DONALD WALDEN JR., NATHAN ECHEVERRIA, AARON DICUS, BRENT EVERIST, TRAVIS ZUFELT, TIMOTHY RIDENOUR, and DANIEL TRACY, on behalf of themselves and others similarly situated, Plaintiffs,
STATE OF NEVADA, ex rel. DEPARTMENT OF CORRECTIONS, Defendant.
Before the court is plaintiffs Donald Walden Jr., Nathan Echeverria, Aaron Dicus, Brent Everist, Travis Zufelt, Timothy Ridenour, and Daniel Tracy’s (collectively “plaintiffs”) motion for circulation of notice pursuant to 29 U.S.C. § 216(b). Doc. #7. Defendant the State of Nevada, ex rel. the Nevada Department of Corrections (“NDOC”) filed an opposition (Doc. #28) to which plaintiffs replied (Doc. #36).
I. Factual Background
On May 12, 2014, plaintiffs filed the present collective and class action complaint against defendant NDOC. Doc. #1, Exhibit A. In their complaint, 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. Id.
On August 6, 2014, plaintiffs filed the present motion for circulation of notice directing that other persons similarly situated to plaintiffs be given notice of the pendency of this action and an opportunity to file written consents to join this action as party plaintiffs, as well as for other associated relief including a toll of the statute of limitations. Doc. #7.
II. Legal Standard
The Fair Labor Standards Act (“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 two-step 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).
At the notice stage, the court’s sole concern is whether the named-plaintiffs and the proposed opt-in plaintiffs are “similarly situated.” This standard requires nothing more than “substantial allegations that the putative class members were subject to a single decision, policy, or plan that violated the law.” Lewis, 2013 WL 237098, at *7. The issues generally considered in a Rule 23 class certification motion - numerosity, typicality, commonalty, and representativeness - are not considered on a motion to circulate notice. Rather, the court is merely deciding whether the potential class should be notified of the pending action.
Here, plaintiffs bring their FLSA claims on behalf of “[a]ll persons who were employed by Defendant as correctional officers at any time during the applicable statute of limitations period.” Plaintiffs contend that this class represents a group of similarly situated individuals who were victims of the same policy and procedure of requiring employees to perform work without compensation.
The court has reviewed the documents and pleadings on file in this matter and finds that plaintiffs have sufficiently alleged that they are “similarly situated” to the proposed opt-in plaintiffs to grant circulation of notice. Plaintiffs have sufficiently alleged that all proposed class members were subjected to a common plan, policy, or practice requiring NDOC employees to perform various activities “off-the-clock” and without compensation allegedly in violation of the FLSA. Plaintiffs further allege that NDOC enshrined this policy in regulations, operating procedures, and communications applicable to all its hourly paid correctional officer employees. These various uncompensated tasks allegedly included attending roll-call, picking up and dropping off equipment, and providing or receiving work related information and communications prior to each shift, all allegedly in violation of the FLSA. Therefore, the court shall grant plaintiffs’ motion for circulation of notice.
IV. Form of Notice
The Court’s purpose in overseeing the notification process is to ensure that notice is timely, accurate, and informative. Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 172 (1989). The United States Supreme Court has abstained from reviewing the contents of a proposed notice under the FLSA, noting that such ...