United States District Court, D. Nevada
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).
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.
April 2015, defendant hired plaintiff as a “tier III
laborer.” 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
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.
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.
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.
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.
now moves to certify all exempt-classified project managers
and site leads as a class for the purposes of his FLSA
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).
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
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.”