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Pereira v. JRV Services, LLC

United States District Court, E.D. Louisiana

September 20, 2018

ROLANDO PEREIRA
v.
JRV SERVICES, LLC, ET AL.

         SECTION "L" (3)

          ORDER AND REASONS

         Before the Court is a Motion for Conditional Class Certification, Judicial Notice, and for Disclosure of the Names and Addresses of Potential Opt-In Plaintiffs. R. Doc. 15. Defendants JRV Services, LLC and PRA-SE Construction, LP oppose. R. Docs. 23 and 25. For the reasons that follow, the motion is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         Plaintiff Rolando Pereira (“Pereira”) brings this action under the Fair Labor Standards Act to recover overtime wages from Defendants JRV Services, LLC (“JRV”), PRA-SE Construction, LP (“PRA-SE”), and Juana Vargas (“Vargas”).

         JRV is a residential and commercial subcontractor which provides labor for construction projects, owned by Vargas. PRA-SE, a commercial construction company, engages JRV and other subcontractors to provide labor for its jobsites. Pereira alleges that he worked as a “construction laborer” at Defendants' worksites from March 2014 - March 2018. During this time, he claims that he worked some 45-54 hours per week, and that Defendants failed to pay one-and-a-half times his regular hourly rate for all hours over 40.

         II. PRESENT MOTION

         Pereira contends that he is similarly situated to other JRV workers performing manual labor for the past three years, and moves the Court to certify a class under § 216(b) of the Fair Labor Standards Act consisting of:

All individuals who worked or are working performing manual labor for JRV Services, LLC during the previous three years who worked in excess of forty hours in any work week and failed to receive premium pay, at the rate of on-an-a-half [sic] times their regular rate of pay, for all hours worked in excess of forty in a workweek.

         Pereira was first hired by JRV in 2014 to provide labor for a PRA-SE apartment renovation project in Slidell, Louisiana. He stopped working for JRV later that year, but continued to work at PRA-SE jobsites for a different subcontractor until 2017. In mid-2017, he was hired by JRV again, this time to work on the Marquis Apartments renovation project until March of 2018. He classifies his work on the Marquis Apartments project as that of a “construction worker, ” performing duties such as carpentry, reconstruction, and brick work. He claims to be “similarly situated” to the proposed class because (i) they all worked as construction workers for Defendants; (ii) they were supervised by JRV employees; (iii) they worked the same hours and took lunch at the same time; and (iv) they often worked over forty hours per week, without receiving overtime.

         In conjunction with allowing this action to proceed collectively, Pereira asks the Court to direct Defendants to provide the names, phone numbers, and last known addresses of the potential opt-in members. Pereira also asks the Court to approve a proposed notice to send to the potential opt-in plaintiffs and requests an opt-in period of ninety days.

         In opposition, Defendants argue that Pereira is not “similarly situated” to the proposed collection since he performed skilled bricklaying and carpentry work, and only worked for JRV on one project for six months during the past three years. Should the Court grant conditional certification, Defendants request that the Court direct the parties to confer on Plaintiff's proposed notice and brief the issue for the Court if an agreement cannot be reached.

         III. LAW AND ANALYSIS

         The 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).

         The Fifth Circuit recognizes two approaches to conditional certification: (i) two-step certification developed in a line of cases starting with Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), and (ii) “spurious” class certification typified by Shushan v. Univ. of Colo., 132 F.R.D. 263 (D. Colo. 1990). Portillo v. Permanent Workers, L.L.C., No. 15-30789, 2016 WL 6436839, at *2 (5th Cir. Oct. 31, 2016). The Lusardi method ...


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