United States District Court, E.D. Virginia, Norfolk Division
November 9, 2016
LATASHA DAVIS, et al, Plaintiffs,
BT AMERICAS INC., et al, Defendants.
REPORT AND RECOMMENDATION
Lawrence R. Leonard United States Magistrate Judge
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.
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,
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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.
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).
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)).
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 Int'l, Inc., No.
2:14cv209, 2014 WL 5410628, at *3 (E.D. Va. Oct. 22, 2014)
(citing Purdham, 629 F.Supp.2d at 547).
some discovery has been completed, district courts within the
Fourth Circuit are divided on whether to apply a heightened
standard for conditional class certifications. Compare
Blaney v. Charlotte-Mecklenburg Hosp. Autk, No.
3:10cv592, 2011 WL 4351631, at *5 (W.D. N.C. Sept. 16, 2011)
(utilizing an "intermediate" standard of
review" of "whether a sound basis exists for
proceeding as a collective action while also considering all
evidence available at the time" when the parties
conducted three months of discovery, exchanged
interrogatories and documents, and took several
plaintiffs' depositions), with Butler v. DirectSAT
USA, LLC, 876 F.Supp.2d 560, 566-67 (D. Md. 2012)
(declining to apply an increased standard of review when the
parties have completed some discovery). Here, the parties
have not identified what, if any, discovery has occurred to
date. Since no controlling authority from the Fourth Circuit
or the Eastern District of Virginia mandates a heightened
standard at this stage of the proceedings, the undersigned
applies the lenient standard for the conditional
alleged that they have been deprived of overtime in four
respects, which may be summarized as failure to pay for: (1)
time spent logging in to computer systems, (the catalytic
claim); (2) time spent on breaks less than twenty minutes;
(3) time spent working after their shift ended; and (4) time
spent working through the lunch break. While the latter three
claims reflected instances that were variously described as
occasional and/or variable by supervisor, and thus raise a
real question as to whether the Plaintiffs have established,
even at this lenient stage, that they were subject to a
uniform policy or practice, the catalytic claim is not so
problematic. The catalytic claim sufficiently sets forth a
similarly situated group of employees who are subject to a
common policy or plan that deprives them of compensation.
Accordingly, the undersigned RECOMMENDS that Plaintiffs'
Motion for Conditional Class Certification and Notice under
the FLSA, 29 U.S.C. § 216(b), be
according to Plaintiffs' declarations, BT employees do
not begin to be compensated until they have logged in to all
three computer systems, including their payroll system which,
once they are logged in, starts tracking their time for pay
purposes. BT employees claim, therefore, that they are
required to arrive at work between seven and fifteen minutes
early in order to log in to the various computer systems, and
that their compensation does not begin until they are so
logged in. Since the employees averred that they are subject
to discipline, including possible termination, if they log in
even one minute late, they have sufficiently alleged a common
policy applicable to all BT employees that requires early
attendance at work for which they are not paid. BT's
argument that such time is de minimis, which perhaps
may be proven accurate following discovery, at this stage
does not merit denying conditional certification. First,
whether the log in time is seven to fifteen minutes, as
Plaintiffs claim, or up to two minutes, as BT claims, is a
material fact in dispute that this Court need not and should
not determine at this stage of the proceedings. Moreover, the
parties do not dispute that Plaintiffs may be subject to
discipline if they log in even one minute after their
scheduled shift time begins. The fact that such discipline
may only accrue upon the sixth occurrence, as alleged by BT,
does not alter the calculus because the alleged policy
requiring early arrival at work is imposed every day. Hence,
Plaintiffs have alleged a uniform policy or practice that
requires early arrival at work in order to complete the log
in process before their scheduled shift begins.
addition, Plaintiffs must demonstrate that they are similarly
situated to the putative class members they seek to
represent. As telecommunications services representatives
with substantially similar job duties who are subject to the
same policies and procedures, at this stage in the
proceedings, Plaintiffs have sufficiently proffered that they
are similarly situated. Each of the BT declarations reflect
common job duties and responsibilities, and common policies
that apply to all BT telecommunications services
representatives. The putative class is limited to those BT
employees working at the Chesapeake, Virginia location, all
of whom perform the same duties. While the declarations
varied somewhat as to the length of time the employees
reported early to work in order to log in to their systems,
such individual variance is not determinative. Plaintiffs and
putative class members need not be identical in all respects
to meet the similarly situated standard. Meeker,
2015 WL 1518919, at *3 (citing De Luna-Guerrero 338
F.Supp.2d at 654).
as Defendants have not contested the qualifications of
Plaintiffs' counsel to represent the class, and
Plaintiffs' counsel has previously successfully
represented class plaintiffs in similar FLSA litigation, the
undersigned RECOMMENDS appointing Plaintiffs' counsel as
if the Court conditionally certifies the class, then an
appropriate notice is required. The Court has reviewed the
Plaintiffs' proposed notice, ECF No. 33 attach. 2, and
BT's proposed notice, ECF No. 35 attach. 20, and
RECOMMENDS adopting Plaintiffs' notice with certain
changes. Those changes have been made to the Plaintiffs'
proposed notice, which is attached to this report and
recommendation. Those changes are described as follows.
the parties voluntarily dismissed Plaintiff Gassant and
Manpower from this case. As a result, the notice should be
modified to reflect that it only pertains to Defendants BT
Americas, Inc. and BT Conferencing, Inc., and all references
to Manpower Group US, Inc. are removed, including from the
under section II, "Description of the Lawsuit, "
the description of the type of overtime work for which
Plaintiffs claimed they were not paid should include
Defendants' explanation. The proposed description
accurately advises the potential plaintiffs of the particular
manner in which it is alleged that overtime compensation has
not been paid. In addition, the description should reflect
that the lawsuit seeks to recover "wages, " not
"damages." Third, under section III, "To join
this Lawsuit, " Plaintiffs' proposed notice directs
potential plaintiffs to submit the "Consent to Become a
Party Plaintiff form to the Clerk of Court within sixty days
from the date of the Notice's mailing. ECF No. 33 attach.
2 at 2. In the interest of judicial economy and avoiding
cumbersome filings, the notice should instead provide that
potential plaintiffs are directed to send their consent forms
to Plaintiffs' counsel, who may then electronically file
them individually or collectively. Defendants' counsel
proposed this modification to which Plaintiffs' counsel
agreed at the hearing.
in the same section, the time frame for potential plaintiffs
to respond to the notice should be reduced to thirty days
from the date of mailing. Given the size of the proposed
class, which apparently is less than thirty, ECF No. 36 at 2,
and the fact that the geographic location is limited to
Chesapeake, Virginia, allowing thirty days to respond is
sufficient. This modification was also proposed by Defendants
and agreed to by Plaintiffs' counsel at the hearing.
foregoing reasons, the undersigned
RECOMMENDS that the Plaintiffs' Motion
for Conditional Collective Action Certification, ECF No. 32,
be GRANTED. Additionally, the undersigned
RECOMMENDS Plaintiffs' counsel be
appointed as class counsel and that Defendant BT be ordered
to provide Plaintiffs' counsel with the names, last known
mailing addresses, home and/or mobile phone numbers, and
email addresses of all potential members of the conditionally
certified class. Further, the undersigned
RECOMMENDS that the Court order the parties
use the attached revised notice and that any consent to
joinder in this action must be collected by Plaintiffs'
counsel and filed with the Clerk of Court no later than
thirty days after the date the Court approves the notice to
receiving a copy of this Report and Recommendation, the
parties are notified that:
party may serve on the other party and file with the Clerk of
this Court specific written objections to the above findings
and recommendations within fourteen days from the date this
Report and Recommendation is mailed to the objecting party,
see 28 U.S.C. § 636(b)(1)(C) and Federal Rule
of Civil Procedure 72(b), computed pursuant to Federal Rule
of Civil Procedure Rule 6(a) plus three days permitted by
Federal Rule of Civil Procedure Rule 6(d). A party may
respond to another party's specific written objections
within fourteen days after being served with a copy thereof.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Chief United States District Judge shall make a de
novo determination of those portions of this Report and
Recommendation or specified findings or recommendations to
which objection is made. The parties are further notified
that failure to file timely specific written objections to
the above findings and recommendations will result in a
waiver of the right to appeal from a judgment of this Court
based on such findings and recommendations. Thomas v.
Am, 474 U.S. 140 (1985); Carr v. Hutto, 737
F.2d 433 (4th Cir. 1984), cert, denied, 727 U.S.
1019 (1985); United States v. Schronce, 727 F.2d 91
(4th Cir. 1984), cert, denied, 467 U.S. 1208 (1984).
Clerk is DIRECTED to forward a copy of this Report and
Recommendation to all counsel of record.