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Reese v. NPSG Global, LLC

United States District Court, D. Nevada

November 14, 2019

DEVONTE' REESE, Plaintiffs,
NPSG GLOBAL, LLC, Defendants.


         Presently before the court is plaintiff DeVonte' Reese's (“plaintiff”) motion for conditional certification and approval of Hoffman-Laroche notice pursuant to 29 U.S.C. § 216(b). (ECF No. 52). Defendant NPSG Global, LLC (“defendant”) filed a response (ECF No. 59), to which plaintiff replied (ECF No. 60).

         I. Background

         The instant action arises from defendant allegedly misclassifying certain employees as either 1099 independent contractors or salaried exempt employees. (ECF No. 52 at 5). As a result, the misclassified employees were (1) denied overtime pay and (2) paid less than minimum wage as required by the Fair Labor Standards Act (“FLSA”) and Nevada law. Id.

         In April 2015, defendant hired plaintiff as a “tier III laborer.”[1] Id. at 7. Defendant paid plaintiff $200 per day for up to twelve hours of work and $25 per hour thereafter. Id. However, plaintiff alleges that “[d]efendant frequently failed to pay [p]laintiff at the contracted rate of $25.00 per hour for hours Plaintiff worked in excess of 12 in a day, despite this being a regular occurrence.” Id. at 8. Plaintiff avers that defendant improperly characterized him and the other laborers as 1099 independent contractors instead of hourly non-exempt employees. Id.

         In January 2016, defendant promoted plaintiff to “site lead” and reclassified him as a salaried W-2 employee. Id. At most, plaintiff was paid an annual salary of $55, 000, and he was not paid for any overtime hours that he worked. Id. at 8-9. Plaintiff alleges that “[d]efendant has misclassified all other site leads it employs as salaried exempt employees, thereby unlawfully depriving them of overtime pay.” Id. at 9.

         Defendant promoted plaintiff to “project manager” in January 2017, and increased his salary to $75, 000. Id. “Plaintiff was still considered a salaried exempt employee during the entirety of his time as a project manager with Defendant, and he was never paid overtime pay despite routinely working significantly more than 40 hours in a workweek.” Id. at 10.

         Plaintiff alleges that his job duties did not change substantially over this time, despite the promotions. Id. at 7-9. As a result, plaintiff's job duties predominantly entailed manual labor regardless of his job title. Id. Plaintiff further alleges that he raised concerns and lodged grievances with his wrongful classification as a salaried employee several times. (ECF No. 1 at 6). Each time, defendant responded that there was no issue with his wages, status, pay, or hours. Id.

         Plaintiff then filed the instant case alleging six causes of action: (1) failure to pay wages in violation of the FLSA, (2) failure to pay overtime wages in violation of the FLSA, (3) failure to pay minimum wages in violation of the Nevada Constitution, (4) failure to pay wages for all hours worked in violation of Nevada law, (5) failure to pay overtime wages in violation of Nevada law, and (6) failure to pay all wages due and owing upon termination in violation of Nevada law.

         Plaintiff now moves to certify all exempt-classified project managers and site leads as a class for the purposes of his FLSA claims.[2]

         II. Legal Standard

         Under the FLSA, an employee may initiate a collective action on behalf of himself or herself and other similarly situated people. 29 U.S.C. § 216(b). Although the FLSA does not define the term “collective action, ” the Ninth Circuit held that a collective action is “an action brought by an employee or employees for and on behalf of himself or themselves and other employees similarly situated.” Gray v. Swanney-McDonald, Inc., 436 F.2d 652, 655 (9th Cir. 1971) (quoting H. R. Rep. No. 326, 80th Cong., 1st Sess. at 14) (internal quotations omitted).

         The FLSA does not require certification for collective actions; however, “certification in a § 216(b) collective action is an effective case management tool, allowing the court to control the notice procedure, the definition of a class, the cutoff date for opting-in, and the orderly joinder of parties.” Edwards v. City of Long Beach, 467 F.Supp.2d 986, 989 (C.D. Cal. 2006). “Whether to permit a collective action under the FLSA is within the court's discretion, and neither the Supreme Court nor the Ninth Circuit has defined ‘similarly situated.'” Dualan v. Jacob Transp. Servs. LLC, 172 F.Supp.3d 1138, 1144 (D. Nev. 2016) (footnote citation omitted).

         Courts in this circuit address certification for collective actions in two stages. See, e.g., Dualan, 172 F.Supp.3d 1138; Lewis v. Nevada Prop. 1, LLC, No. 2:12-CV-01564-MMD, 2013 WL 237098 (D. Nev. Jan. 22, 2013); Davis v. Westgate Planet Hollywood Las Vegas, LLC, No. 208-CV-00722-RCJ-PAL, 2009 WL 102735 (D. Nev. Jan. 12, 2009). “[T]he court must first decide, based primarily on the pleadings and any affidavits submitted by the parties, whether the potential class should be given notice of the action.” Leuthold v. Destination Am., 224 F.R.D. 462, 467 (N.D. Cal. 2004) (citations omitted). The second stage occurs “[o]nce discovery is complete and the case is ready to be tried, [when] the party opposing class certification may move to decertify the class.” Id.

         III. ...

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