United States District Court, E.D. Louisiana
GREGORY JONES, individually and on behalf of all others similarly situated,
YALE ENFORCEMENT SERVICES, INC., SECTION:
ORDER AND REASONS
JAY C. ZAINEY, District Judge.
Before the Court is a Motion for Partial Conditional Certification (Rec. Doc. 49) filed by plaintiff Gregory Jones, individually and on behalf of all others similarly situated. Defendant Yale Enforcement Services, Inc. opposes the motion. The motion, set for hearing on June 3, 2015, is before the Court on the briefs without oral argument.
On December 16, 2014, Plaintiff filed this lawsuit individually and on behalf of all others similarly situated. He alleges that his former employer, defendant Yale Enforcement Services, Inc., failed to properly compensate him and others for services provided. Plaintiff brings claims seeking to recover unpaid wages, including overtime wages, via the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA"), and state law via F.R.C.P. 23.
In the present motion, Plaintiff requests partial conditional certification on his claim that he and others similarly situated were not properly compensated by Defendant when they were required to stay at Lakeview Regional Medical Center ("LRMC"), 24 hours a day for four days, during the landfall and aftermath of Hurricane Isaac. More specifically, Plaintiff contends, via pleadings and his affidavit, that Defendant ordered him and approximately eight other individuals to report to LRMC and remain there 24 hours a day. He notes that, despite the complaints made to Defendant by both himself and at least three other co-officer employees named in his affidavit, Defendant has still not paid the employees for the additional time that they were required to remain at LRMC.
Plaintiff also requests that, if the partial conditional certification is granted, Defendant be required to provide all available contact information for such potential class members on an expedited basis.
II. Standard of Review
Class certification can be divided into a two-step process. At the first step, the "notice stage, " the Court decides whether to conditionally certify a class based only on the pleadings and on affidavits, if any. Mooney v. Aramco Srvcs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995), overruled on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Due to the minimal evidence available at this stage in the proceedings, such a determination is made using a "fairly lenient standard." Id. at 1214. If the Court does conditionally certify a class, notice is then sent to putative class members who will have an opportunity to "opt-in." Id.
The more significant test comes at the second step, after discovery has largely been completed. Id. A defendant will have an opportunity to file a motion to decertify a class, at which point the Court can make a more informed decision due to the increased amount of available evidence before it. Id.
This motion comes before the Court on the first step of this process. The lenient standard requires only substantial allegations that potential members "were together the victims of a single decision, policy, or plan...." Id. at n.8 (citations omitted); Theissen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1102-03 (10th Cir.2001). A factual basis for the allegations is needed to satisfy this first step. See Hall v. Burk, No., 2002 WL 413901, at *3 (N.D. Tex. 2002). "Unsupported assertions of widespread violations are not sufficient to meet Plaintiff's burden." Haynes v. Singer Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983). Courts require "some identifiable facts or legal nexus [that] bind the claims so that hearing the cases together promotes judicial efficiency." Barron v. Henry County Sch. Sys., 242 F.Supp.2d 1096, 1103 (M.D. Ala.2003); see also Simmons v. T-Mobile USA, Inc., 2007 WL 210008 (S.D. Tx. 2007)(stating that plaintiff must allege a common policy or plan and make a factual showing sufficient to demonstrate that he or she and potential plaintiffs together were victims of a common policy or plan that violated the law)(citations omitted).
Defendant argues that Plaintiff's motion should fail because he has not shown that his entire stay was compensable time, and thus he cannot show a common policy or plan that violated the FLSA. In support of this contention, Defendant includes the affidavit of Defendant's senior payroll administrator stating that Plaintiff was compensated for 77.75 hours of work during the week of Hurricane Isaac. Defendant also includes the affidavit of Defendant's CEO stating that Defendant was only complying with the emergency procedures initiated by LRMC. Defendant has attached as well the employee handbook decreeing sleeping on the job as a punishable offense, which, according to Defendant, makes clear that Plaintiff could not have thought such activity was part of being "on duty" and thus compensable.
Plaintiff responds that it would be inappropriate to resolve a merits-based argument at this point in the proceedings. Plaintiff argues in the alternative that Defendant's merits-based argument is incorrect as the Code of Federal Regulations extends compensable time to sleeping and other activities when the employer requires the employee to be on duty for more than 24 hours and there is no employment contract to the contrary. See 29 C.F.R. § 785.22. Plaintiff cites the case of Bingham v. Jefferson Cnty. for support, in which corrections officers were not compensated for such time when they were required to remain at the county courthouse during Hurricane Ike. Bingham v. Jefferson Cnty., no. 11-48, 2013 WL 1312563 (E.D. Tx. March 1, 2013).
Defendant replies that Bingham is distinguishable as the officers in that case were specifically on duty to transport prisoners even after their shifts ended. Id. at *11. By contrast, Defendant states that here Plaintiff has not ...