The opinion of the court was delivered by: William B. Mitchell Carter United States Magistrate Judge
Plaintiff Cynthia Lowery's motion to amend her complaint to add Barbara Dadswell as a plaintiff (Doc. 6) in the instant action asserting claims brought under the Fair Labor Standards Act (FLSA) is pending. For the reasons stated herein, plaintiff's motion is GRANTED.
Plaintiff's complaint states, "[t]his is an action to redress systemic violations of the Fair Labor Standards Act, as amended." (Complaint, ¶). Specifically, plaintiff seeks to recover overtime pay allegedly due her while employed by the defendant, the Greater Chattanooga Public Television Corporation, d/b/a WTCI 45 (WTCI), as Membership Director. She was employed with the defendant for approximately six years until her termination in April 2007. According to her complaint, plaintiff routinely worked more than 40 hours per week, but she was treated as a salaried or exempt employee for purposes of overtime when, in fact, she did not meet the salaried basis or duties test required by white collar exemptions for overtime pay under the FLSA. (Complaint, ¶¶ 4-8). Although plaintiff was theoretically paid on a "salaried basis," plaintiff's salary or vacation accrual was routinely docked based upon the quantity of her work. (Complaint, ¶ 7). The plaintiff brings this action on behalf of herself and "all similarly situated employees" under 29 U.S.C. § 216(b) of the FLSA. (Complaint, ¶¶ 9-11).
Plaintiff now moves to amend her complaint to add Barbara Dadswell as a plaintiff. The Proposed Amended Complaint states that Ms. Dadswell was employed by WTCI as the Corporate Account Executive and later as the Special Events Coordinator. (Proposed Amended Complaint, ¶ 5). The Proposed Amended Complaint also alleges "[t]his is an action to redress systemic violations of the Fair Labor Standards Act, as amended." (Complaint, ¶ 3). The Proposed Amended Complaint further alleges both Lowery and Dadswell routinely worked more than 40 hours per week, but WTCI improperly treated them as salaried or exempt employees for purposes of paying overtime under the FLSA. (Proposed Amended Complaint, ¶¶ 6-8). Although plaintiffs were theoretically paid on a "salaried basis," plaintiffs' salary or vacation accrual was routinely docked based upon the quantity of their work. (Proposed Amended Complaint, ¶ 7.) Neither plaintiff met the salaried basis or duties test required by white collar exemptions under the FLSA, and plaintiff Dadswell did not meet the salary amount requirement. (Proposed Amended Complaint, ¶ 8). Plaintiffs allege on behalf of themselves and all similarly situated employees that WTCI unlawfully classified them and others similarly situated as exempt from overtime payments and that they are entitled to overtime pay for overtime worked. (Complaint, ¶¶ 9-10).
Ms. Lowery originally relied upon Fed. R. Civ. P. 15(a) and Fed. R. Civ. P. 20(a) (permissive joinder) as authority to support her motion to add Ms. Dadswell as a plaintiff to this case. (See Plaintiff's memorandum, Doc. 7). However, in her reply brief, the plaintiff argued the court should also consider the standard set forth in Section 16(b) of the FLSA, 29 U.S.C. § 216(b). Because plaintiff had not raised this argument in her original brief, I ordered the parties to address this argument in supplemental briefing, and they have done so.
Section 16(b) of the FLSA, 29 U.S.C. § 216(b), provides in relevant part that an action may be brought for violations of the FLSA "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Section 216(b) is the vehicle by which representative actions may be brought under the FLSA. See Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 545 (6th Cir. 2006) ("Section 216(b) establishes two requirements for a representative action..."). In a representative action, also called a collective action, under the FLSA, persons on whose behalf an action is brought must be similarly situated to the named plaintiffs and give their written consent to join in or "opt-in" to the lawsuit. Id. at 546.
The Fifth Circuit in Allen v. Atlantic Richfield Co., 724 F.2d 1131 (5th Cir. 1984) provides a helpful and persuasive discussion about the difference between a named plaintiff and an "optin" plaintiff in an FLSA action. In Allen, the defendant argued that an FLSA action should be dismissed for lack of jurisdiction because none of the named plaintiffs to the FLSA action had provided written consent as required by Section 216(b). The Allen Court rejected this argument, however, finding that each of the named plaintiffs was asserting his own claim in his own behalf and therefore the requirements of Section 216(b) did not apply:
It is clear that a plaintiff does not need to file a written consent if an individual action is maintained. He or she is the named plaintiff. In this case, each claimant is a named plaintiff. This suit consists of a number of individual actions, not a collective or class action subject to sections 16(b) and 256 [of the FLSA]. The twenty-two plaintiffs through their lawyer alleged individual causes of action and sought individual relief in the form of individual damage claims. None of the individual plaintiffs sought to represent others of the named plaintiffs as well as themselves. These twenty-two named plaintiffs, then, have simply joined their actions as permitted by Fed.R.Civ.P. 20(a); their causes of action arose out of the same series of transactions or occurrences. Although in their complaint plaintiffs stated that they sought to represent "other similarly situated Atlantic Richfield employees," the action never evolved into a collective or class action since no unnamed plaintiff ever came forward and filed a written consent to the suit, asking to be made a party plaintiff. The only parties to the suit were named plaintiffs represented by the lawyer who signed the complaint.
Allen, 724 F.2d at 1135 (brackets added). In the instant case, the current plaintiff, Cynthia Lowery, is not attempting to bring this action on behalf of herself and Barbara Dadswell. Rather, Ms. Lowery moves to amend her complaint to add Barbara Dadswell as a named plaintiff in the case. If allowed, Ms. Dadswell will be asserting her claim on her own behalf. Accordingly, Section 216(b) which addresses representative actions under the FLSA is not implicated by the current motion to amend the complaint.
Having concluded that Section 216(b) does not apply in determining whether Barbara Dadswell should be allowed to join this action as a plaintiff, I turn to the more familiar standards set forth in Fed. R. Civ. P. 15(a), 16, and 20(a).
Fed. R. Civ. P. 15(a) provides that "leave to amend shall be freely given where justice so requires." Under Rule 15(a), leave to amend is appropriate "in absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive..., repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc..." Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The court must also consider the plaintiff's motion in light of Fed. R. Civ. P. 16(b). Leary, 349 F.3d at 909. Rule 16 provides the district judge shall enter a scheduling order that, inter alia, limits the time to join other parties and amend the pleadings.*fn1 Rule 16(b); Leary, 349 F.3d at 906. "The Rule is designed that at some point both the parties and the pleadings shall be fixed, [and] [t]he Rule permits modification of the scheduling order upon a showing of good cause and by leave of the district judge." Leary, 349 F.3d at 906 (internal citation omitted); see also Rule 16(b). Where a party moves to amend the pleadings after the deadline established by the Scheduling Order, that party must ...