DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this Fair Labor Standards Act ("FLSA") case are motions for conditional certification of a collective action and facilitation of notice (ECF No. 41), and to seal (ECF No. 43) filed by Plaintiffs Jeffry Butler and Charles Dorsey. Also pending is a motion to seal filed by Defendants DirectSAT USA, LLC ("DirectSAT"), UniTek USA, LLC ("UniTek"), and UniTek Global Services, Inc. ("UGS"). (ECF No. 56). The issues are fully briefed, and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Plaintiffs' motion for conditional certification of a collective action and facilitation of notice will be granted in part and denied in part, as will the parties' motions to seal.
A. Factual Background
Defendant DirectSAT, a subsidiary of UniTek and UGS, provides satellite installation services to DirectTV customers throughout the country. Plaintiffs are technicians who previously installed, upgraded, and serviced DirectTV equipment at customer locations in Maryland, Virginia, and the District of Columbia. (See ECF No. 41-8) (setting forth the job description for the "technician" position).
Defendants pay their technicians "based on job or piece rates." (ECF No. 54, at 14).
Plaintiffs assert that although DirectSAT's employee handbook provides that technicians will be paid for any overtime hours worked, the company did not follow
Plaintiffs also insist that they were instructed by their general managers not to record overtime on their weekly timesheets. Mr. Butler occasionally recorded his excess hours despite this instruction, but the company regularly refused to pay him overtime. Mr. Dorsey's timesheets were returned to him for correction when he recorded more than forty hours in a given week, and he does not recall ever being paid any overtime. Both complained to management at their warehouses about this issue. In response, management informed them that "[t]here was nothing [it] could do" because the non-payment of overtime was "a corporate decision" (ECF No. 54-15, Butler Dep., at 31), and that "[t]hose were the rules, follow them or work somewhere else," (ECF No. 54-17, Dorsey Dep., at 24).
B. Procedural Background
Plaintiffs filed a complaint against Defendants on October 4, 2010, on behalf of themselves and similarly situated others.
On November 1, 2011, Plaintiffs moved for conditional certification of a collective action for DirectSAT technicians based out of the company's Waldorf and Beltsville warehouses during the past three years. (ECF No. 41).
After taking Mr. Dorsey's deposition, Defendants filed their response to Plaintiffs' motion for conditional certification. (ECF No. 54). They submitted numerous exhibits in support of their opposition and filed a motion to seal twelve of those exhibits pursuant to the confidentiality order. (ECF No. 56). Plaintiffs timely replied to Defendants' opposition. Both interim motions to seal, as well as Defendants' motion to compel discovery responses, are unopposed.
II. Motion for Conditional Certification and for Court-Facilitated Notice
"Under the FLSA, plaintiffs may maintain a collective action against their employer for violations under the act pursuant to 29 U.S.C. § 216(b)." Quinteros v. Sparkle Cleaning, Inc., 532 F.Supp.2d 762, 771 (D.Md.2008). Section 216(b) provides, in relevant part, as follows:
"This provision establishes an `opt-in' scheme, whereby potential plaintiffs must affirmatively notify the court of their intentions to be a party to the suit." Quinteros, 532 F.Supp.2d at 771 (citing Camper v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D.Md.2000)).
A. Conditional Certification Is Appropriate Because Plaintiffs Have Made a "Modest Factual Showing" that Technicians in the Waldorf and Beltsville Warehouses Are "Similarly Situated"
"Determinations of the appropriateness of conditional collective action certification... are left to the court's discretion." Id.; see also Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The threshold issue in determining whether to exercise such discretion is whether Plaintiffs have demonstrated that potential opt-in plaintiffs are "similarly situated." Camper, 200 F.R.D. at 519 (quoting 29 U.S.C. § 216(b)). "`Similarly situated' [does] not mean `identical.'" Bouthner v. Cleveland Constr., Inc., No. RDB-11-0244, 2012 WL 738578, at *4 (D.Md. Mar. 5, 2012) (citing Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001)). Rather, a group of potential FLSA plaintiffs is "similarly situated" if its members can demonstrate that they were victims of a common policy, scheme, or plan that violated the law. Mancia v. Mayflower Textile Servs. Co., No. CCB-08-0273, 2008 WL 4735344, at *3 (D.Md. Oct. 14, 2008); Quinteros, 532 F.Supp.2d at 772. To satisfy this standard, plaintiffs generally need only make a "relatively modest factual showing" that such a common policy, scheme, or plan exists. Marroquin v. Canales, 236 F.R.D. 257, 259 (D.Md.2006).
Here, Defendants assert that the court should require Plaintiffs to make a heightened showing (through use of an "intermediate standard") because the parties have completed some discovery. (ECF No. 54, at 20-22). Defendants cite several cases from other districts to support this argument, but they identify no authority for this proposition within the District of Maryland.
Id. The same concerns exist here and counsel against adoption of the intermediate standard espoused by Defendants. If Plaintiffs succeed in making only the "minimal evidentiary showing" required at this initial stage, Rawls, 244 F.R.D. at 300, their request for conditional certification of a collective action will be granted.
To meet this burden and demonstrate that potential class members are "similarly situated," Plaintiffs must set forth more than "vague allegations" with "meager factual support" regarding a common policy to violate the FLSA. D'Anna, 903 F.Supp. at 894; Bouthner, 2012 WL 738578, at *4. Their evidence need not, however, enable the court to determine conclusively whether a class of "similarly situated" plaintiffs exists, Bouthner, 2012 WL 738578, at *4, and it need not include evidence that the company has a formal policy of refusing to pay overtime, Quinteros, 532 F.Supp.2d at 772. Plaintiffs may rely on "[a]ffidavits or other means," such as declarations and deposition testimony, to make the required showing. Williams v. Long, 585 F.Supp.2d 679, 684-85 (D.Md.2008); Essame, 847 F.Supp.2d at 825, 2012 WL 762895, at *3.
Second, Mr. Butler and Mr. Green have submitted declarations attesting to the practices that Mr. Hanson described. Both assert that they worked as technicians for DirectSAT, that they were based out of the Waldorf and/or Beltsville warehouses, and that they typically worked in excess of sixty hours per week but were not compensated for all of this time. (ECF No. 41-9, at 1, 4). Additionally, Mr. Butler and Mr. Green both state that company officials directed them not to record all of the time they worked, which "meant [they] were only supposed to record the time worked from arriving on site at [their] first job until completing [their] last job of the day." (Id.). As a result, the company "caused" both Mr. Butler and Mr. Green "to work `off the clock'" performing uncompensated tasks such as preparing satellite dishes at home, pre-calling customers, planning routes, and attending warehouse meetings during ten or more hours per week. (Id. at 2, 5). These assertions suggest that technicians in the Waldorf and Beltsville warehouses were subject to a common policy, plan, or scheme that violated the FLSA. See Essame, 847 F.Supp.2d at 825, 2012 WL 762895, at *3.
Third, deposition testimony from Mr. Butler, Mr. Dorsey, and Mr. Green largely corroborates the above statements. Each testified that warehouse managers and supervisors instructed him not to record any overtime hours on his timesheets even though he routinely worked in excess of forty hours in a given week. (ECF No. 41-9, at 2-5; ECF No. 54-15, at 30; ECF No. 54-16, Green Dep., at 20; ECF No. 54-17, at 13). Indeed, both Mr. Dorsey and Mr. Green stated that their timesheets were returned to them on the infrequent occasions when they tried to record more than forty hours in a given week, with an instruction from a project administrator to adjust the number of hours to no more than forty. (ECF No. 54-16, at 21; ECF No. 54-17, at 23-24). The three technicians also testified that they were told not to record most of the pre- and post-shift work they did at home or at the warehouses, which Mr. Butler and Mr. Dorsey insisted that management either strongly encouraged or directed them to perform.
Defendants present several counterarguments in an effort to avoid conditional certification. First, they emphasize their formal policy of paying overtime and instructing all technicians to record "all time worked for payroll and benefit purposes," (ECF No. 54, at 14), and contend that there is no evidence they employed contrary informal policies in practice. "[I]t is well-settled," however, "that the promulgation of written policies, per se, is insufficient to immunize an employer from conduct that otherwise contravenes the FLSA." Essame, 847 F.Supp.2d at 828, 2012 WL 762895, at *6; see also Espenscheid v. DirectSat USA, LLC, No. 09-cv-625-bbc, 2010 WL 2330309, at *7 (W.D.Wis. June 7, 2010) (finding that Defendants' formal wage and hour policies, which complied with the FLSA, did not preclude conditional certification where there was evidence of an informal policy to deny overtime (citing 29 C.F.R. § 785.13)). Additionally, contrary to Defendants' assertions, Plaintiffs have adduced evidence that a common policy existed in the Waldorf and Beltsville warehouses to suppress overtime and to have technicians perform uncompensated pre- and post-shift work. Indeed, not only did Plaintiffs state that warehouse management instructed them not to record all of the time they worked before and after their installation jobs, they also provided a declaration from Mr. Hanson — one of those managers — largely corroborating these assertions.
Defendants also contend that the allegations made by Mr. Butler, Mr. Dorsey, and Mr. Green are dissimilar and warrant individualized treatment. They specifically highlight differences in the time periods these three individuals worked as technicians, the manner in which they recorded time on their timesheets, and the amount of time and type of tasks they performed "off the clock." (ECF No. 54, at 28-41). This argument, however, "delves too deeply into the merits of the dispute" at this initial notice stage. Essame, 847 F.Supp.2d at 826, 2012 WL 762895, at *4 (refusing to conclude that numerous dissimilarities in the plaintiffs' evidence counseled against granting conditional certification); see also, e.g., Wlotkowski v. Mich. Bell Tel. Co., 267 F.R.D. 213, 219 (E.D.Mich.2010) ("Defendant's arguments about the predominance of individualized inquiries and dissimilarities between plaintiff and other employees are properly raised after the parties have conducted discovery and can present a more detailed factual record for the court to review."); De Luna-Guerrero v. N.C. Grower's Ass'n, Inc., 338 F.Supp.2d 649, 654 (E.D.N.C. 2004) ("Differences as to time actually worked, wages actually due and hours involved are ... not significant to [the conditional certification] determination."). It also fails to recognize that "[i]ndividual circumstances are inevitably present in a collective action." Espenscheid, 2010 WL 2330309, at *4. To proceed as a collective action at this stage, Plaintiffs need only make "a modest factual showing" that they were victims of a common policy or practice that violated the FLSA. Essame, 847 F.Supp.2d at 826, 2012 WL 762895, at *4. With declarations and deposition testimony asserting that they were instructed not to record all of their pre- and post-shift work and that they did not regularly receive overtime compensation despite working more than forty hours per week, they have made that showing.
Defendants next argue that the court should deny Plaintiffs' request for conditional certification because Mr. Butler and Mr. Green's declarations are not credible and because Defendants have submitted an expert report, declarations, and testimony to contradict Plaintiffs' assertions. This argument is also without merit. As an initial matter, it is not clear that purported discrepancies between Mr. Butler and Mr. Green's declarations and deposition testimony are actually discrepancies at all. See Sjoblom v. Charter Commc'ns, LLC, 571 F.Supp.2d 961, 969-70 (W.D.Wis. 2008) (refusing to discard the plaintiffs' evidence due to inconsistencies between their declarations and deposition testimony where it appeared that the discrepancies generally resulted from the plaintiffs merely "clarifying an earlier statement"). For instance, Defendants emphasize that
Additionally, even if purported discrepancies did cast some doubt on Mr. Butler or Mr. Green's credibility, the court would not deny conditional certification on that basis alone because "credibility determinations are usually inappropriate for the question of conditional certification." Essame, 847 F.Supp.2d at 825, 2012 WL 762895, at *3 (citing Colozzi v. St. Joseph's Hosp. Health Ctr., 595 F.Supp.2d 200, 205 (N.D.N.Y.2009)). Defendants' heavy reliance on Robert Crandall's expert report, as well as declarations and testimony from current technicians and managers, to discredit Plaintiffs is, therefore, unavailing. Indeed, "[t]he fact that [Plaintiffs'] allegations are disputed by ... [D]efendants does not mean that [P]laintiffs have failed to establish a colorable basis for their claim that a class of similarly situated plaintiffs exist[s]." Quinteros, 532 F.Supp.2d at 772; Essame, 847 F.Supp.2d at 825, 2012 WL 762895, at *3 (noting that "the court does not ... resolve factual disputes" at the conditional certification stage (quoting Colozzi, 595 F.Supp.2d at 205)); Blakes v. Illinois Bell Tel. Co., No. 11 CV 336, 2011 WL 2446598, at *6 (N.D.Ill. June 15, 2011) (declining to rely on the defendant's expert report when determining whether to grant conditional certification because "the purpose of the data [in the report was] to show that Plaintiffs' declarations [were] not credible" and "credibility [was] not an appropriate stage-one consideration");
Defendants further argue that conditional certification is improper because Plaintiffs have not identified other employees who "actually desire to join the proposed collective action." (ECF No. 54, at 49). They cite numerous out-of-district cases in support of this argument. At the outset, this contention would appear to be without merit because two other technicians (Mr. Green and Mr. Baker) have sought to join this action as opt-in plaintiffs since Plaintiffs filed their motion for conditional certification.
Finally, Defendants rely heavily on a subsequent opinion from the Espenscheid court decertifying the nationwide class of DirectSAT technicians it had conditionally certified, contending that this opinion proves Plaintiffs will ultimately be unable to demonstrate that they are "similarly situated" to one another. (See ECF
Setting aside the distinct procedural postures of the cases, Defendants also fail to appreciate critical factual differences between Espenscheid and the present action. Espenscheid involved a nationwide class of more than 1,000 DirectSAT technicians, while this case involves technicians at only two DirectSAT warehouses in Maryland. In decertifying the collective action, the Espenscheid court emphasized the plaintiffs' repeated failure to submit a satisfactory trial plan addressing certain technician subclasses that the court had imposed following conditional certification. It also expressly noted that the record — which the parties had developed during subsequent discovery — demonstrated that
In the end, despite Defendants' vigorous assertions to the contrary, the evidence presented by Plaintiffs is sufficient to make the "minimal evidentiary showing" that a common policy or scheme to violate the FLSA existed in Defendants' Waldorf and Beltsville warehouses. Rawls, 244 F.R.D. at 300. This conclusion is in line with numerous cases in this district and throughout the country that have conditionally certified collective actions based on analogous circumstances. See, e.g., Essame, 847 F.Supp.2d at 825-27, 2012 WL 762895, at *3-4 (granting conditional certification where the plaintiffs presented testimony from one of the defendant's former staffing coordinators about eliminating overtime and submitted declarations that the defendant required them to work through their unpaid meal breaks); Faust, 2011 WL 5244421, at *5 (finding that the plaintiffs had made the "modest factual showing" necessary regarding an unlawful compensation policy by submitting evidence that they were "encouraged to work off the clock, [were] in fact working of the clock with their supervisor's knowledge, and [were] not being properly compensated for that time"); Espenscheid, 2010 WL 2330309, at *7-8 (conditionally certifying a nationwide class of technicians where the plaintiffs submitted affidavits from several putative class members that the defendants did not compensate them for overtime involving pre- and post-shift work and affidavits from company managers acknowledging this practice); Kautsch v. Premier Commc'ns, 504 F.Supp.2d 685, 689 (W.D.Mo.2007) (concluding that the plaintiffs, who were field service technicians, had made "a modest factual showing" that they were "similarly situated" by submitting affidavits and deposition testimony indicating that their managers directed them not to record overtime and prohibited them from recording time spent on several non-production tasks). Conditional certification pursuant to § 216(b) is, therefore, warranted for the technicians who have worked out of Defendants' Waldorf and Beltsville warehouses during the past three years.
B. Court-Facilitated Notice to Potential Opt-in Plaintiffs Is Proper
Because Plaintiffs have made a preliminary showing that technicians in the Waldorf and Beltsville warehouses are "similarly situated," notice of this action will be provided to technicians who currently work, or have worked in the past three years, out of these two locations. Plaintiffs have submitted a proposed notice form that they contend is "fair and adequate." (ECF No. 41, at 10). They request to send this notice by first-class mail and by email. They also ask that the court give potential opt-in plaintiffs ninety days from the date the notice is mailed to determine whether to join the collective action. Defendants oppose the form of the notice, the request to send notice via email, and the ninety-day opt-in period requested by Plaintiffs. Plaintiffs have not responded to any of these objections.
The district court has broad discretion regarding the "details" of the notice sent to potential opt-in plaintiffs. Lee v. ABC Carpet & Home, 236 F.R.D. 193, 202 (S.D.N.Y.2006) (citing Hoffmann-La Roche, 493 U.S. at 171, 110 S.Ct. 482). "The overarching policies of the FLSA's collective suit provisions require that the
Defendants' requests to shorten the opt-in period and to prevent Plaintiffs from notifying potential plaintiffs via email will be denied. With regard to the length of the opt-in period, Defendants' concern that a ninety-day period would result in "a never-ending certification process" is unwarranted. (ECF No. 54, at 56) (internal quotation marks omitted). Notice periods may vary, but numerous courts around the country have authorized ninety day opt-in periods for collective actions. See, e.g., Wass, 2011 WL 1118774, at *11 (denying the defendant's request to shorten the opt-in period below ninety days); Calderon v. Geico Gen. Ins. Co., No. RWT 10cv1958, 2011 WL 98197, at *2, 8-9 (D.Md. Jan. 12, 2011) (authorizing a ninety-day notice period); Pereira v. Foot Locker, Inc., 261 F.R.D. 60, 68-69 (E.D.Pa. 2009) (finding a ninety-day opt-in period to be reasonable). There is no sound reason not to do so here. With regard to the use of email to notify potential plaintiffs of this litigation, "communication through email is [now] the norm." In re Deloitte & Touche, LLP Overtime Litig., 2012 WL 340114, at *2 (S.D.N.Y. Jan. 17, 2012). Indeed, notice by email may be particularly appropriate in this case because the potential plaintiffs are technicians who are "likely to be... comfortable communicating by email." Lewis, 669 F.Supp.2d at 1128-29 (permitting notice by first-class mail and email for a class of technical support workers). Plaintiffs may, therefore, notify other potential plaintiffs of this action by first-class mail and by email using the court-approved notice appended to this memorandum opinion.
III. Motions to Seal
Both parties have also filed unopposed motions to seal. A motion to seal must comply with Local Rule 105.11, which provides:
This rule endeavors to protect the common law right to inspect and copy judicial records and documents, Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), while recognizing that competing interests sometimes outweigh the public's right of access, In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir.1984).
Before sealing any documents, the court must provide the non-moving party with notice of the request to seal and an opportunity to object. Id. This notice requirement may be satisfied by either notifying the persons present in the courtroom or by docketing the motion "reasonably in advance of deciding the issue." Id. at 234. Finally, the court should consider less drastic alternatives to sealing, such as filing redacted versions of the documents. If the court decides that sealing is appropriate, it should also provide reasons, supported by specific factual findings, for its decision to seal and for rejecting alternatives. Id. at 235.
The parties seek to seal certain exhibits in connection with their motion papers addressing conditional certification and court-facilitated notice. These exhibits, produced pursuant to a court-approved confidentiality order, include Defendants' employee handbooks and policy manual, payroll and other personnel records for Defendants' employees, a document signed by Mr. Butler acknowledging receipt of the employee handbook, a document explaining Defendants' piece-rate compensation system, and an expert report concluding that Defendants did not employ an informal policy against payment of overtime. With regard to Defendants' employee handbooks, policy manual, and personnel records, the "confidential" designation would not seem to be without basis. Indeed, Defendants emphasize that these exhibits contain proprietary business information and sensitive personnel records. Thus, the exhibits containing these items or excerpts thereof will be sealed.
The parties' requests to seal the remaining exhibits will be denied.
For the foregoing reasons, Plaintiffs' motion for conditional certification and for court-facilitated notice will be granted in part and denied in part, as will both parties' motions to seal. A separate Order will follow.
A similar conclusion is warranted here. Much like the defendant in Blakes, Defendants have submitted an expert report to demonstrate that technicians in the Waldorf and Beltsville warehouses are not "similarly situated" because there is no informal policy denying overtime compensation. In the report, Crandall compares technicians' payroll hours with the hours recorded on their vehicles' GPS devices and concludes that differences between these two records contradict Plaintiffs' claims. Yet as Plaintiffs point out, the tables of records that accompany Crandall's report reveal that the GPS devices recorded many technicians working well in excess of forty hours per week. These hours did not, however, correspond to the hours recorded on technicians' timesheets, which could suggest systematic under-reporting of hours. Additionally, the principal basis of Plaintiffs' FLSA claim is that Defendants instructed them not to record pre- and post-shift work performed at home. If this assertion is proven true, the records on which Crandall's report relies would not have captured any of this time. Accordingly, at this early stage, Defendants' expert report does not preclude certification of a collective action.
Yet even if the court found Mr. Butler's adequacy as a named plaintiff to be an "equitable consideration" at this stage, the action would nonetheless proceed. When the FedEx Ground court declined to grant conditional certification due to inadequacy of the named plaintiffs, it did so only after first concluding that neither of the original named plaintiffs was adequate. 662 F.Supp.2d at 1082. Defendants have asserted that Mr. Butler is an inadequate representative, but they make no such assertion with regard to Mr. Dorsey.
Defendants' asserted reasons for Mr. Butler's purported inadequacy are also unpersuasive. The Espenscheid court may have concluded that the members of a nationwide class of DirectSAT technicians were not "similarly situated" to one another, but it made no findings regarding whether Mr. Butler is "similarly situated" to the putative class at issue here. In addition, even if — as Defendants contend — Mr. Butler is collaterally estopped from pursuing compensation for a limited number of pre- and post-shift tasks by the Espenscheid summary judgment ruling, there are numerous other forms of pre- and post-shift work that Mr. Butler alleges he performed without compensation. Finally, the fact that Mr. Butler was employed during a different time period than Mr. Green and Mr. Dorsey and that his claims would require a three-year limitations period go to individualized inquiries and merits considerations that are inappropriate at this stage of the case. See Essame, 847 F.Supp.2d at 825-26, 2012 WL 762895, at *3.