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Diaz v. USA Professional Labor, LLC

United States District Court, E.D. Louisiana

November 5, 2019

LEDIS DIAZ
v.
USA PROFESSIONAL LABOR, LLC

         SECTION: D (4)

          ORDER AND REASONS

          WENDY B. VITTER, UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiff's Motion for Conditional Certification as a Collective Action and Notice to Potential Class Members.[1] The Motion is unopposed. After considering the Motion, the record and the applicable law, for the reasons expressed below, the Motion is GRANTED as modified.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This is a case for unpaid overtime wages under the Fair Labor Standards Act (the “FLSA”). Plaintiff, Ledis Diaz, filed this action, on his behalf and on behalf of those similarly situated, against his former employer, USA Professional Labor, LLC (“USA Labor”), for its failure to pay appropriate overtime wages under the FLSA.[2]Plaintiff alleges that he was employed by USA Labor as a general laborer from approximately 2013 through January 2018, and that during that time he was not paid overtime wages despite regularly working more than 55 hours a week.[3] Plaintiff alleges that at least since July 9, 2015, USA Labor classified and paid all of its general laborers in the same manner.[4] Plaintiff further alleges that there was a common pay practice or policy concerning a class of individuals who performed the same essential job functions and duties as general laborers.[5]

         On April 9, 2019, Plaintiff filed the instant Motion, asking the Court for an Order: (1) conditionally certifying this case as a collective action; (2) approving Plaintiff's proposed Notice and Consent Form pursuant to FLSA § 216(b) in both English and Spanish; (3) requiring USA Labor to produce to Plaintiff's counsel a computer-readable data file containing all putative collective class members' names, last-known addresses, e-mail addresses, telephone numbers and dates of employment within 14 days of the date of the Order; (4) authorizing the use of text message to provide notice to putative collective class members in both English and Spanish; and (5) authorizing a 90-day time period for putative collective class members to opt-in to the lawsuit.[6] As of the date of this Order, Plaintiff's Motion is unopposed.

         II. LEGAL STANDARD

         An employee may sue his employer for violating the minimum wage and overtime provisions of the FLSA either individually or as a collective action on behalf of himself and “other employees similarly situated.”[7] Unlike a class action under Federal Rule of Civil Procedure 23, which requires putative plaintiffs to opt-out of the class, a collective action under the FLSA requires employees to affirmatively opt-in to the suit.[8] Courts have used two methods to determine whether plaintiffs are similarly situated to a proposed class, commonly referred to as the Lusardi approach and the Shushan approach.[9] The Fifth Circuit has yet to adopt either test. However, this Court has consistently applied the approach first articulated in Lusardi, [10] which is a two-step analysis consisting of a “notice stage” and a “decertification stage.”[11]

         At the notice stage, the court determines, based only on the pleadings and any affidavits that have been submitted, whether the putative collective action members should receive notice of the action.[12] “Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in ‘conditional certification' of a representative class.”[13] Thus, “At the notice stage, ‘courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan infected by discrimination.”[14] If the district court conditionally certifies the class, putative class members are given notice and the opportunity to “opt-in, ” and the action proceeds as a representative action throughout discovery.[15]

         The decertification stage is typically precipitated by a motion to decertify the class, filed by the defendant, after discovery is largely complete and the matter is ready for trial.[16] At that stage, “the court has much more information on which to base its decision, and makes a factual determination on the similarly situated question.”[17] If the district court finds that the claimants are similarly situated, the representative action proceeds to trial. However, if the district court finds that the claimants are not similarly situated, the district court decertifies the class and dismisses without prejudice the opt-in plaintiffs' claims, and the class representatives (i.e., the original plaintiffs) proceed to trial on their individual claims.[18] “Even where a motion for conditional certification is unopposed, courts still evaluate whether plaintiffs have met the required standard.”[19]

         III. ANALYSIS

         A. Conditional Certification is Warranted.

         Here, Plaintiff submitted a sworn declaration, in which he asserts that he never received 1½ times his normal rate for working over 40 hours in a week.[20] Plaintiff further asserts that he worked more than 40 hours each week for USA Labor while working as a general laborer from approximately 2013 through February 2018.[21] Plaintiff also avers that he has spoken with other general laborers who worked for USA Labor, who claim that they also have not been paid overtime for working over 40 hours a week.[22] Plaintiff names four such individuals: Noe Zuniga, Santos Salinas, Edwin Duarte and Roger Duarte.[23]

         Considering the lenient standard that district courts apply at the notice stage of the proceedings, the Court finds that the general laborers of USA Labor who have been denied earned overtime pay from July 9, 2015 through the present date are similarly situated because together they are the victims of an alleged single policy of USA Labor to decline to pay its general laborers earned overtime pay. This case does not appear to arise from circumstances purely personal to plaintiff, Ledis Diaz. Instead, it appears that the alleged policy of USA Labor would affect all of the general laborers working for USA Labor during the relevant period. Accordingly, the Court finds that this class should be conditionally certified, and potential class members should be given notice and an opportunity to opt-in to this collective action.

         B. Judicial Notice.

         Plaintiff has submitted a proposed “Notice of Collective Action Lawsuit”[24] and a proposed “Consent to Join Wage Claim Against USA Professional Labor, LLC.”[25]The Court has reviewed these documents and both appear to be appropriate. These documents are, therefore, approved. The Court also approves of Plaintiff's request to send these documents in both English and Spanish.

         C. Production of Contact Information.

         Plaintiff also seeks an Order from this Court requiring USA Labor to provide the names, last-known addresses, e-mail addresses, telephone numbers and dates of employment of the putative collective class members in “a computer-readable data file” within 14 days of the date of the Order.[26] “[T]he production of addresses and e-mail addresses is common practice, ”[27] as is the production of phone numbers.[28]Additionally, this Court has previously allowed notice to be provided by text message.[29] The Court finds that this is a case in which it may be especially difficult to give potential class members notice.[30] As such, the Court approves of Plaintiff's counsel contacting potential class members electronically by electronic mail and by telephone, including by text message. The Court also authorizes the use of text messages in both English and Spanish.

         While Plaintiff requested that this information be provided within 14 days of the date of this Order, the Court finds that additional time may be needed to collect and produce this information. Thus, USA Labor shall provide the information that Plaintiff's counsel seeks within 30 days of the date of this Order, which ...


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