OPINION and ORDER
MICHAEL J. McSHANE, District Judge.
This Court is asked to conditionally certify plaintiffs' action as a representative collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19. Because plaintiffs have provided substantial allegations that the potential putative collective action members were together the victims of a single decision, policy, or plan, this Court finds that these members are "similarly situated" under 29 U.S.C. § 216(b). Thus, plaintiffs' Amended Motion for Conditional Collective Action Certification [#63], is GRANTED IN PART and DENIED IN PART as follows.
STANDARD OF REVIEW
The FLSA requires that all non-exempt
The term "similarly situated" is not defined by statute or within precedential case law. Chastain v. Cam, No. 3:13-cv-01802-SI, 2014 WL 3734368, at *1 (D. Or. July 28, 2014) (citations omitted). However, the majority of courts, including those within this district,
Under the first tier, also referred to as the "notice stage," this Court preliminarily determines whether the putative members are "similarly situated." Id.; see Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001). At this first tier, the Court employs a lenient standard "that typically results in certification." Margulies, 2013 WL 5593040, at *15 (citations and internal quotation marks omitted). The named plaintiffs need only produce "substantial allegations that the putative members were together victims of a single decision, policy, or ban." Thiessen, 267 F.3d at 1102 (citation and internal quotation marks omitted).
If plaintiffs meet their burden, the Court conditionally authorizes a FLSA collective action, orders that a Notice be sent to all putative collective action members, and sets a deadline for such members to join the suit by filing consents to sue. Margulies, 2013 WL 5593040, at *15; see also Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir. 2000) ("[A] district court may authorize the named plaintiffs in a FLSA collective action to send notice to all potential plaintiffs ... and may set a deadline for plaintiffs to join the suit by filing consents to sue." (citations omitted)).
The Court may reject a conditional certification where the class is too broad, or the duties of different class members are too varied. See, e.g., Mackenzie v. Kindred Hasps. E., L.L.C, 276 F.Supp.2d 1211, 1221 (M.D: Fla. 2003) (declining to certify a proposed collective action in part, because the proposed class was "overbroad"). However, a plaintiff is not required to show that his or her position is identical to the positions held by the putative class members. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208 1217 (11th Cir. 2001) (citation omitted). Under the second tier, the "decertification stage," this Court, upon motion by a defendant, applies a more stringent standard to determine whether the conditionally certified collective action should be decertified. Chastain, 2014 WL 3734368, at *2; Margulies, 2013 WL 5593040, at *15. To make this determination, this Court reviews several non-exhaustive factors, including: (1) the specific employment conditions and duties of the individual plaintiffs; (2) any defenses asserted by or available to the defendant which appear to be individual to each plaintiff; (3) fairness; (4) procedural considerations; and (5) whether plaintiff made any required filings before instituting the suit. Chastain, 2014 WL 3734368, at *2 (quoting Morden v. T-Mobile USA, Inc., No. C05-2112RSM, 2006 WL 2620320, at *2 (W.D. Wash. Sept. 12, 2006)).
BACKGROUND AND DISCUSSION
This proposed collective action arises out of alleged violations of the FLSA. The named plaintiffs (Scott, Mord, Moreno, Heflin, Simpson, and Wilson) were employed by defendant Seneca Sawmill Company ("Seneca") in Eugene, Oregon. The plaintiffs contend that they (and potentially other "similarly situated" Seneca employees) were not paid for all of the hours they worked because they were together victims of a single policy or plan of the defendant that violates the FLSA. Defendant denies the allegations and also contends that plaintiffs have not carried their burden to show that the putative members are "similarly situated" enough for FLSA conditional certification.
Ultimately, because defendant's alleged timekeeping policies were potentially applicable to all "lumber production" employees, this Court concludes that plaintiffs have made a sufficient showing that the putative class is "similarly situated" enough for conditional class certification. Although defendant's arguments against conditional certification were not persuasive, this Court does take note and acknowledges defendants' concerns that plaintiffs only established a minimal factual foundation, and when this Court is confronted with Decertification Motions following discovery, these considerations will be reviewed in light of increased knowledge and under a more stringent standard. See Goudie, 2008 WL 4628394, at *9.
On April 13, 2015, Oral Arguments regarding Plaintiffs Amended Motion to Certify the Class Conditional FLSA [#63] and associated issues were heard by this Court. Alan Leiman and Drew Johnson were present as plaintiffs' counsel. Frederick Batson was present at defendant's counsel. The Court issued the following Orders from the bench as described on the record and as further delineated by written Minute Order [#97]:
Plaintiffs' Motion to Certify the Class Conditional FLSA [#63] was GRANTED in part, as stated on the record [#97] and as further defined in this Opinion & Order, which serves as the formal decision on the motion.
In regards to the Defendant's Objections to Plaintiffs' Proposed Notice to the Putative FLSA Class [#83], the Court ordered the following for the reasons stated on the record:
As to Defendant's Objection No. 1: DENIED — The Notice may use the earlier date of August 20, 2011.
As to Defendant's Objection No.2: GRANTED — The Defendant's proposed alternative language found on page 6 of their brief [#83] shall be used in the Notice.
As to Defendant's Objection No.3: GRANTED — However, the website proposed by the Claims Administrator must be reviewed by Defendant's counsel prior to being posted in the internet.
As to Defendant's Objection No.4: GRANTED — The Defendant shall not be compelled to produce phone numbers of any current or former employees within the potential class.
As to Defendant's Objection No.5: GRANTED — The language objected to by the Defendant on page 8 of their brief [#83] shall be struck from the Notice.
As to Defendant's Objection No.6: GRANTED — The Defendant is not obligated to post notice in any public areas.
Defendant's Motions for Partial Summary Judgment Against the Claims of Plaintiff David Scott [#86], for Partial Summary Judgment Against the Claims of Plaintiff Weston Mord [#88], for Partial Summary Judgment Against the Claims of Plaintiff Simpson [#91], and for Partial Summary Judgment Against Claims by Plaintiff Kristan Wilson [#93] were all DENIED but with leave to refile later, for the reasons as stated on the record.
Defendant's Motion to Apply Intermediate Standard to Plaintiffs Motion for Conditional Certification of an FLSA Class [#24] was DENIED as moot, as it applied primarily to the Plaintiffs first Motion for Conditional Certification.
Also during the April 13, 2015 hearing, the attorneys for the parties were ordered to confer regarding the definition and scope of the potential conditional class to be notified. They were also ordered to submit a proposed case management schedule and trial date for the Court to consider during a Status Conference, which was held on April 22, 2015. [#98].
During the April 22, 2015 Status Conference, Drew Johnson was present as counsel for plaintiffs. Frederick Batson was present as counsel for defendant. The following case management schedule was agreed to by the parties and was adopted by the Court:
Defendant is to produce employee contact to Plaintiff by 5/8/2015.
Plaintiff is to mail notices by 5/22/2015.
The Opt-in deadline is 8/20/2015.
Discovery is to be completed by 2/26/2016.
Motions on Class Decertification are due by 4/15/2016.
Oral Arguments on Motions for Class Decertification will be set later.
Dispositive Motions are due are due 30 days after ruling on Class Decertification Motions.
Joint ADR Report & Pretrial Order will be due 30 days after ruling on Dispositive Motions.
Pretrial Conference is set for 10/3/2016 at 9AM in Eugene Courtroom 2.
Jury Trial is set for 10/11/2016 at 9AM in Eugene Courtroom 2 before Judge Michael McShane.
In regards to the scope and definition of the potential class, the Court ordered that all Seneca employees involved in the "production of lumber" at Seneca's Highway 99 facility would be eligible to receive a Notice and Opt-In Form, as putative members of the Conditionally Certified FLSA Class. Specifically and for the purposes of conditional class certification under the FLSA, this Court made the preliminary finding that all current and former employees of Seneca Sawmill Company ("Seneca" or "defendant") who have worked for hourly pay in a lumber production job at Seneca's Highway 99 facility at any time since August 20, 2011, and who have performed more than 40 hours of work in that job in any workweek since that date, are similarly situated as putative collective action members for this representative collective action.
The Court further Ordered during the 4/22/15 hearing as stated on the record [#98], that Seneca employees on the "Clean-Up Crew" were within the definition of employees involved in the "production of lumber" and were to be included as putative collective action members.
The Court also ordered as stated on the record, that potential putative class members are only to be contacted via email as a "back-up" plan, when contacting them via regular mail has been unsuccessful.
The Court also ordered the Plaintiffs to submit a final draft of the "Notice and Opt-In Form" to the Court via email after Defendant's counsel had an opportunity to review it.
On May 1, 2015, Plaintiffs submitted this draft "Notice and Opt-In Form" via email to the Court, reflecting the revisions previously ordered by the Court. Defense Counsel was included in the email. The email stated that all issues regarding the draft "Notice and Opt-In Form" had been resolved except for one: Plaintiffs and the Class Administrator wished to include the a footer at the bottom of every page of the Notice and Opt-In form stating, "Questions? Call toll-free 1-844-706-5089 or visit www.SenecaCollectiveAction.com." Defendant objected to the use of this footer, and argued that the toll free number and website should only be listed in the "further information" section of the Notice.
The Court now resolves this issue and Orders that the footer
For these reasons, plaintiffs' Amended Motion for Conditional Collective Action Certification [#63] is GRANTED IN PART and DENIED IN PART as described above. It is hereby ordered:
IT IS SO ORDERED.
NOTICE OF LAWSUIT AGAINST SENECA SAWMILL COMPANY
What is this?
This Notice is to inform you of a collective action against Seneca. The Court has determined that you may be similarly situated to the plaintiffs who filed the action, who are David Allen Scott, Branden Heflin, Kristan Wilson, Weston Mord, Marty Simpson, and Jesus Moreno. Therefore, the Court has ordered that this Notice be sent to you, to explain what the lawsuit is about and how to participate.
Please note that the Court has not ruled on the merits of the lawsuit. The Court has only ruled that you should be notified of the existence of the lawsuit so that you can determine whether you wish to join it.
Why am I receiving a Notice?
You are receiving this because you have been identified as a potential claimant in a collective action lawsuit, and your timely action is required if you wish to pursue your individual FLSA overtime claim as part of this lawsuit.
What do I do with this?
If you wish to join the FLSA overtime portion of the lawsuit,
This notice affects your legal rights! Please read the following information carefully.
On August 20, 2014, David Allen Scott filed a lawsuit against Seneca Sawmill Company on behalf of himself and all other current and former employees of the company who allegedly were not paid the correct amount of overtime wages due under the FLSA. On January 16, 2015, Scott was joined by the other Class Representatives in filing a First Amended Complaint. The lawsuit contends that Seneca Sawmill Company failed to pay its hourly, non-exempt lumber production employees properly in violation of both the FLSA and Oregon wage and hour laws by failing to pay time and one-half an employee's regular rate of pay for all hours worked over 40 in a workweek.
FLSA RECOVERY SOUGHT BY PLAINTIFFS AND DEFENDANT'S RESPONSE
Plaintiffs' FLSA overtime claim seeks to recover overtime wages, and liquidated damages for themselves and other current and former employees who are affected by this lawsuit.
Defendant denies Plaintiffs' contentions.
ELIGIBILITY TO PARTICIPATE
To participate in the FLSA claim included in the lawsuit, you must "opt-in" to the lawsuit. This is done by filing a Consent to Join form. The Consent to Join form is included with this Notice.
If you wish to participate in the FLSA lawsuit described above, you must sign and return the Consent to Join form, postmarked by August 6, 2015. You may also submit your form online at www.SenecaCollectiveAction.com.
You are not required to participate in the FLSA portion, or any portion of the lawsuit. You can choose to file your own lawsuit. If you choose to file your own lawsuit, you should immediately consult the attorney of your choice because time is of the essence.
WHERE TO SEND THE FORM
If you decide to join this lawsuit and to fill out the Consent to Join Form, please complete and return the form using the enclosed pre-addressed, postage-prepaid envelope to:
You may also submit your form online at
YOUR CONSENT TO JOIN FORM MUST BE POSTMARKED BY August 6, 2015 FOR YOU TO BE ELIGIBLE FOR ANY RECOVERY. THE COURT MAY REJECT CONSENT TO JOIN FORMS THAT ARE NOT SUBMITTED ON A TIMELY BASIS.
If you have any questions, you may write or telephone the attorneys at Leiman & Johnson, LLC or the Administrator at the contact numbers listed below without cost to you. You may also contact an attorney of your own choosing.
REQUIREMENTS IF YOU JOIN THE FLSA PORTION OF THE LAWSUIT
If you file a Consent To Join Form, please be advised that you may be required to participate in the discovery process. Discovery is the process whereby both sides will use to gather facts about claims and defenses raised by the parties. You may be required to answer written interrogatories (questions) under oath concerning your claim that you were not properly compensated. You may also be required to answer questions under oath at an oral deposition or to testify at trial and to travel to Eugene, Oregon, or to some other Court ordered location to do so.
Be aware that if you join the FLSA overtime portion of this lawsuit by filing the Consent To Join Farm, the Court may determine that this case will not proceed further and limit the claims that are part of the case. You will be bound by any judgment, adjudication or settlement regarding the FLSA overtime claims, whether they are favorable to you or not. Also, if you join the FLSA overtime portion of this lawsuit, you agree that the named Plaintiffs, represented by Leiman & Johnson, LLC, will act as your agents to make decisions on your behalf concerning the FLSA overtime claim part of the lawsuit.
EFFECT OF NOT JOINING FLSA OVERTIME PORTION OF THE LAWSUIT
If you choose not to join the FLSA claim that is part of this lawsuit, you are not affected by any judgment on the FLSA claims in this lawsuit. This means that if Plaintiffs prevail on the FLSA claims, you will not be entitled to recover any damages for the FLSA claims in this action. Additionally, FLSA claims are statutorily time-limited and may be barred by the passage of time if not timely filed.,
Please note: unfiled FLSA claims are subject to expiration with the passage of time.
If you join this lawsuit, federal law prohibits Defendant or its agents from taking any action against you for electing to join this lawsuit, for filing and returning the Consent To Join Form, or from exercising your rights under the law.
This notice contains only summaries of pleadings in this lawsuit. For complete information about the pleadings and claims and defenses, you may review the court filings in this lawsuit. These are public records and are available for inspection at the Wayne L. Morse United States Courthouse, 405 E. Eighth Avenue, Eugene, Oregon 97401.
This notice and its contents have been authorized by the United States District Court for the District of Oregon. The Court does not take any position regarding the merits of Plaintiffs' claims or Defendant's defenses.
DO NOT CONTACT THE COURT OR DEFENDANT WITH QUESTIONS.
IN THE UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION
CONSENT TO BECOME A PARTY PLAINTIFF
1. I hereby agree to pursue my claims against the above-named Defendant in the above-captioned lawsuit.
2. I understand and acknowledge that this lawsuit is being brought under the federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq., to secure unpaid overtime wages, liquidated damages, attorneys' fees, costs, and other relief arising out of my employment with Defendant. I hereby consent, agree, and opt-in to become a party plaintiff and to be bound by any settlement of this action or adjudication by the court.
3. I hereby designate Leiman & Johnson, LLC to represent me in the lawsuit.
To become a party plaintiff in the above-captioned lawsuit,