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