United States District Court, E.D. Louisiana
ORDER & REASONS
the Court is Plaintiff's motion for conditional class
certification. R. Doc. 12. Defendants respond in opposition.
R. Doc. 13. The Court heard oral argument on the motion on
February 28, 2018. Having reviewed the parties'
memoranda, arguments, and the applicable law, the Court
issues this Order & Reasons.
Damian Horton alleges that he has worked for Defendant Global
Staffing Solutions LLC (“GSS”) since October
2017. R. Doc. 1 at 2. GSS is a Louisiana company that
provides labor for a variety of industries. R. Doc. 1 at 2.
Defendant Forrest Bethay, III is the owner, manager, and sole
member of GSS. R. Doc. 1 at 1. Plaintiff alleges that
Defendants have failed to pay him both regular and overtime
wages. R. Doc. 1 at 4. Plaintiff also alleges that nonpayment
and underpayment of wages is the general practice of
Defendants and therefore brings this suit as a collective
action under the FLSA. R. Doc. 1 at 4. Plaintiff alleges 1)
violation of the FLSA, 2) breach of implied contract or
unjust enrichment, and 3) violation of the Louisiana Payday
Law. R. Doc. 1 at 4-5. Plaintiff asks for wages, overtime,
and statutory damages. R. Doc. 1 at 4-5.
GSS timely answered the complaint. R. Doc. 9. Defendants
generally deny Plaintiff's claims. R. Doc. 9. Defendants
also offer the following defenses: failure to state a claim,
statute of limitations, ratification, failure to mitigate
damages, and good faith. R. Doc. 9. Furthermore, Defendants
allege that Plaintiff has no claim under the FLSA because he
has received all wages due. R. Doc. 9 at 3. Defendants also
assert that Plaintiff's Louisiana Payday Law claims are
preempted by the FLSA. R. Doc. 9 at 5.
asks the Court to certify the case as a collective action
under the FLSA. R. Doc. 12. Plaintiff alleges that his
complaints that he failed to receive paychecks, had delayed
paychecks, and has been misdirected by Defendants regarding
how to obtain paychecks is not unique. R. Doc. 12-2 at 3, 6.
Plaintiff alleges that other employees have also complained
about this treatment. R. Doc. 12-2 at 3, 6. Plaintiff
suggests that there is a collective of plaintiffs who are
similarly situated because they are “all hourly
non-exempt GSS employees and [were] subjected to the same pay
policies and practices, including the untimely and incomplete
payment of wages earned.” R. Doc. 12-2 at 7.
also asks that the Court approve notice to the putative
collective via regular mail, email, and text message. R. Doc.
12-2 at 7. Plaintiff further asks the Court to order
Defendants to post notices at its locations. R. Doc. 12-2 at
7. Plaintiff suggests that the Court set and opt-in deadline
of sixty (60) days after the date which notice is sent for
employees to join the suit. R. Doc. 12-2 at 9. Finally,
Plaintiff asks the Court to order Defendants to disclose
names, contact information, and employment information for
potential members of the collective within fourteen (14) days
of an order on this motion. R. Doc. 12-2 at 9-10.
respond in opposition. R. Doc. 13. Defendants argue that the
Court should not certify the class because it fails to meet
the “similarly situated” standard, is not
supported by evidence, and individual issues predominate. R.
Doc. 13. Defendant Global argues that the named Plaintiffs
are different from its regular staff because Plaintiffs were
hired for a short-term relief project. R. Doc. 13 at 3.
Defendants also argue that online reviews are not sufficient
evidence of numerosity because counsel does not have personal
knowledge of the information in these reviews. R. Doc. 13 at
9. Finally, Defendants argue that even the named Plaintiffs
complain of different issues because one alleges a delayed
paycheck and three allege not receiving a paycheck at all. R.
Doc. 13 at 11. Defendants argue that if the Court decides to
certify a class it should be limited and narrowed to those
similarly situated and with the same allegations as the named
Plaintiffs. R. Doc. 13 at 12.
LAW & ANALYSIS
FLSA provides workers the right to sue collectively on behalf
of themselves and others “similarly situated” for
violations of the Act's minimum wage provisions and
overtime protections. 29 U.S.C. § 216(b). “Unlike
class actions governed by Rule 23 of the Federal Rules of
Civil Procedure, in which potential class members may choose
to opt out of the action, FLSA collective actions require
potential class members to notify the court of their desire
to opt-in to the action.” Anderson v. Cagle's
Inc., 488 F.3d 945, 950 n.3 (11th Cir. 2007) (citing 29
U.S.C. § 216(b)). District courts have discretion to
implement the collective action procedure by sending notice
to potential plaintiffs. Lentz v. Spanky's Restaurant
II, Inc., 491 F.Supp.2d 663, 667-68 (5th Cir. 2007).
Notice must be “timely, accurate and
informative.” Hoffmann-La Roche, Inc. v.
Sperling, 493 U.S. 165, 169 (1989).
Fifth Circuit has not yet established a legal standard for
collective-action certification, but has affirmed two
different approaches. Portillo v. Permanent Workers,
L.L.C., No. 15-30789, 2016 WL 6436839, at *2 (5th Cir.
Oct. 31, 2016); Roussell v. Brinker Int'l, Inc.,
441 F. App'x 222, 226 (5th Cir. 2011); Mooney v.
Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir. 1995),
overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003). One method for certifying
collective-action claims involves a two-step “similarly
situated” test, while the other is more akin to the
standard for Rule 23 class actions. Roussell, 441 F.
App'x at 226. In the present case, this Court finds it
appropriate to apply Mooney's two-stage
approach. Mooney, 54 F.3d at 1216.
this two-step process, the first determination is made at the
so-called “notice stage.” At the notice stage,
the district court makes a decision whether notice should be
given to potential class members based on the pleadings,
affidavits, and any other evidence which has been submitted.
Id. at 1213. Because the court has minimal evidence
at this point, and plaintiffs seeking conditional
certification are not required to identify other potential
collective action members, this determination is made using a
fairly lenient standard, and typically results in
“conditional certification” of a representative
class. Id. at 1214. If the district court
“conditionally certifies” the class, putative
class members are given notice and the opportunity to
second determination typically occurs after the defendant
files a motion for “decertification” after
discovery is largely complete. Id. At this stage,
the court has substantially more evidence it can use in
deciding whether the collective action members are similarly
situated. Id. If the claimants are similarly
situated, the district court allows the representative action
to proceed to trial. Id. If the claimants are not
similarly situated, the district court decertifies the class,