United States District Court, E.D. Louisiana
ORDER AND REASONS
the court is Plaintiff Jose Castellanos' “Motion
for Conditional Class Certification, Judicial Notice, and for
Disclosure of the Names and Addresses of the Potential Opt-In
Plaintiffs” (Rec. Doc. 60) and Defendants'
opposition thereto. (Rec. Docs. 74, 79). Further considering
oral argument received on May 1, 2017 at 10:00 a.m., IT IS
ORDERED that the motion is GRANTED. IT IS FURTHER ORDERED THAT:
1) The following class is conditionally certified for the
purposes of Plaintiffs' collective action claims: “
All employees of Saints & Santos Construction who
performed or are performing manual labor for Saints &
Santos Construction during the previous two years, January
2015 to May 2017, and who are eligible for overtime pay
pursuant to the FLSA, 29 U.S.C. § 207 and who did not
receive full overtime compensation.”
2) Parties are ordered to meet, confer, and thereafter submit
to the Court a joint proposal of notice not later than seven
(7) days after the entry of the Court's Order.
3) Defendants shall, within fourteen (14) days of the date of
this Order, provide Plaintiff's counsel with all
potential opt-in plaintiffs' names and last known mailing
4) Following submission of the notice to opt-in, Plaintiff
Consent forms must be postmarked and deposited in the U.S.
Mail on or before forty-five (45) following the first mailing
of the Notice.
5) Each form shall be marked with the date received by
counsel, and Consents to join will be treated as filed on the
date marked, so long as they are filed with the Court within
one week of the date marked.
Contractors, LLC (“Palmisano”) is a general
contractor that performed a construction project at the Ace
Hotel. (Rec. Doc. 14). Palmisano had subcontracted certain
work to Rufino's Painting and Construction, Inc.
(“Rufino's.”) (Rec. Doc. 32-2). In turn,
Rufino's contracted out a portion of the project to
Saints & Santos Construction, LLC
(“S&S.”) (Rec. Doc. 32-3). Plaintiff Jose
Castellanos alleges he was not properly compensated for
overtime while working for S&S at “various job
sites in Louisiana.” (Rec. Doc. 14).
worked alongside numerous other workers at S&S jobsites.
(Rec. Doc. 60-2). Castellanos' primary duties involved
manual labor, sanding, painting, and installing drywall.
(Rec. Doc. 60-2). Castellanos and his fellow workers, about
30 in total, had similar job duties, took similar breaks, and
averaged between 55-60 hours of work per week. (Rec. Doc.
60-2; 60-3). Through conversations, Castellanos discovered
other workers were not paid at overtime rates for hours
worked in excess of 40. (Rec. Doc. 60-2). Among these workers
include Jose Cruz who has opted-in as a Plaintiff. (Rec. Doc.
receiving a copy of the complaint, S&S assessed the
overtime payments due to workers under hire at the Ace Hotel
project and sent, through certified mail, checks for the
unpaid overtime wages. (Rec. Docs. 79-1; 79-2; 79-3; 79-4;
79-5). Some of these checks were returned as undeliverable,
others were delivered and not cashed, and some were delivered
and cashed. (Rec. Docs. 79-1; 79-2; 79-3; 79-4; 79-5).
S&S sent Castellanos a check through his counsel, but to
date he has not cashed it. (Rec. Doc. 79). Cruz was also sent
a check, but it was returned to S&S as undeliverable.
(Rec. Doc. 79-4). Plaintiff now moves to certify a
conditional class of similarly situated individuals and
provide them judicial notice of their eligibility to opt-in.
(Rec. Doc. 60).
Fair Labor Standards Act sets a general minimum wage for
employees engaged in commerce. 29 U.S.C. §206(a)(1).
Covered employers are required to compensate nonexempt
employees at overtime rates for time worked in excess of
statutorily defined maximum hours. 29 U.S.C. §207(a).
The FLSA creates a cause of action for violations of
provisions of the Act, which include the minimum wage and
overtime provisions. 29 U.S.C. §216(b).
Fair Labor Standards Act allows laborers the right to sue
collectively on behalf of themselves and others similarly
situated for overtime wage violations. 29 U.S.C.
§216(b); Hoffman La-Roche, Inc. v. Sperling,
493 U.S. 165 (1989). Unlike a class action brought under Fed.
R. Civ. Proc. 23, a collective action under the FLSA requires
potential plaintiffs to “opt in.” Mooney v.
Aramco Servs., 54 F.3d 1207, 1212 (5th Cir. 1995),
overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90, 90-91 (2003). District courts have
discretion, when appropriate, to facilitate notice to
potential plaintiffs. Hoffman-La Roche Inc., 493
U.S. at 169-170. District courts in the Fifth Circuit employ
a two-step approach to determine whether a collective action
should proceed. Boudreaux v. Schlumberger Tech.
Corp., Case No. 6:14-2267, 2015 WL 796602 at*4 (W.D. La.
Feb. 25, 2015).
first step is the notice stage, whereby the district court
assesses whether or not putative class members are given
notice and the opportunity to opt-in. Donahue v. Francis
Servs., Inc., Case No. Civ. A. 04-170, 2004 WL 1161366
at*1 (E.D. La. May 24, 2004). At this stage, it must be shown
that the named representative and members of the potential
class are similarly situated. Green v. Plantation of
Louisiana, LLC, Case No. 2:10-0364, 2010 WL 5256354 at*3
(W.D. La. Nov. 24, 2010). In addition to being similarly
situated, it must be shown there exist “substantial
allegations that putative class members were together the
victims of a single decision, policy, or plan infected by
discrimination.” Mooney, 54 F.3d at 1213-1214.
The plaintiff's burden at this stage is “not
particularly stringent.” Hipp v. Liberty National
Life Ins. Co., 252 F.3d 1208, 1213 (11th Cir. 2001). The
Fifth Circuit observed that because the court has minimal
evidence at this stage, a conditional certification is viewed
under a “fairly lenient standard.”
Mooney, 54 F.3d at 1214.
second stage, a defendant may file for a motion for
decertification after more discovery ...