ORDER AND REASONS
FALLON, District Judge.
Before the Court is the Plaintiffs' Motion to Proceed as a Collective Action, for Tolling of the Statute of Limitations, for Court Authorized Notice, and for Disclosure of the Names and Addresses of the Potential Opt-in Plaintiffs (Rec.Doc. 60). For the following reasons, the motion is GRANTED in part and DENIED in part.
The Plaintiffs bring this complaint on behalf of themselves and all others "similarly situated" against Defendants International Catastrophe Solutions, Inc. ("ICS"); PJ Services Catastrophe Solutions, Inc. ("PJ Services"); the president of ICS and PJ Services, Corey Pitts ("Pitts"); ICS subcontractor C.L.S. Construction & Labor Services, Inc. ("C.L.S."); and C.L.S.'s president Flavio Burgos ("Burgos") for alleged violations of the overtime wage provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA"). In their complaint, filed September 27, 2006, the Plaintiffs, predominantly immigrants, state that they were recruited by the Defendants to work as manual laborers in the clean-up and restoration of various businesses along the Gulf Coast following Hurricane Katrina. Specifically, the Plaintiffs state that Defendants PJ Services and ICS contracted with businesses to provide remediation and cleaning services. The Plaintiffs allege that they were recruited and hired by subcontractors utilized by PJ Services and ICS to perform the contract work. However, the Plaintiffs state that they remained joint employees at all relevant times of ICS and/or PJ Services and the subcontractor.
The Plaintiffs allege that they and others "similarly situated" were not paid proper overtime wage for their work in excess of forty hours per week. The
The Defendants deny liability for violations of FLSA's overtime provisions. Additionally, in an opposition memorandum to the pending motion, Defendants ICS, PJ Services and Pitts (together, the "ICS Defendants") object to the Plaintiffs' proposed class definition as too broad. They also make objections to the notice form, dispute the method of notice distribution, and oppose a tolling of the statute of limitations and an extended opt-in period.
The FLSA affords workers the right to sue collectively on behalf of themselves and others "similarly situated" for violations of the Act's minimum wage provisions and overtime protections. 29 U.S.C. § 216(b). "Unlike class actions governed by Rule 23 of the Federal Rules of Civil Procedure, in which potential class members may choose to opt out of the action, FLSA collective actions require potential class members to notify the court of their desire to opt-in to the action." Anderson v. Cagle's Inc., 488 F.3d 945, 950 n. 3 (11th Cir.2007) (citing 29 U.S.C. § 216(b)); Badgett v. Texas Taco Cabana, L.P., 2006 WL 2934265, at *1 (S.D.Tex. Oct.12, 2006). District courts are provided with discretionary power to implement the collective action procedure through the sending of notice to potential plaintiffs. Lentz v. Spanky's Restaurant II, Inc., 491 F.Supp.2d 663, ___, 2007 WL 1628853, at *2 (5th Cir.2007) (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). Notice must be "timely, accurate and informative." Hoffmann-La Roche, 493 U.S. at 172, 110 S.Ct. 482.
When making the "similarly situated" inquiry and determining whether notice should be given, district courts commonly follow the "two stage" Lusardi approach, described in detail in Mooney v. Aramco Services, Co., 54 F.3d 1207, 1213-14 (5th Cir.1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).
Mooney, 54 F.3d at 1213-14 (emphasis added) (internal citations and quotations omitted).
As this case is presently at the "notice stage," the Court must make a decision whether conditional certification should be granted and whether notice of the action and right to opt-in should be given to potential class members.
At the notice stage, the plaintiff bears the burden of making a preliminary factual showing that at least a few similarly situated individuals exist. Badgett, 2006 WL 2934265, at *2; Lentz, 2007 WL 1628853, at *3 (citing Simmons v. T-Mobile USA, Inc., 2007 WL 210008, at *9 (S.D.Tex. Jan.24, 2007)). The plaintiff may satisfy his or her burden through submission of evidence in the form of pleadings, affidavits and other supporting documentation. See Badgett, 2006 WL 2934265, at *2 (quoting H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D.Tex. 1999) ("Courts who have faced the question whether movants established substantial allegations have considered factors such as whether potential plaintiffs were identified . . . whether affidavits of potential plaintiffs were submitted . . . and whether evidence of a widespread discriminatory plan was submitted. . . .")). While the standard at this stage is "not particularly stringent," Hipp v. Liberty National Life Ins. Co., 252 F.3d 1208, 1213 (11th Cir. 2001), it is by no means automatic. Badgett, 2006 WL 2934265, at *2 (stating that of 115 FLSA actions filed in district in 2005 purporting to be collective actions, only 17 were certified as such).
Badgett, 2006 WL 2934265, at *2.
In this case, the Plaintiffs rely on the allegations contained in their First Amended Complaint (Rec.Doc. 3), as well as the affidavits of all named Plaintiffs and three other individuals who have opted-in to the case, to establish that there is a group of similarly situated individuals entitled to receive notice. (Rec.Doc. 60-5, Ex. 3). In their affidavits, which are identical in language, the Plaintiffs and opt-ins state that they all worked for the Defendants in September of 2005 and were not paid proper overtime wages due to a companywide policy of mis-classifying them as independent
The ICS Defendants object to the scope of the class which the Plaintiffs ask the Court to certify. Specifically, these Defendants oppose the inclusion of potential optins who were employees of "Flavio Burgos or other subcontractors." The ICS Defendants contend that while workers hired by C.L.S. may be similarly or identically situated, the Plaintiffs present no evidence that workers hired by other subcontractors are similarly situated and were subjected to similar illegal pay schemes. The ICS Defendants claim that the affidavits submitted by the Plaintiffs are only those of persons who were recruited by C.L.S. and only performed services under the subcontract between ICS and C.L.S.
In their reply brief, the Plaintiffs argue that it is reasonable to assume that ICS enters into similar contracts with other subcontractors and would similarly negotiate that workers be paid a straight time rate. If true, the Defendants should have records of all hours, including overtime, worked by potential class members, regardless of the subcontractor. The Plaintiffs state that the main issue in litigation against the ICS Defendants will focus on whether the ICS Defendants are joint employers of the workers with the subcontractors and therefore must comply with FLSA overtime requirements. The Plaintiffs claim that "[t]he named Plaintiffs and the potential class are therefore similarly situated as it relates to the legal issues of joint employment and to the pattern or policy of the Defendants to not pay overtime wages based on their belief that they are not joint employers." (Rec.Doc. No. 67).
"In deciding whether the Plaintiff has met the requirements of . . . the `two-step approach,' this court is mindful that it, like practicing attorneys, has a responsibility to refrain from stirring up unwarranted litigation." Lentz, 2007 WL 1628853, at *3 (internal citations and quotations omitted). "Further, employers should not be unduly burdened by a frivolous fishing expedition conducted by the plaintiff at the employer's expenses." Id. However, in the present case, the Court does not find that the action presents frivolous claims.
The class is conditionally certified as follows:
(Rec.Doc. No. 60-2).
In accordance with the above, the Court orders that the Defendants produce the following information within the next thirty (30) days to Plaintiffs' counsel:
"The Court emphasizes that the record is incomplete, so this Court cannot make a definitive determination as to whether the putative class members are similarly situated." Vogt v. Tex. Instruments, Inc., 2006 WL 4660134, *3, 2006 U.S. Dist. LEXIS 67226, at *11 (N.D.Tex. Sept. 19, 2006). After initial discovery has been conducted and the potential opt-in plaintiffs file their notices of consent, the Court will consider any motion filed by the Defendants to decertify the class.
Section 216(b) imparts the district court with discretionary authority to facilitate notice to potential plaintiffs. See Hoffman, 493 U.S. at 169, 110 S.Ct. 482. The Plaintiffs submitted an initial proposed notice to potential class members explaining the existence of the case and informing them of their right to opt-in to the collective action. (Rec.Doc. 60-3, Ex.1). The ICS Defendants objected to the Plaintiffs' initial proposed notice for failing to include a statement explaining that the potential members will be entitled to no relief if the Court rules in the Defendants' favor. In support, these Defendants cite to Garza v. Chicago Transit Auth., 2001 WL 503036 (N.D.Ill. May 8, 2001), wherein the court allowed an almost identical addition to a proposed notice. The ICS Defendants further argue that the notice should include a statement of the Defendants' affirmative defenses, in addition to the summary of the Plaintiffs' claims.
The Court finds the notice is acceptable for approval, with the caveat that it should include a statement indicating that opt-in plaintiffs will not be entitled to any relief if the Court should rule in favor of the Defendants. There is no reason to disallow the ICS Defendants' request that the notice include this statement. Such a statement is legally accurate and helpful in fully explaining the situation to potential plaintiffs.
Accordingly, the Court approves the proposed revised notice with the following addition inserted after the first sentence in the section titled "Effect of Joining this Suit":
The Plaintiffs' proposed notice plan requests that notice be provided via a variety of methods. First, the Plaintiffs request a direct mailing to class members for whom Defendants can produce contact information. Second, the Plaintiffs request permission to contact consulates and embassies in the Washington D.C. metropolitan region for Brazil, Mexico, El Salvador, Guatemala, Honduras, Nicaragua, Peru and Venezuela. Third, the Plaintiffs request notice through publication in Portuguese language newspapers along the Gulf Coast and Massachusetts and Spanish and English newspapers along the Gulf Coast. Fourth, the Plaintiffs request that notice be provided through summary announcements on radio stations along the Gulf Coast and in Massachusetts. Fifth and finally, the Plaintiffs request that notice and other information be published on the internet at the website www.icsover timecase.com. The Plaintiffs believe that these steps are reasonably calculated to reach the intended audience and will cost no more than $6,000.00.
The ICS Defendants argue that the Plaintiffs and their counsel should be strictly forbidden from communicating with potential opt-in plaintiffs during the opt-in period. They contend that the Plaintiffs have not demonstrated a reasonable basis for court authorization to contact consulates and embassies or to engage in newspaper, radio, and internet advertising. They further assert that the distribution of notice should be limited to mailing of the notice and consent forms to potential plaintiffs.
Neither parties nor their counsel may communicate with any potential opt-in plaintiffs during the opt-in period unless the potential plaintiff communicates with them first and consents to further communication. See Updite v. Delta Beverage Group, Inc., 2006 WL 3718229, at *5 (W.D.La. Dec.15, 2006); Hipp v. Liberty Nat'l Life Ins. Co., 164 F.R.D. 574, 576
The Plaintiffs attached consent-tosue forms to their initial complaint (Rec Doc. 1-2), pursuant to 29 U.S.C. §§ 216 and 257. The form consists of one paragraph, written in both English and Spanish, which states that by signing the form, the opt-in authorizes the filing and prosecution in his or her name, consents to become a party plaintiff in the action, and authorizes the Plaintiffs' various attorneys to represent, to proceed, and to settle on his or her behalf and others similarly situated with regard to their collective claims.
The ICS Defendants request that the consent-to-sue form also require each potential class member to answer basic questions regarding their claim, such as the name of their employer, their dates of employment, and their employment position.
The Plaintiffs object to these Defendants' request for the inclusion of this additional information. The Plaintiffs consider the questions proposed by the ICS Defendants to be nothing more than additional discovery in the form of written interrogatories. The Plaintiffs note that these Defendants cannot point to a single case in which a court has approved a consent-to-sue form requiring plaintiffs to provide such information before they may join the case. The Plaintiffs also note that courts have recognized the need for simple and accessible consent forms where workers utilizing the forms have limited education, speak limited English or lack other resources. The Plaintiffs further assert that the Defendants should already possess this additional information under Department of Labor regulations.
The Court finds that the consent-to-sue form is sufficient as written. In Montalvo v. Tower Life Bldg., 426 F.2d 1135, 1148-49 (5th Cir.1970), the court held that the a consent form consisting of a typewritten statement requesting that "legal action be taken to secure my claim for me due me under the Fair Labor Standards Act," followed by the plaintiffs signature, sufficiently constituted written consent because it clearly established an intent to become a party plaintiff. Thus, under Fifth Circuit precedent, little more is needed than a statement indicating intent to participate and a signature, and the additional requirements proposed by the ICS Defendants are unnecessary. Accordingly, the Court approves the consent-to-sue form as provided by the Plaintiffs.
The Plaintiffs request that the Court toll the applicable statute of limitations during the pendency of the opt-in period. The ICS Defendants oppose tolling, claiming that a determination as to whether the statute of limitations should be tolled is premature at this time.
The applicable statute of limitations period under the FLSA is set forth in 29 U.S.C. § 255. The action must commence within two years after the cause of action accrued if the violation is "unwillful." Id. However, if the violation is "willful," the cause of action must be commenced
However, this limitations period is subject to tolling on equitable grounds. Hodgson v. Humphries, 454 F.2d 1279, 1283-84 (10th Cir.1972). "Evidence that would permit tolling is evidence that would show that an employer-defendant engaged in fraud or misrepresentations that induced plaintiffs to delay filing FLSA-required opt-in notices." Baldridge v. SBC Communications, Inc., 2006 WL 832517, at *1 (N.D.Tex.2006) (citing Ott v. Midland-Ross, 523 F.2d 1367, 1370 (6th Cir.1975)).
The Plaintiffs argue that tolling is appropriate where the plaintiffs were "excusably unaware of the existence of [their] cause of action" or if their injury was "inherently unknowable." Hasken v. City of Louisville, 173 F.Supp.2d 654, 661 (W.D.Ky.2001). The Plaintiffs argue that they were reasonably unaware during the relevant pay periods that they were being underpaid by the Defendants and that the Defendants failed to post notice of their rights under the FLSA, which is required under federal regulations. See 29 C.F.R. § 516.4 (requiring covered employers to "post and keep posted a notice explaining the [FLSA], as prescribed by the Wage and Hour Division [of the Department of Labor], in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy"). Moreover, the Plaintiffs state that educational and sociological factors inherent to the class affect the reasonableness of the Plaintiffs remaining ignorant of their rights.
In response, the ICS Defendants argue that since the FLSA statute of limitations will not begin barring any potential opt-in plaintiffs until September 2007, under the two year period, or until September 2008, under the three year period, the Plaintiffs request for tolling is premature and unnecessary. The ICS Defendants also argue that the Plaintiffs have not made a showing that the individual potential class members are entitled to equitable tolling, as the failure to post the FLSA notice does not, in and of itself, provide a basis for equitable tolling. Moreover, the ICS Defendants deny that they failed to provide the posted notice, and the failure of an employee to see a required posted notice does not establish that the employer did not comply with the posting requirements. See Teemac v. Henderson, 298 F.3d 452, 458 (5th Cir.2002); see also Archer v. Sullivan County, Tenn., 129 F.3d 1263, 1267, 1997 WL 720406(6th Cir.1997) (holding that employer's failure to provide required Department of Labor notice of employee's rights under FLSA does not alone provide a basis for equitable tolling).
The Court finds that a tolling of the statute of limitations is premature. "In order to take advantage of the longer
The Plaintiffs request an opt-in period of one year. They contend that a longer opt-in period is necessary in order to locate potential class members who were previously employed by the Defendants but migrated to other states. Furthermore, the Plaintiffs claim that tracking down the potential plaintiffs will be both cumbersome and time-consuming due to a language barrier.
In response, the ICS Defendants argue that the Plaintiffs' request is both unreasonable and excessive, noting that the vast majority of decisions offer an opt-in period of thirty to ninety days. The ICS Defendants contend that a shorter opt-in period is, in fact, beneficial to potential plaintiffs as it allows them to avoid statute of limitations defenses, and as a result, prevents potential opt-in plaintiffs from losing their "similarly situated" status by the creation of two classes of opt-in plaintiffs (i.e. those filing within the statute of limitations and those filing outside of the statute of limitations). According to the ICS Defendants, the fact that the Plaintiffs delayed seeking certification after filing the lawsuit is further proof that a longer opt-in period is unwarranted in this case. Lastly, these Defendants claim that the longer period will also be expensive for the parties and time-consuming for the Court.
Longer opt-in periods have been granted in cases where potential plaintiffs are hard to contact due to their migration or dispersal. Roebuck v. Hudson Valley Farms, 239 F.Supp.2d 234, 240-42 (N.D.N.Y.2002) (allowing for an opt-in period of nine months largely due to fact that potential plaintiffs had or were likely to have migrated to other places within North America and other continents). The Court believes that an opt-in period of ninety days is adequate. This period sufficiently affords the Plaintiffs the time needed to locate potential opt-in plaintiffs who have migrated to other areas, but is not so unreasonable as to be overly burdensome or excessive for the Defendants. Accordingly, proposed plaintiffs have ninety days to opt-in to the collective action by the fling of a consent-to-sue form. The ninety day opt-in period will begin to run on the date the Defendants provide a complete list of the names, addresses and dates of employment and termination of potential class members.
IT IS ORDERED that the Plaintiffs' motion to proceed as a collective action and for court-authorized notice to potential opt-in plaintiffs in this collective action under 29 U.S.C. § 216(b) is GRANTED; and
IT IS FURTHER ORDERED that the class of potential opt-in plaintiffs entitled to notice is defined as all individuals who worked or are working for Defendants PJ Services Catastrophe Solutions, Inc. and/or International. Catastrophe Solutions, Inc. (ICS) performing manual labor either directly or indirectly through Defendants C.L.S. Construction and Labor Services,
IT IS FURTHER ORDERED that the proposed revised "FLSA Notice" attached as an exhibit to the Plaintiffs' Reply to the Defendants' Memorandum in Opposition to the Plaintiffs' Motion (Rec.Doc. 67-2, Ex. 1) is approved, except that it shall include a sentence in the section titled "Effect of Joining this Suit" stating: "If the Court rules in favor of the Plaintiffs and you have sustained losses, you may be entitled to relief if you join this action. If the Court rules in favor of the Defendants, you will be entitled to no relief if you join this action"; and
IT IS FURTHER ORDERED that the consent-to-sue form attached as an exhibit to the Plaintiffs' Reply to the Defendants' Memorandum in Opposition to the Plaintiffs' Motion (Rec.Doc. 67-2, Ex. 2) is approved; and
IT IS FURTHER ORDERED that no later than thirty (30) days after the date of this Order Defendant shall produce to Plaintiffs' counsel a complete list of the names, current addresses, dates of employment, and dates of termination of all workers employed by the Defendants from August 29, 2005 to the present who fall within the above class definition; and
IT IS FURTHER ORDERED that the time period within which potential opt-in plaintiffs may opt-in is ninety (90) days; and
IT IS FURTHER ORDERED that the ninety (90) day opt-in period will begin to run on the date that the Defendant provide a complete list of the names, addresses, and dates of employment and termination of potential class members; and
IT IS FURTHER ORDERED that the tolling of the statute of limitations is denied without prejudice.