United States District Court, D. Nevada
LARRY R. HICKS, District Judge.
Before the Court is Plaintiffs Tiffany Sargant, Bailey Cryderman, Huong ("Rosie") Boggs, and Jacqulyn Wiederholt's Motion for Circulation of Notice Pursuant to 29 U.S.C. § 216(b). Doc. #18. Defendants HG Staffing, LLC and MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort filed an Opposition (Doc. #19), to which Plaintiffs replied (Doc. #21).
I. Factual Background
On June 21, 2013, Sargant and Cryderman filed their original collective and class action Complaint against Defendants in the Second Judicial District Court for the State of Nevada in and for the County of Washoe. Doc. #1, Ex. A. On August 22, 2013, Defendants filed a Petition for Removal. Doc. #1. On September 16, 2013, Plaintiffs filed the operative First Amended Complaint ("FAC") before the Court, adding two new named Plaintiffs, Boggs and Wiederholt. Doc. #10. Plaintiffs allege various causes of action for unpaid wages on behalf of themselves and all similarly situated individuals under both the Fair Labor Standards Act ("FLSA") and the Nevada Revised Statutes. See Doc. #10. April 8, 2014.
On October 23, 2013, Plaintiffs moved for conditional certification of a collective action with respect to their FLSA claims for (1) failure to pay wages for all hours worked in violation of 29 U.S.C. § 201, et. seq., (2) failure to pay overtime in violation of 29 U.S.C. § 207, and (3) failure to pay overtime at the correct rate in violation of 29 U.S.C. § 207. See Doc. #18, pp. 3-4. Additionally, Plaintiffs seek an order directing that persons similarly situated to Plaintiffs be given notice of the pendency of this action and an opportunity to file written consents with the Court to join the action as party plaintiffs and for other such associated relief, including a toll of the statute of limitations. See Doc. #18, p. 1. On November 8, 2013, Defendants filed an Opposition. Doc. #19. On November 13, 2013, Plaintiffs filed an Amended Reply. Doc. #21.
II. Legal Standard
The FLSA provides that a collective action may be maintained where the claimants are "similarly situated." 29 U.S.C. § 216(b); Sarviss v. Gen. Dynamics Info. Tech., Inc., 663 F.Supp.2d 883, 902 (C.D. Cal. 2009). Claimants must opt-in to the litigation because "[n]o 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." 29 U.S.C. § 216(b). The requirements for class action certification under Federal Rule of Civil Procedure 23(a) do not apply to claims arising under the FLSA. Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977). Instead, the majority of courts in the Ninth Circuit and the District of Nevada have adopted a twostep approach to certification of collective actions pursuant to section 216(b). See Sarviss, 663 F.Supp.2d at 903 (collecting cases); see also Lewis v. Nevada Property 1, LLC, No. 2:12-cv-01564-MMD-GWF, 2013 WL 237098, at *7 (D. Nev. Jan. 22, 2013); Lucas v. Bell Trans, No. 2:08-cv-01792-RCJ-RJJ, 2010 WL 3895924, at *3-4 (D. Nev. Sept. 30, 2010); see also Newberg on Class Actions § 24:3 (4th ed. 2008) ("[m]ost courts have interpreted § 216(b) as requiring an analysis of whether plaintiffs are similarly situated' at two stages in the litigation: when notice to prospective class members is initially sought and then following discovery").
At the initial stage of the inquiry, "the court considers whether to certify a collective action and permit notice to be distributed to putative class members." Sarviss, 663 F.Supp.2d at 903 (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)). A fairly lenient standard applies and "typically results in conditional class certification' of a representative class." Lucas, 2010 WL 3895924, at *4. Specifically, "[a] named plaintiff seeking to create a § 216(b) opt-in class need only show that his/her position is similar, but not identical, to the positions held by putative class members." Lewis, 2013 WL 237098, at *7. In order to demonstrate that the proposed opt-in plaintiffs are similarly situated, a named plaintiff need only make "substantial allegations that the putative class members were subject to a single decision, policy, or plan that violated the law." Id. (citing Mooney v. Aramco Services, Co., 54 F.3d 1207, 1214 n. 8 (5th Cir. 1995)). In making a determination as to whether certification is appropriate at the initial stage, "[t]he court relies primarily on the pleadings and any affidavits submitted by the parties." Id. (quoting Davis v. Westgate Planet Hollywood Las Vegas, No. 2:08-cv-00722-RCJ-PAL, 2009 WL 102735, at *9 (D. Nev. Jan. 12, 2009)) (internal quotation marks omitted).
The second stage of the inquiry takes place at the conclusion of discovery. Sarviss, 663 F.Supp.2d at 903. At that point, courts conduct a more exacting review of whether the putative class members are "similarly situated" for purposes of certification under section 216(b). Id. Specifically, "the court makes a factual determination regarding the propriety and scope of the class.'" Davis, 2009 WL 102735, at *9 (quoting Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004)). In making its factual determination, courts consider "(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the individual plaintiffs; and (3) fairness and procedural considerations." Id. (quoting Leuthold, 224 F.R.D. at 467).
Here, Plaintiffs bring their FLSA causes of action on behalf of "[a]ll current and former non-exempt hourly paid employees who were employed by Defendants [during the relevant time period]." Doc. #10, ¶30. As to conditional certification of a collective action, Plaintiffs contend that there are "two common plan[s], policies, or practices that require notice to be sent out to other similarly situated employees: (1) Defendants' policy of requiring non-exempt hourly employees to work without being paid (i.e., off-the-clock) and (2) Defendants' policy of refusing to include commissions, piece rates, and/or other non-discretionary payments into employees' regular rate of pay for determining the correct overtime rate of pay of all overtime hours worked." Doc. #18, p. 5. In support thereof, Plaintiffs submitted sworn declarations detailing their personal experiences and observations while working at the Grand Sierra Resort ("GSR").
First, Plaintiffs submitted evidence in support of their allegation that Defendants had a policy of requiring non-exempt hourly employees to work without being paid. Specifically, "Defendants maintained a policy of requiring employees to clock in prior to their regularly schedule shifts but shaved, or rounded, the employees' hours to their ordinary start time." See, e.g., Doc. #18-3, Boggs Decl. at ¶8; Doc. #18-6, Wiederhold Decl. at ¶6; Doc. #18-5, Sargant Decl. at ¶25. Moreover, as a supervisor, Sargant had firsthand knowledge of Defendants' policies and was charged with enforcing them. Doc. #18-5, Sargant Decl. at ¶¶4, 12-13. In addition, Defendants routinely required employees to work without recording their hours in order to limit the accumulation of overtime hours. See, e.g., Doc. #18-5, Sargant Decl. at ¶¶7-8, 12-13, 22; Doc. #18-4, Cryderman Decl. at ¶¶8-9, 14, 19. Second, Plaintiffs submitted evidence that Defendants had a policy of refusing to include commissions, piece rates, and/or other non-discretionary payments into employees' regular rate of pay for determining the correct overtime rate of pay of all overtime hours worked. See, e.g., Doc. #18-5, Sargant Decl. at ¶26; Doc. #18-4, Cryderman Decl. at ¶¶2-5. To the extent Plaintiffs' allegations are based on personal observation and experience, the Court finds they are sufficient to establish that Plaintiffs' positions are similar to that of putative class members. Accordingly, the Court concludes that conditional certification of a collective action is appropriate for each of the aforementioned plans, policies, or practices.
Defendants' argument that certification should be denied for failure to comply with the grievance procedure set forth in the Collective Bargaining Agreement ("CBA") is without merit. In Barrentine v. Arkansas-Best Freight System, Inc., the Supreme Court clearly distinguished between claims "based on rights arising out of the [CBA], " resolution of which should be left to the procedures set forth in the CBA, and claims based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers." 450 U.S. 728, 737 (1981). Like the petitioners in Barrentine, "the FLSA rights [Plaintiffs] seek to assert in this action are independent of the collective-bargaining process. They devolve on [Plaintiffs] as individual workers, not as members of a collective organization." Id. at 745. Accordingly, they are not waivable or otherwise subject to the terms of the CBA. See id. at 740; see also Albertson's, Inc. v. United Food & Commercial Workers Union, 157 F.3d 758, 761 (9th Cir. 1998) (holding "employees covered by a collective bargaining agreement are entitled to take their FLSA claims to court regardless of whether those claims may also be covered by the grievance-arbitration procedure").
Moreover, Defendants' argument that certification should be denied because Plaintiffs' claims are subject to Nevada Revised Statute 608.018(3)(e), which exempts employees covered by a CBA from the generally applicable overtime requirements, is misplaced. The present Motion for Circulation of Notice concerns only Plaintiffs' FLSA claims, not Plaintiffs' Nevada wage and hour claims. As Plaintiffs gladly admit, their Nevada wage and hour claims are not subject to the "optin" procedure under the FLSA; rather, they are brought pursuant to ...