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Davis v. BT Americas, Inc.

United States District Court, E.D. Virginia, Norfolk Division

November 9, 2016

LATASHA DAVIS, et al, Plaintiffs,
BT AMERICAS INC., et al, Defendants.


          Lawrence R. Leonard United States Magistrate Judge

         This matter is before the Court on Plaintiffs' Motion for Conditional Collective Action Certification Pursuant to 29 U.S.C. § 216(b). ECF No. 32. On behalf of themselves and others similarly situated, Plaintiffs brought this action to recover unpaid overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. On September 6, 2016, Plaintiffs filed their motion seeking conditional certification requesting that the Court conditionally certify a collective class action and transmit notice to potential class members. ECF No. 32. Defendants responded in opposition on September 20, 2016, ECF Nos. 34-35, and Plaintiffs replied on September 27, 2016, ECF No. 36. This matter was then referred to the undersigned United States Magistrate Judge pursuant to a Referral Order from the Chief United States District Judge. ECF No. 37: see also 28 U.S.C. §§ 636(b)(1)(B); Fed.R.Civ.P. 72(b); E.D. Va. Local Civ. R. 72.

         On October 25, 2016, the undersigned conducted a hearing on the pending motion, at which James Shoemaker appeared for the Plaintiffs, Nathaniel Glasser appeared for Defendants BT Americas Inc. and BT Conferencing Inc., (collectively "BT") and Amy Pocklington appeared for Defendant Manpower Group US, Inc. ("Manpower"). On November 1, 2016, the parties filed a joint motion to sever the claim of Plaintiff Stephane Gassant against Defendant Manpower from the remaining Plaintiffs' claims against BT Americas. ECF No. 40. This motion was denied on November 3, 2016. ECF No. 41. On November 8, 2016, the parties filed a voluntary dismissal of Plaintiff Gassant and Defendant Manpower pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). For the following reasons, the undersigned RECOMMENDS that the Plaintiffs' Motion for Conditional Collective Action Certification, ECF No. 32, be GRANTED.


         In this action as originally filed Plaintiffs are six current and former employees of BT, as well as one former employee of Manpower. ECF No. 33 at 2. Plaintiffs were employed as telecommunication services representatives at the BT Conferencing Inc., facility in Chesapeake, Virginia from April 26, 2013 to the present. Id. Manpower is a staffing agency that provides employees to BT's facility. ECF No. 35 at 5.

         Plaintiffs' main, or catalytic, claim is that Defendants failed to pay overtime compensation for time spent logging in and out of Defendants' computer systems at the beginning and end of each day ("the catalytic claim"). ECF No. 33 at 4. Plaintiffs also claimed three non-catalytic claims based on Defendants' alleged (1) failure to pay them for time spent on breaks of less than twenty minutes if they went over their allotted two, ten to fifteen minute breaks a day; (2) "[t]he occasional and recurring failure to record and compensate the Plaintiffs for calls that continued after their regularly scheduled shift had ended;" and (3) "[t]he occasional and recurring deduction of time for a lunch break when no lunch break was afforded or lunch was eaten while working." Id. at 4-5.

         In support of their catalytic claim, the BT Plaintiffs alleged, and provided six declarations in support, that prior to their shift, BT employees are required to log in to their computer operating system, a tracking system, and a payroll system, which can take several minutes before the systems are up and running and Plaintiffs' shifts, and their compensation, begins. Id. at 3-4. Since BT employees are required to log in to a payroll system at the beginning of their shift, and their compensation does not begin until they are logged in to the payroll system, the employees claim they are entitled to be paid for this log-in time, which they variously alleged to take between seven and fifteen minutes, and longer after weekends. Id.; attach. 4-5, 7-10. Manpower employees only had to log in to their computer operating system and the tracking system. Id. at 4. Manpower alleged, and Plaintiffs did not dispute, that Manpower employees could log in to their payroll system at any time, and thus could report time spent logging in to the computer systems. ECF No. 34 at 2. Notably, Plaintiffs alleged that "[i]f they were late in having their systems up and running for their shift, even if by one minute, they would be subject to significant discipline, up to and including termination." ECF No. 33 at 4. Plaintiffs stated they "felt the personal need" to arrive to work an average of more than ten minutes early every day to log in to their computers and "even earlier" when logging in to their computer after they had shut it down at the end of the week or before a holiday. Id. While the BT Plaintiffs' declarations addressing the catalytic claim described a circumstance that applied to all BT employees, the circumstances attending the non-catalytic claims varied, described as "occasional, " occurring "sometimes, " or varying by supervisor. Id; attach. 4-5, 7-10. Plaintiffs also submitted a proposed notice that included terms, inter alia, requiring the consent forms to be returned to the Clerk of Court within sixty days of receiving the notice. Id. at 4; attach. 2. Lastly, Plaintiffs asserted qualifications for their counsel to be appointed class counsel. Id. at 11-12.

         In their Memoranda of Opposition, BT and Manpower argued that the Plaintiffs' proposed class is not similarly situated and subject to a common policy or plan because they are employed by two separate employers with distinct timekeeping systems. ECF No. 34 at 5; ECF No. 35 at 5-6. Because Manpower employees could log in to their timekeeping system and report their time at their convenience, the Defendants argued that the BT and Manpower Plaintiffs were not similarly situated or subject to a common policy or plan. BT further claimed that it lacked a policy or plan that violated the FLSA because Plaintiffs were not required to arrive early, but only did so because they "personally felt the need." ECF No. 35 at 6. BT contended its employees were not disciplined for not being logged in before their shift began unless they did so six times, and that the employees could submit a justifiable reason for being late. Id. at 16. Moreover, BT stated the amount of time it takes for its employees to log in is de minimis as it typically only took them "no more than 2 minutes" to log in to their computers. Id. at 7.

         Plaintiffs in their reply agreed to limit the scope of their motion to only BT Employees. ECF No. 36 at 1. At the hearing, counsel for Manpower indicated that she and Plaintiffs' counsel have agreed to sever the one Manpower Plaintiff from the case, and such a joint motion, ECF No. 40, was filed on November 1, 2016. Plaintiffs' counsel also stated he would consent to a notice period of thirty days and to collect the consent forms and file them with the Court.

         On November 3, 2016, the Chief United States District Judge denied the Motion to Sever, concluding that if Plaintiff Gassant's case lacks common questions of law or fact with the other six plaintiffs, then she "should be dismissed without prejudice from this action, and allowed to file her own action." ECF No. 41 at 1. Subsequently, the parties filed a voluntary dismissal of Gassant and Manpower, leaving only the BT employees and BT in the case. ECF No. 42.


         Section 216(b) of the FLSA permits a plaintiff to bring suit "for and in behalf of himself... and other employees similarly situated." 29 U.S.C. § 216(b). Although the FLSA and the Fourth Circuit have not specifically delineated a standard for determining whether a potential class is sufficiently "similarly situated" to permit conditional certification, the district courts within the Fourth Circuit follow a two-step approach to determine if the plaintiffs are "similarly situated, " (1) the notice stage and (2) the decertification stage. See, e.g., Purdham v. Fairfax Cnty. Pub. Sck, 629 F.Supp.2d 544, 547 (E.D. Va. 2009); Meeker v. Med. Transport, LLC, No. 2:14cv426, 2015 WL 1518919, at *2 (E.D. Va. Apr. 1, 2015).

         In the notice stage, the Court uses "a fairy lenient standard" to determine whether to provide notice to potential class members. Choimbol v. Fairfield Resorts, Inc., 475 F.Supp.2d 557, 562 (E.D. Va. 2006). The plaintiffs must show "that a similarly situated group of plaintiffs exists" and "demonstrate they and potential plaintiffs together were victims of a common policy or plan that violated the [FLSA]." Meeker, 2015 WL 1518919, at *3. "The primary focus in this inquiry is whether the potential plaintiffs are 'similarly situated with respect to the legal and, to a lesser extent, the factual issues to be determined.'" Houston v. URS Cop., 591 F.Supp.2d 827, 831 (E.D. Va. 2008) (quoting Choimbol, 475 F.Supp.2d at 563). "Plaintiffs and putative class members need not have identical situations; '[differences as to time actually worked, wages actually due and hours involved are, of course, not significant to this [similarly situated] determination."' Meeker, 2015 WL 1518919, at *3 (citing De Luna-Guerrero v. N.C. Grower's Ass'nlnc, 338 F.Supp.2d 649, 654 (E.D. N.C. 2004)).

         Typically once discovery has been completed, the Court proceeds with the decertification stage where using a "heightened fact specific standard, " it determines whether the case can proceed to trial. Choimbol, 475 F.Supp.2d at 563. In the "rare case when there is sufficient evidence in the record at the notice stage to reveal that certification of the collective action is not appropriate...the court may collapse the two stage certification and deny certification outright." Stone v. SRA ...

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