United States District Court, E.D. Louisiana
ORDER & REASONS
the Court is Plaintiffs' motion to certify class. R. Doc.
10. Defendant responded in opposition. R. Doc. 13. The Court
heard oral argument on the motion on May 23, 2018. Having
heard the parties' arguments and reviewed the applicable
law, the Court issues this Order & Reasons.
Daniel Smith brings this FLSA action against his employer on
behalf of himself and other similarly situated employees. R.
Doc. 1. Plaintiff worked as a “Post Supervisor”
performing security guard work for Defendant Metro Security,
Inc. (“Metro Security”). R. Doc. 1 at 2.
Defendant Lloyd Jarreau is an owner and operator of Metro
Security. R. Doc. 1 at 3. Plaintiff alleges that he and
several dozen other employees were paid a weekly salary of
$455. R. Doc. 1 at 3. Plaintiff further alleges that he
worked 60 hours per week on average and over 63 hours a week
regularly. R. Doc. 1 at 3. Plaintiff claims that he was a
non-exempt employee under the FLSA and brings claims against
Defendants for 1) failure to pay overtime and 2) failure to
pay minimum wage. R. Doc. 1 at 5-6. Defendants answer the
complaint generally denying the allegations and denying that
Plaintiff is a non-exempt employee. R. Doc. 8 at 1.
Defendants also allege various affirmative defenses including
failure to state a claim and statute of limitations. R. Doc.
8 at 3.
moves for conditional certification of a collective action
under the FLSA. R. Doc. 10. Plaintiff argues that
Defendants' employees labeled Post Supervisors are
similarly situated because they had similar jobs duties and
requirements and were subjected to the same payroll policies.
R. Doc. 10-1 at 1. Plaintiff requests that notice to
potential members of the class be expedited because they lose
some of their claim with every day of delay. R. Doc. 10-1 at
8. Plaintiff also asks that Defendants be required to provide
a database of all Post Supervisors within the last three (3)
years and to post notice at its headquarters and all job
sites. R. Doc. 10-1 at 8-9. Plaintiff has submitted a
proposed notice with this motion. R. Doc. 10-1 at 10.
respond in opposition arguing that Plaintiff's complaint
and motion provide insufficient evidence to support class
certification. R. Doc. 13. Defendant argues that Plaintiff
uses only general terms to describe the alleged violations,
fails to identify individual coworkers, and does not provide
any details about alleged discussions with other potential
plaintiffs. R. Doc. 13 at 2-3. Because Plaintiff merely
summarizes his claims in general terms, Defendant argues that
conditionally certification is not appropriate. R. Doc. 13 at
has filed a supplemental declaration stating that he spoke
with another individually named Post Supervisor about Metro
Security's payment policies. This individual stated that
he did not receive overtime wages and knew that other post
supervisors also did not receive overtime wages. R. Doc.
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, 2007 WL 1628853, at
*2 (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 Fed.Appx. 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
Fed.Appx. 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,
and the opt-in plaintiffs are dismissed without prejudice.
Id. The original plaintiffs can then proceed to
trial on their individual claims. Id.
case is presently at the “notice stage, ” the
Court must make a decision whether conditional certification
should be granted and whether notice of the action and right
to opt-in should be given to potential class members. At this
point, plaintiff bears the burden of making a preliminary
factual showing that at least a few similarly situated
individuals exist and their rights were violated in similar
ways. Nunez v. Orleans Shoring, LLC, No. 16-3005,
2016 WL 3746168, at *4 (E.D. La. July 13, 2016) (citing
Banegas v. Calmar Corp., No. 15-593, 2015 WL
4730734, at *3 (E.D. La. Aug. 10, 2015)). “Although the
standard for satisfying the first step is lenient . . . the
court still requires at least substantial allegations that
the putative class members were together the victims of a
single decision, policy, or plan infected by
discrimination.” Smith v. Offshore Specialty
Fabricators Inc., No. 09-2985, 2009 WL 2046159, at *3
(E.D. La. July 13, 2009) (quoting H & R Block, Ltd.
v. Housden, 186 F.R.D. 399, 400 (E.D. Tex., 1999)
(internal quotations and citations omitted). To determine
whether plaintiffs have submitted substantial allegations of
a single plan, courts consider “whether potential
plaintiffs were identified . . . whether affidavits of
potential plaintiffs were submitted . . . and whether
evidence of a widespread discriminatory ...