MEMORANDUM AND ORDER
KEITH P. ELLISON, District Judge.
Pending before the Court is Defendants' Motion to Decertify Collective Action. For the reasons provided below, Defendants' motion, Docket No. 134, is
I. PROCEDURAL HISTORY
Plaintiff Falcon is a former Assistant Store Manager of Defendant Starbucks Corporation ("Starbucks"). In March 2005, Falcon filed a putative collective action on behalf of himself and others similarly situated pursuant to section 16(b) of the Fair Labor Standards Act (FLSA). 29 U.S.C. § 216(b). In his Amended Complaint, (Doc. No. 23), Falcon alleged that Starbucks had failed to pay him and other Assistant Store Managers (ASMs) overtime wages for all hours worked in excess of forty hours per week as required by the FLSA. 29 U.S.C. § 207.
At the first step of the two-stage process used by most district courts to determine whether putative class members are similarly situated so that they may proceed collectively, see, e.g., Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.1995); Reyes v. Texas Ezpawn, L.P., No. V-3-128, 2007 WL 101808, at *2 (S.D.Tex. Jan. 8, 2007), the Court granted Plaintiff's Motion for Conditional Class Certification (Doc. No. 53) and declined to reconsider that decision (Doc. No. 61). Accordingly, Plaintiff sent notice to 11,000 putative class members, informing "Assistant Store Managers who were employed by Starbucks at any time during the time period of January 3, 2003 and the present who were denied overtime compensation for hours worked in excess of forty (40) in a work week" of their right to participate in the lawsuit (Doc. No. 61.) 372 individuals opted to join the collective class; 17 of these opt-ins were dismissed by agreement
Defendants now bring this Motion to Decertify, arguing that collective action treatment is inappropriate because Plaintiffs are not similarly situated, the defenses to Plaintiffs' claims are individualized, and litigating these claims as a single action would be unfair to Defendants and unmanageable at trial.
II. FACTUAL BACKGROUND
Defendant Starbucks operates more than 6,500 retail stores in the United States. (Mot.Decert.4). The stores are organized into geographic districts of eight to nine stores. (Chrispell Tr. 40-60.) Each district is managed by a district manager, who reports to a regional director of operations; regional directors, in turn, report to a regional vice president, and the regional vice president reports to a division vice president. (Id.) Each store is staffed by "partners" including entry level baristas, shift supervisors, assistant store managers, and store managers. (Id. at 24.) Not every store employs an ASM. (Id.)
In October 2002, Starbucks reclassified all ASMs for purposes of the FLSA from "exempt" to "non-exempt," making all ASMs throughout the country eligible for overtime.
As part of the reclassification, Starbucks issued a new job description for all ASMs that became effective in October 2002. (Chrispell Tr. 269-74; Frampton Tr. 25-27; Deputy Tr. 11-12; Debes Ex. 23.) To "roll out" the new job description to partners, a national team selected facilitators to teach regional and district managers how to uniformly implement the description in their territories.
Starbucks had an official written policy of prohibiting off-the-clock work. (see New Hire Paperwork, Oleson Ex. 22 at 25 ("Working `off the clock' is strictly prohibited.").) The "time worked is time paid" policy is stated clearly in the company's Partner Resources Manual (Oleson Ex. 21 at 3.6). The Manual also requires partners to report any violation of the prohibition against off-the-clock work and states that managers who violate the policy will be subject to corrective action "up to and including termination of employment." (Partner Resources Manual, Oleson Ex. 21 at 3.7.) Partners who fail to report offthe-clock work are also officially subject to corrective action. (Id.) ASMs were trained on the "time worked is time paid" policy. (See, e.g., Kooyenga Tr. 29-30; Crociani Tr. 195-96.) ASMs were required to record their work by punching in and out for shifts and breaks and were officially allowed to note any unrecorded work in a "punch communication log." (See, e.g., Partner Resources Manual at 3,7; Olson Tr. at 85.) Store Managers were to make corrections from the log into the payroll system. Starbucks also provided all partners with a toll-free "Standards of Business Conduct Helpline" that allowed partners to "ask questions or report concerns," and assures partners that Starbucks "does not tolerate retaliation."
Plaintiffs allege that despite the official "time worked is time paid" policy, Starbucks managers enforced an unwritten policy of encouraging or allowing ASMs to work off the clock in order to control overtime costs. (See, e.g., Falcon Tr. 62 (stating that prohibition against off-the-clock work was "the idea but not the reality"); Carpenter Tr. 70 (stating that written policy was not enforced); Lambert Tr. 41 ("it felt as if there was ... a wink after that. Time worked equals time paid—`wink'—we all know that."); Masse Tr. 38-39 (claiming that "time worked is time paid policy" was not enforced in stores); Johnston Tr. 65 ("The policy may have been one thing on paper, but the policy in practice was completely polar opposite of the paper"); Olson Tr. 91 ("That was the best practice... at all stores ... that I've worked in: That even though Starbucks' standards are time worked equaled time paid ... that wasn't how it was."); Brantley Tr. 54 (saying he understood time worked is time paid on paper but the store manager "said things still have to be done."); Lambert Tr. 130 ([Y]ou'd be told `Time worked equals time paid' ... and that those were our mottos ... but when you actually got to the stores, it was different.... "[T]hat's Starbucks in a perfect world, but every day is not a perfect world at Starbucks and so we do what we have to do.").) Despite the new job description, Plaintiffs contend they were unable to properly complete all of their job duties in the 40 hours. (See, e.g., Huffman Tr. 117 ("40 hours was never enough time to get my specific jobs done in a week."); Johnston Tr. 95 ("[Y]ou couldn't physically get everything done in 40 hours .... It's like you can't be in two places at once. You just couldn't do it."); Good Tr. 168-70 (stating that working offthe-clock was "what it took to get the job done"); Falcon Tr. 209-10 ("I still felt that it was required of me to work these hours, not just to ... look good ... but also just to get stuff in the store done that wouldn't get done otherwise"); Chizmadia Tr. 116 (expressing frustration with District Manager who "needed us to do what needed to be done" but "demanded we not work over 40 hours a week."); Olson Tr. 124 ("You did it however you possibly could to get it done"); Crociani Tr. 95-96 ("[I]t's hard to get everything done that Starbucks asks you to do ... within a 40-hour week."); Kooyenga Tr. 77-78 (discussing difficulties of completing work within 40 hours); Spear Tr. 135-144 (stating that after the reclassification, she did not have less responsibility, it was just "now you got in trouble ... if you were there from 5:00 a.m. until 4:00 p.m."); Lambert at 45-48 (explaining that he would go over 40 hours because "it was very difficult and a lot of work to close the store and get everything done in the time that was allotted"); Brantley Tr. 65-72 (discussing job duties that he did off the clock after store manager told him that overtime hours were killing the budget); Carpenter Tr. 75-79 (explaining that she thought she could fulfill her job duties in the time she was scheduled, but noting that "there were always outside influences"); Bejarano Tr. 28-29 (testifying that she worked off-the-clock "[b]ecause there were a thousand things to do and eight hours to do it in and it was expected of me to get them done"); Fernandez Tr. 60, 125 ("I wasn't able to get all my job duties done ... in a 40-hour week.") Copeland Deck, Ex. 2, ¶ 6 ("It was next-to-impossible to accomplish all of the work that Starbucks required of me as an Assistant Store Manager without working over my scheduled 40 hours in a workweek."); Aviles Deck, Ex. 3, ¶ 4 ("It was oftentimes impossible to accomplish all the work that Starbucks required of me as an Assistant Store Manager without working over 40 hours in a workweek ....").)
Defendants maintain that the opt-in Plaintiffs are not similarly situated because there is no nationwide policy requiring ASMs to work off the clock; instead, the only official nationwide policy clearly states that employees will be paid for all hours worked. Defendants note that the deposed opt-ins did record and were paid for some overtime. (See, e.g., Opt-In Payroll Summaries, Oleson Ex. 24.) Defendants also provide affidavits from 28 ASMs in the Houston Area who testify that they were not pressured to work off-the-clock in order to meet labor budgets or to complete their duties. (See Doc. No. 146, Ex. 2-30.) Defendants have not presented direct evidence from managers or other supervisors contradicting the opt-in Plaintiffs' specific claims of off-the-clock work or time shaving.
Section 207 of the FLSA requires employers to pay all covered employees at least one and a half times their regular rate of pay for hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). An employer that violates section 207 may be held liable for the unpaid overtime hours and "an additional equal amount as liquidated damages." Id. at § 216(b). An employer must compensate employees for all work it suffers or permits. 29 U.S.C. 203(g). Management has a duty to "exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them." 29 C.F.R. § 785.13.
Section 216 of the FLSA provides that a person may maintain an action on "behalf of himself ... and other employees similarly situated. 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."
The Fifth Circuit has not specifically defined the term similarly situated, but it has upheld the use of a two-step ad hoc method for making this determination. See Mooney, 54 F.3d at 1213 (refusing to specifically endorse a particular methodology for making a class certification decision under Section 216); see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir.2001); Hipp v. Liberty Nat. Life. Ins. Co., 252 F.3d 1208, 1219 (11th Cir.2001). This Court already allowed notice to be sent to potential class members under the "fairly lenient" step one standard. See Mooney, 54 F.3d at 1214. After discovery is largely completed, the Court at step two "makes a factual determination on the `similarly situated' standard." Id. The step two standard is "less `lenient'" and at least one Circuit has concluded that the "similarities necessary to maintain a collective action under § 216(b) must extend `beyond the mere facts of job duties and pay provisions.'" Anderson v. Cagle's, Inc., 488 F.3d 945, 953 (11th Cir. 2007) (refusing to define "less lenient" and noting "the more material distinctions revealed by the evidence, the more likely the district court is to decertify the collective action") (citing White v. Osmose, Inc., 204 F.Supp.2d 1309, 1314 (M.D.Ala.2002)). Courts have repeatedly stressed that Plaintiffs must only be similarly—not identically—situated to proceed collectively. See; e.g., Hipp, 252 F.3d at 1217; Reyes, 2007 WL 101808, at *1; Hill v. Muscogee County School Dist., 2005 WL 3526669, at *2 (M.D.Ga.2005); Basco v. Wal-Mart Stores, Inc., No. Civ. A. 00-3184, 2004 WL 1497709, at *5 (E.D.La. July 2, 2004); Frank v. Capital Cities Communications, Inc., No. 80-CIV-2188-CSH, 1983 WL 643, at *2 (S.D.N.Y. Oct. 11, 1983). The decision whether to decertify a collective action is within the district court's discretion. See, e.g., Mooney 54 F.3d at 1213 ("[T]he district court's application of the [legal] standard must be reviewed for abuse of discretion"); Pendlebury v. Starbucks Coffee Co., 518 F.Supp.2d 1345, 1348-49 (S.D.Fla.2007).
At step two, courts generally consider the following factors when determining whether a lawsuit should proceed collectively: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations. See, e.g., Mooney, 54 F.3d at 1213 n. 7, 1215-16 (citing Lusardi v. Xerox Corp., 118 F.R.D. 351, 352 (D.N.J.1987)); Thiessen, 267 F.3d at 1105; Anderson., 488 F.3d at 953; Wilks v. Pep Boys, No. 3:02-0837, 2006 WL 2821700, at *3 (Sept. 26, 2006); Basco, 2004 WL 1497709, at *4.
A. Disparate Factual and Employment Settings of Plaintiffs
In briefing, Plaintiffs contend that all putative class members were affected by
Several courts have held that putative class members must show they were affected by a common policy, plan, pattern or practice in order to proceed collectively under Section 216(b) of the FLSA. See, e.g., Aguirre v. SBC Communications, Inc., No. Civ.A. H-05-3198, 2006 WL 964554, at *5 (S.D.Tex.2006) (noting that, at least at the first step, "A court may deny plaintiffs' right to proceed collectively if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice.") (citing England v. New Century Fin. Corp., 370 F.Supp.2d 504, 507 (M.D.La.2005)), Hill, 2005 WL 3526669, at *3 ("[I]f there is sufficient evidence of an employer's pattern of subjecting employees to the same improper practice, that would be sufficient to warrant a finding of similarity justifying collective adjudication."); O'Brien v. Ed Donnelly Enterprises, Inc., No. 2:04-CV-00085, 2006 WL 3483956, at *3 (S.D.Ohio Nov. 30, 2006) ("Plaintiffs must demonstrate that the Defendants had a common policy or plan in violation of the FLSA that negatively impacted the original and opt-in Plaintiffs." (internal citations omitted)); Bonilla v. Las Vegas Cigar Co., 61 F.Supp.2d 1129, 1139 n. 6 (D.Nev.1999) ("In order to be similarly situated, the action must not be distinct and specific to individual plaintiffs; rather, there must be some general policy or practice." (internal citations removed)). At least one circuit has held, however, that "a unified policy, plan, or scheme of discrimination may not be required to satisfy the more liberal `similarly situated' requirement of § 216(b)." Hipp, 252 F.3d at 1219 (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1095, 1097 (11th Cir.1996)) (discussing similarly situated requirement in an ADEA suit); see also Frank, 1983 WL 643 at *2 (refusing to decertify a collective action where plaintiffs' "specific complaints were not identical" and stressing that "to deny them class treatment would be tantamount to declaring that any employer can escape ADEA class liability so long as it discriminates against a diverse group of aged employees over a wide geographic range in a number of ways ...."). The District Court for the Southern District of Florida also recently held that the "unified policy, plan or scheme" standard "is more appropriately applied at the first stage of the analysis." Pendlebury, 518 F.Supp.2d at 1348 n. 3. Ultimately, the Court believes that, at a minimum, there must be "meaningful 'identifiable facts or legal nexus [that] bind the claims,'" Simmons v. T-Mobile, No. H-06-1820, 2007 WL 210008, at * 8 (S.D.Tex. Jan. 24, 2007) (citing Aguirre, 2006 WL 964554, at *5), so that hearing the cases together furthers the purposes of section § 216, is fair to both parties, and does not result in an unmanageable trial. See also Hill, 2005 WL 3526669, at *3 ("At the core of the `similarly situated' inquiry is the question whether the issues in the case can be adjudicated collectively."); Olivo v. GMAC Mortg. Corp., 374 F.Supp.2d 545, 548 n. 2 (E.D.Mich.2004) (noting that, at step two, the court would consider "whether certification would serve the purposes of a collective action under § 216(b), and then weigh the benefits of a collective action against the prejudice to the defendant and any judicial inefficiencies that could result
After carefully reviewing the substantial discovery completed by the parties, the Court concludes that the opt-in Plaintiffs are, in fact, similarly situated. Although the opt-ins worked at different stores under the supervision of different individuals, there is no dispute that all of the opt-ins held the same job title and worked under the exact same job description and supervision hierarchy. All were reclassified as non-exempt in October 2002, were subsequently scheduled to work no more than 40 hours per week, and were subject to the same pay provisions and written performance reviews. Furthermore, Plaintiffs have also provided significant evidence in support of their claim that all of the opt-ins either worked off-theclock or had time shaved off of their hours by Store Managers when they attempted to record all of the hours they actually worked. Finally, Plaintiffs have made a strong showing that Starbucks' general policy of requiring ASMs to perform job duties that could not easily be completed within 40 hours while, at the same time, strongly discouraging overtime after the reclassification, failing to increase labor budgets, and basing bonuses, at least in part, on labor hours created an environment that at least strongly motivated managers to commit the alleged FLSA violations. See Wilks v. Pep Boys, No. 3:02-0837, 2006 WL 2821700, at *6 (M.D.Tenn. 2006); (see also Johnston Tr. 57 (describing pressures to complete job duties within 40 hours and conflicting pressure not to work overtime as a "Catch 22")); McCutchen Tr. 139 ("[I]t seemed to be the culture. It seemed to be expected. No one expected it not to happen."); Good Tr. 198 (agreeing that off-the-clock work was his experience of the Starbucks corporate culture). This is true despite the fact that Starbucks had an official "time worked is time paid" policy. Defendants correctly note that it is not unlawful for an employer to have a policy of discouraging overtime. Where such a policy, however, in combination with other factors, leads to a consistent pattern of FLSA violations, it can support a finding that Plaintiffs are similarly situated for purposes of section 216.
Although the incentives created by Starbucks' conflicting mandates may not have led all managers nationwide to act in lockstep, see, e.g., Fernandez, Tr. at 25-26, (admitting that as a Store Manager he currently ensures that ASMs do not work off-the-clock); Huffman Tr. at 151 (acknowledging that, as Store Manager, she tried to discourage off-the-clock work), the deposition testimony supports a finding that the opt-in plaintiffs currently before the Court were, in fact, affected similarly. It would certainly not be in the interest of judicial economy to decertify a class of similarly situated plaintiffs simply because, after discovery, it becomes apparent that the alleged policy was not as uniform as plaintiffs believed at step one. An employer should not be allowed to escape class liability simply because some managers do not commit FLSA violations as long the evidence shows that there is a factual or legal nexus that binds together the claims of the opt-in plaintiffs before the Court.
That ASMs did not perform exactly the same duties off-the-clock does not undermine the conclusion that the putative class is similarly situated. All of the deposed opt-ins allege that they were not compensated for job duties they performed over 40 hours either because they worked those hours off-the-clock or because managers shaved time off of hours they reported.
Defendants also contend that the existence of a policy or practice is belied by the fact that Plaintiffs had different motives for working off-the-clock. The Court initially notes that for purposes of liability under Section 207 of the FLSA, Plaintiffs need not prove that Defendants engaged in a pattern or practice of denying unpaid overtime, nor are Plaintiffs' motives for working off-the-clock of any relevance. 29 U.S.C. 207(a)(1). The testimony about the opt-ins' motives cited to by Defendants does not undermine the Court's finding that Plaintiffs are similarly situated. First of all, several of the deposed opt-ins state that they worked off-the-clock either because a Store or District Manager directed them to or implied they should. (See, e.g., Fernandez Tr. 54-55, 58; Falcon Tr. 102-04; Brantley Tr. 65, 78-79; McCutchan Tr. 102-03; Lambert Tr. 48; Dvir Tr. 98-99; Chizmadia Tr. 99; Masse Tr. 45-46, 58-59.) The fact that some ASMs thought they would get a promotion or a higher bonus for doing so only confirms that the environment created by Starbucks' conflicting signals laid the groundwork for FLSA violations. Many opt-ins who stated that they sometimes forgot to clock-in or weren't sure that certain work was compensable also allege that when they did report all of their overtime hours, it was shaved from their paycheck.
Nor is the Court persuaded by Defendants' argument that the relatively small response to Plaintiffs notice justifies decertification because it suggests that there is no general policy or plan.
The Court recognizes some disparity in Plaintiffs' testimony regarding off-theclock hours worked at charitable or catering events. For example, at least one optin Plaintiff claims he never participated in a charitable event and that his store did not cater events, (see Brantley, Tr. at 101-02), at least two opt-ins claim they did not participate in volunteer activities (see Crociani, Tr. at 109-10; Johnston, Tr. at 137); and at least one opt-in plaintiff states that she was not requested to attend any catering events (see, e.g., Olson-Young Tr. at 163). If the only alleged nexus among the Plaintiffs was participation in charitable and catering events, these discrepancies might counsel a different result. That is not the case before the Court.
Defendants generally point to a number of district court decisions decertifying collective actions based on allegations that an employer has an unwritten policy requiring employees to work off-the-clock.
The Court recognizes that some district courts have held that a lawsuit involving allegations of an informal policy requiring off-the-clock work cannot be litigated collectively where a large number of plaintiffs were employed at many different locations and the decision to allow or require offthe-clock work was carried out by individual managers. See, e.g., West v. Border Foods, Inc., No. 05-2525, 2006 WL 1892527 (D.Minn. July 10, 2006); Johnson v. TGF Precision Haircutters, Inc., No. H-03-3641, 2005 WL 1994286, at *2, *5 (S.D.Tex. Aug. 17, 2005) (decertifying class where conditionally certified class also included two groups of employees having "quite different and distinct primary job duties" many of whom "were compensated in a fluctuating commission system"); Ray v. Motel 6 Operating, Ltd. Partnership, 1996 WL 938231, *4-5 (D.Minn.1996). This Court must respectfully disagree with the analysis in those decisions, which, of course, is not binding. It simply cannot be that an employer may establish policies that create strong incentives for managers to encourage or allow employees to work off-the-clock, and avoid a FLSA collective action because a large number of employees at a number of different stores are affected. To a certain extent, any large class of employees working for a nationwide
The Court therefore finds that there is a meaningful nexus that binds Plaintiffs' claims together and that the similarities in their claims outweigh their differences.
B. Individualized Defenses
The Court is not convinced that Defendants' defenses are so individualized that collective adjudication of this claim is unworkable. Defendants claim that individual "mini-trials" will be needed to determine whether Plaintiffs' off-the-clock activities were compensable work, whether Defendants had actual or constructive knowledge of any off-the-clock work performed by Plaintiffs, whether some of the off-the-clock work is de minimis, and whether some of the work performed at charitable events was compensable or instead was voluntary as defined by 29 C.F.R. § 785.44. The Court agrees with Plaintiffs, however, that based on the current record, these defenses can be adequately raised at a trial involving representative testimony. Courts have allowed the use of representative testimony in cases involving allegations of unpaid overtime. See, e.g., Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946); Schultz v. Capital Intern. Sec., Inc. 466 F.3d 298, 310 (4th Cir.2006); Grochowski v. Phoenix Constr., 318 F.3d 80, 88 (2d Cir.2003) ("[N]ot all employees need testify in order to prove FLSA violations or recoup backwages"); Reich v. Gateway Press, 13 F.3d 685, 701-02 (3d Cir.1994) ("Courts commonly allow representative employees to prove violations with respect to all employees."); Brennan v. General Motors Acceptance Corp., 482 F.2d 825, 829 (5th Cir. 1973) (allowing representative testimony in a case involving unpaid overtime); Thiebes v. Wal-Mart Stores, Inc., 2004 WL 1688544, at *1 (D.Or. July 26, 2004); National Electro-Coatings, Inc. v. Brock, No. C86-2188, 1988 WL 125784, at *8 (N.D.Ohio July 13, 1988) ("Courts have consistently allowed, or even required, a small number of employees to testify to establish a pattern of violations for a larger number of workers."); see also THE FAIR LABOR STANDARDS ACT 1333 (Ellen C. Kearns et al., eds.1999) (noting that it is "well settled" that "not all affected employees must testify in order to prove violations or to recoup back wages. Rather, in most cases, employees and the Secretary may rely on representative testimony"). In Wilks, the district court refused to decertify an off-the-clock collective action based on individualized defenses, explaining:
2006 WL 2821700, at *5; see also Rodolico v. Unisys Corp., 199 F.R.D. 468, 484 (E.D.N.Y.2001) ("[S]tanding alone, the prospect of individual defenses should not defeat authorization of a collective action...."). The Court similarly finds that Defendants will be allowed to raise all of its
C. Fairness and Procedural Considerations
The Court is quite persuaded that fairness considerations militate in favor of allowing this lawsuit to proceed collectively. Decertifying this class would be contrary to both of the purposes of Section 216 of the FLSA. First, given the substantial similarity of the putative class members' claims, it certainly would not be in the interest of judicial economy to require the claims to be adjudicated in 355 individual trials. Furthermore, the FLSA is a remedial statute, see, e.g., Reich v. Circle C. Investments, Inc., 998 F.2d 324, 329 (5th Cir.1993) (recognizing FLSA's remedial purposes); Prickett, 349 F.3d at 1296 ("FLSA is a remedial statute that has been construed liberally to apply to the furthest reaches consistent with congressional direction." (internal citations removed)), and the Supreme Court has acknowledged that Congress intended to give "plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources," Hoffmann, 493 U.S. at 170, 110 S.Ct. 482. As the district court in Bradford v. Bed Bath and Beyond noted, plaintiffs can "hardly be expected to pursue these small claims individually, so there is little likelihood that their rights will be vindicated in the absence of a collective action." 184 F.Supp.2d 1342, 1351 (N.D.Ga.2002); see also' Pendlebury, 518 F.Supp.2d at 1363 (noting that "Defendant's suggestion that few Plaintiffs would re-file is the precise reason Congress authorized class action treatment for these types of cases."). Although the remedial nature of the FLSA, standing alone, does not justify allowing a case to proceed collectively, it does at least suggest that a close call as to whether Plaintiffs are similarly situated should be resolved in favor of certification.
Although Defendants urge that collective adjudication of this claim might impinge on their due process rights, the Court must balance those rights with the due process owed to Plaintiffs. See, e.g., Wilks, 2006 WL 2821700, at *8 ("Although the defendant contends that decertification is necessary to protect its due process rights ... these rights must be balanced with the rights of the plaintiffs") (citing Glass v. IDS Financial Services, Inc., 778 F.Supp. 1029, 1081-82 (D.Minn.1991)). The Court therefore concludes that fairness considerations support a decision to not decertify this action.
Finally, the Court recognizes that a collective action involving widespread off-theclock claims may involve a large number of fact witnesses and that the location of the trial in Texas may require several of those witnesses to travel. The Court believes, nevertheless, that this case will be manageable at trial. If, at any time, the Court reaches the conclusion that Plaintiffs' claims or Defendants' defenses cannot be adequately raised through representative testimony or that trial will be too unwieldy for the jury, the Court will reconsider this decision.
Defendant's motion is therefore
Defendants further note that opt-in Plaintiff Bejarano states that she sometimes forgot to clock in. (Bejarano Tr. at 49-50.) Ms. Bejarano's testimony also indicates, however, that she felt that she had to work off the clock "because there was a thousand things to do and eight hours to do it in and it was expected of me to get it done" and because she knew that logging all hours as overtime "the bottom line, it would mess us up. So it was easier for me to clock out, work an extra 20 minutes, get the store cleaned up and set it up for my next employee coming in and just eat the 20 minutes and go home." (Bejarano Tr. at 29.)