to do so in their motion, the Court will not preemptively decide that issue. If Plaintiffs think they can make out a Rule 23 class action, they may seek certification as permitted in that Rule.
For the foregoing reasons, Plaintiffs' Motion for Conditional Certification of an Opt-In Collective Action Under the D.C. Minimum Wage Revision Act [Dkt. 48] will be