The opinion of the court was delivered by: Judge Trauger
Pending before the court is the Motion for Expedited Court-Supervised Notice to Prospective Class Members Pursuant to 29 U.S.C. § 216(b) filed by the plaintiffs (Docket No. 36), to which the defendant has filed a response (Docket No. 45), and in support of which the plaintiffs have filed a reply (Docket No. 52). For the reasons discussed herein, the plaintiffs' motion will be GRANTED in part and DENIED in part.
On May 2, 2011, the plaintiffs filed their Complaint in this case.*fn1 The six named plaintiffs are former employees of defendant T-Mobile USA ("T-Mobile"). T-Mobile provides wireless voice, messaging, and data services nationwide. It operates 24 call centers in 16 states, which states are: Alabama, Colorado, Florida, Georgia, Indiana, Kansas, Maine, Missouri, New Mexico, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Washington. Five of the named plaintiffs*fn2 worked as customer service representatives ("CSRs") at T-Mobile's call center in Nashville, Tennessee.*fn3 The remaining named plaintiff worked as a technical support representative ("TSR") at T-Mobile's call center in Colorado Springs, Colorado.*fn4
Hourly employees at T-Mobile's call centers clock in and out by means of their workstation computers. The plaintiffs allege that, before clocking in to work, employees had to spend a certain amount of uncompensated time bringing up their computers and performing other preparatory work. They also allege that the defendant underpaid employees by failing to include certain required payments in the regular rate of pay when it calculated overtime. The plaintiffs claim that, by failing to compensate employees for pre-shift work and work performed during unpaid meal breaks and by miscalculating the regular rate of pay, T-Mobile violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. The plaintiffs seek to represent a class of all non-exempt current and former employees employed at any time since May 2, 2008 at TMobile's call centers nationwide who worked as CSRs, as TSRs, or in related occupations where employees handle calls with the public or vendors.
In addition to seeking authorization from the court for this case to proceed as a collective action under the FLSA, the plaintiffs filed proposed notice and consent forms that would be provided to potential plaintiffs to give them the opportunity to learn of this litigation and to opt-into it. The plaintiffs seek an Order directing: (1) the defendant to provide the names, mailing addresses, and any known e-mail addresses of all non-exempt current and former employees who have been employed at any time since May 2, 2008 at T-Mobile's call centers nationwide who worked as CSRs, as TSRs, or in related occupations where employees handle calls with the public or vendors; (2) the plaintiffs' counsel to notify such employees; (3) that all such employees shall have 120 days to opt in to this action from the date the defendant provides the requested names and addresses to the plaintiffs' counsel; and (4) that the statute of limitations be tolled until the close of the above-referenced notice period.
In seeking court-ordered "authorization" to proceed, at this early stage, as a collective action, the plaintiffs are seeking what is generally known as "conditional certification" of a collective action pursuant to 29 U.S.C. § 216(b) of the FLSA.
I. FLSA Certification Standard
Recognizing that the value of an individual claim might be small and not otherwise economically sensible to pursue, the FLSA provides that a collective action "may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Because the statute only requires that employees be "similarly situated," plaintiffs seeking to certify a collective action under the FLSA face a lower burden than those seeking to certify a class action under Federal Rule of Civil Procedure 23. O'Brien v. Ed Donnelly Enters., 575 F.3d 567, 584 (6th Cir. 2009). Once a collective action is certified, however, employees seeking to join the class must affirmatively opt into the litigation by filing a written consent with the court. 29 U.S.C. § 216(b).
The FLSA does not define the term "similarly situated." However, the Sixth Circuit has held that "plaintiffs are similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs." O'Brien, 575 F.3d at 585. But employees may also be similarly situated if their claims are merely "unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct." Id. Indeed, "[s]howing a 'unified policy' of violations is not required [for certification]." Id. at 584. In O'Brien, the Sixth Circuit stated that even a requirement that employees' "causes of action under the FLSA accrued at about the time and place in the approximate manner of the named plaintiff" would be "more demanding than what the [FLSA] requires." Id. at 585.
Typically, courts employ a two-phase inquiry to address whether the named plaintiffs are similarly situated to the employees they seek to represent. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006); O'Brien, 575 F.3d at 583. "The first [phase] takes place at the beginning of discovery. The second occurs after all of the opt-in forms have been received and discovery has concluded." Comer, 454 F.3d at 546 (quotation marks omitted).
At the first stage, the plaintiff bears the burden of showing that employees in the class are similarly situated. Shabazz v. Asurion Ins. Serv., No. 3:07-0653, 2008 WL 1730318, at *3 (M.D. Tenn. Apr. 10, 2008). At that point, "'the certification is conditional and by no means final.' The plaintiff must show only that 'his position is similar, not identical, to the positions held by the putative class members.'" Comer, 454 F.3d at 546-47 (quoting Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591, 595 (S.D. Ohio 2002)). In Comer, the Sixth Circuit approvingly quoted the lower court's decision, which stated that conditional certification "'need only be based on a modest factual showing,'" Id. at 547 (quoting Pritchard, 210 F.R.D. at 596), and that the court should use "'a fairly lenient standard [that] typically results in . . . certification.'" Id. (quoting Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 497 (D.N.J. 2000)); see also Shabazz, 2008 WL 1730318, at *3 (stating that plaintiffs "must simply submit evidence establishing at least a colorable basis for their claim that a class of similarly situated plaintiffs exist[s]" (quotation marks omitted)). If the named plaintiffs show that employees in the proposed class are similarly situated, "[t]he district court may use its discretion to authorize notification of similarly situated employees to allow them to opt into the lawsuit." Comer, 454 F.3d at 546.
After discovery, the defendant may move for decertification of the conditional class. See O'Brien, 575 F.3d at 583; Shabazz, 2008 WL 1730318, at *3 (citing Anderson v. Cagle's, Inc., 488 F.3d 945, 952 (11th Cir. 2007)). At this second stage, the court has access to more information and employs a "stricter standard" in deciding whether class members are, in fact, similarly situated. Comer, 454 F.3d at 547. ...