COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiffs in this case allege that Defendant P & R Enterprises, Inc. violated the overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216, and the District of Columbia Minimum Wage Act Revision Act, D.C.Code § 32-1012(b), by failing to pay overtime compensation to employees for hours worked in excess of forty per week.
Defendant P & R Enterprises, Inc. operates a commercial cleaning company that provides janitorial services to many of the area's largest commercial real estate companies. Compl. ¶ 5. Plaintiffs Carlos Castillo and Carlos Flores (collectively, "Plaintiffs") were employed by Defendant as a Day Cleaner and Day Porter, respectively (the two titles refer to the types of janitorial services they performed). Compl. ¶¶ 11, 13. Plaintiffs were designated by Defendant as non-exempt from the overtime provisions of the Fair Labor Standards Act ("FLSA"), meaning that they
Defendant has approximately 760 nonexempt employees performing janitorial work in 61 buildings located in the District of Columbia. Def.'s Opp'n Ex. 1 ¶ 2 (Decl. of Carlos Sanchez). In addition to Day Cleaners and Day Porters, Defendant's employees have job titles corresponding to other cleaning activities, such as Day Maids, Floormen, Vacuum Specialists, among others. Id. ¶ 2. Despite the different titles, these employees share two basic characteristics relevant to the instant motion: they are all responsible for cleaning some portion of the commercial properties to which they are assigned, and they are all classified as nonexempt employees under the FLSA by Defendant. Compl. ¶ 17.
Plaintiffs allege that since June 2004, Plaintiffs worked more than 40 hours per work week but Defendant failed to pay them time-and-a-half compensation for the hours that exceeded 40. Compl. ¶¶ 12, 14. When Plaintiff Castillo allegedly inquired about overtime compensation, Defendant's General Manager Carlos Sanchez told him that Defendant "does not pay overtime to anyone." Pls.' Reply Ex. 1 ¶ 10 (Decl. of Carlos Castillo).
On July 2, 2007, Plaintiffs filed a Complaint in the instant case alleging that Defendant's policies denied them overtime compensation. See Compl. ¶ 18. On July 9, 2007, Plaintiffs filed the instant motion asking the Court for an order authorizing Plaintiffs to give notice of the instant suit to all similarly situated employees of Defendant, to require Defendant to provide Plaintiffs with the names and last known addresses of all similarly situated employees, and to allow notice of this lawsuit to be posted in each of Defendant's workplaces. See Pls.' Mot. at L
The FLSA authorizes a plaintiff to challenge the denial of overtime compensation on behalf of himself and any "other employees similarly situated." 29 U.S.C. § 216(b) (2007). This unique cause of action, known as a "collective action," is not subject to the provisions generally associated with class actions under Federal Rule of Civil Procedure 23 (such as numerosity, commonality, and typicality requirements). See Hunter, et al. v. Sprint Corp., 346 F.Supp.2d 113, 117 (D.D.C.2004). Although the FLSA authorizes a Plaintiff to proceed as a collective action with similarly situated employees, the class is ultimately formed only by members affirmatively "opting in" to the lawsuit. See 29 U.S.C. § 216(b) ("No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.").
Because the statute of limitations continues to run on unnamed class members' claims until they opt in to the collective action, see 29 U.S.C. 256(b), a court may certify a conditional class of putative plaintiffs prior to discovery upon an initial showing that the members of the class are similarly situated. See Hoffmann-La-Roche v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ("[s]ection 216(b)'s affirmative permission for employees to proceed on behalf of those similarly situated must grant the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure"); Cryer v. Intersolutions, Inc., Civ. A. No. 06-2032, 2007 WL 1053214 at *2, 2007 U.S. Dist. LEXIS 29339 at *5 (D.D.C. Apr. 7, 2007) ("a court may conditionally certify the collective action
Although the D.C. Circuit has not opined on the steps courts must follow to certify a conditional class under FLSA, courts in this and other districts have generally proceeded in two steps. First, plaintiffs must make a "modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Chase v. AIMCO Props., 374 F.Supp.2d 196, 200 (D.D.C. 2005) (quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)). This showing initially fulfills the statutory requirement that the putative class members be similarly situated to plaintiffs.
The instant motion relates to the first step of the certification analysis. Plaintiffs ask the Court to conditionally certify a class so notice can be sent to putative class members.
A. Similarly Situated Members
Plaintiffs propose that the Court conditionally certify a member class consisting of "all current and former nonexempt employees of Defendant since July 2004 who are or were classified in the above classifications
As a preliminary matter, the Court denies Plaintiff's motion to the extent it seeks to certify a class that includes members who are or were employed by Defendant outside of the District of Columbia. Although Plaintiff's Motion refers to employees in the "Metro-DC area," Pls.' Mot. at 6-7, Plaintiff's Complaint states that Plaintiffs are suing on behalf of themselves and a class consisting "of all persons employed by Defendant in the District of Columbia since 2004." Compl. ¶ 54. Plaintiffs cannot in the instant motion expand the scope of the proposed class beyond that which is contained in their Complaint. See DSMC, Inc. v. Convera Corp., 479 F.Supp.2d 68, 84 (D.D.C.2007) (rejecting plaintiff's attempts to amend its complaint through submissions associated with a summary judgment motion). Thus, Plaintiff's proposed class may only include employees who work or worked in the District of Columbia for Defendant. Because it also appears that such a class definition would encompass the entire subgroup Plaintiff proposes, the Court will also deny Plaintiff's request to create a sub-group within the larger proposed class.
Notwithstanding the above limitations, the Court finds that Plaintiffs have made a "modest factual showing" by demonstrating that putative class members are similarly situated to themselves. All putative class members have similar job responsibilities. See Pls.' Mot. at 6. All putative class members are also classified as non-exempt by Defendant for purposes of the FLSA. Cf. Hunter, 346 F.Supp.2d at 120 (conditionally certifying a class of nonexempt employees but excluding employees "whom [Defendant] has classified as exempt [because it] would inject into the case an additional legal question bearing on liability"). Although Defendant claims that employees cannot be similarly situated when they have "different duties" and different "job titles," the putative class members are or were employed by Defendant to clean commercial real estate buildings in Washington D.C. Def.'s Opp'n at 1. The Court agrees with Plaintiff that "[t]he fact that some employees clean lobbies while others clean restrooms . . . is irrelevant." Pls.' Reply. at 8.
In support of their motion, Plaintiffs have also submitted time sheets and pay stubs indicating that Plaintiffs were scheduled for, and worked more than, 40 hours per week, and were not compensated with overtime pay. See Pls.' Reply. Ex 2 (Decl. of Joni Jacobs, with attachments). Plaintiffs allege that "all employees are subject to uniform payroll policies, and Defendant has a centralized operation for all its non-exempt employees." Pls.' Mot. at 2. These policies and operations allegedly do not change based on the buildings where employees work. See Pls.' Reply. Ex. 1 ¶¶ 3, 4, 8, 9 (Decl. Castillo). Plaintiffs also allege Defendant's General Manager indicated that the Company "does not pay overtime to anyone." Id. ¶ 10.
While some differences exist between the members, they appear to be immaterial to the instant motion. For example, janitors working in some buildings Defendant services are subject to union representation while janitors working in other buildings are not. See Def.'s Opp'n at 10. Nevertheless, unionization does not appear to affect how Plaintiffs and other janitors perform the work in their assigned buildings, nor how their hours are submitted to payroll for compensation. See Pls.' Reply. at 11 ("the collective bargaining agreement and Defendant's employment handbook require the payment of overtime and use the same
Defendant argues that Plaintiffs have nonetheless failed to sustain their burden, citing Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 51 (3d Cir.1989) (analyzing whether the putative class members (1) worked in the same corporate department, division and location, (2) advanced similar claims, and (3) sought substantially the same form of relief). Defendant's arguments do nothing more than identify areas of factual disagreement between the Parties.
For example, Defendant argues that "there are significant differences among [putative member] employees with respect to the terms and conditions of their employment." Def.'s Opp'n at 9. Specifically, the buildings that Defendant services are each operated by a different property management company. Id. at 10. The property management company assigns a property manager to each building "who decides how many [of Defendant's] employees will work in the building, what breaks they will receive, if any, and whether or not they will be scheduled for overtime." Id. Ex. 1 ¶ 1 (Decl.Sanchez). The Property Manager's role appears to be somewhat circumscribed because Defendant also indicates that it assigns a project manager to each building as well. Id. The Defendant's Project Manager "schedules employee breaks and reviews the time cards of each employee at the building and determines how many hours of work for which they will be compensated." Id. ¶ 7. Based on these facts, Defendant surmises that the employees in the proposed class cannot be similarly situated because project and property managers oversee employees on a building-by-building basis. Def.'s Opp'n at 10.
Despite the existence of local managers, Defendant's argument does not refute Plaintiff's allegations that Defendant, not merely some intervening third-party, has a role in the determination and calculation of the compensation paid to Plaintiffs and putative class members. See Pls.' Reply at 10 (describing the process by which employee time cards are sent to Defendant's
B. Production of Names and Addresses and Posted Notice
Plaintiffs ask the Court to order Defendant to produce the names and addresses of all employees in the proposed class. Pls.' Mot at 7. The Supreme Court in Hoffmann-LaRoche authorized district courts, in their discretion, to order a defendant to produce the names and addresses of putative class members in a collective action. See Hoffmann-La Roche, 493 at 172, 110 S.Ct. 482. Other courts, including courts in this district, have relied on Hoffmann-LaRoche and ordered defendants to produce such information. See, e.g., Hunter, 346 F.Supp.2d at 121 (collecting cases). Defendant asks this Court to deny Plaintiffs' request for the production of names and addresses because "there are less intrusive means available to notify members." Opp'n at 16. Defendant also seeks to distinguish Hoffmann-LaRoche on the basis that it was decided prior to "the advent of identity theft and the rash of claims against employers for providing the personal identifying information of its employees to third parties." See Def.'s Sur-Reply. at 7.
The Court shall order Defendant to produce the names and addresses of putative class members to Plaintiffs. The Court finds this method of notice to be an efficient and effective means by which to reach current and former employees who may choose to opt in to the collection action. To alleviate Defendant's concerns about privacy, however, the Court will order the Parties to submit a properly crafted protective order to the Court for approval prior to production of the putative
In addition to the production of names and addresses, Plaintiffs request that Defendant be required to post notices of the collective action in all of its workplaces (in the same areas in which it is required to post government-required notices). Pls.' Mot. at 8. According to Plaintiffs, "[t]his will ensure that current employees receive notice of the lawsuit, even if they have not kept their addresses up to date in Defendant's records." Id. At this time, the Court shall order notices to be posted in this manner, but only to the extent that such spaces are located in (1) Defendant's offices, or (2) office spaces designated for Defendant's use in third-party buildings (assuming such office spaces are used by one or more putative class members). Defendant is not required to request any third-party to post a notice of the collective action in third-party areas not designated for Defendant's use.
C. Proposed Notice
In addition to disagreeing about the means by which to distribute notice, the parties also disagree about the content of Plaintiffs' proposed notice. Defendant's objections relate to (1) the substance of plaintiff's proposed notice (particularly whether the information contained therein is incomplete or misleading), and (2) the time given in the notice for class members to return their opt-in notices. See Def.'s Opp'n at 17-20. The Court shall refer the parties' disagreements as they relate to the proposed notice to Magistrate Judge John M. Facciola to be resolved as expeditiously as possible. See Local Civil Rule 72.2(a).
As a final matter, Plaintiffs propose sending notice to putative class members who are or were employed by Defendant since June 2004 (three years prior to the filing of Plaintiffs Complaint). Defendants, would prefer to send notice to putative class members three years prior to the date on which notice is sent. See Def.'s Opp'n at 20 ("any notice should not be sent to putative class members who have worked for [Defendant] since June 2004, but rather, for the three-year period preceding the date on which any notice is sent").
For the reasons set forth above, the Court shall GRANT a conditional class certification for all current and former non-exempt Washington D.C. employees of Defendant since July 2004 who are or were classified as a Day Porter, Day Maid, Day
The Court shall refer remaining issues concerning the contents of the class member notice to Magistrate Judge Facciola for proceedings not inconsistent with this memorandum opinion.
An appropriate Order accompanies this Memorandum Opinion.