United States District Court, M.D. Tennessee, Nashville Division
CHARLES MILLER, CHARLES STAFFORD, and DEQUAN RHODES, individually, and on behalf of others similarly situated, Plaintiffs,
LEBANON GOLF & COUNTRY CLUB, Defendant.
ALETA A. TRAUGER, District Judge.
Pending before the court is a Motion for Approval of 29 U.S.C. § 216(b) Notice and Consent Forms and to Order Disclosure of Current and Former Employees filed by the plaintiffs, Charles Miller, Charles Stafford, and Dequan Rhodes (together, "plaintiffs"). (Docket No. 12.) The defendant, Lebanon Golf & Country Club (the "Club" or "defendant"), has filed a Response in opposition to the Motion. (Docket No. 16.) For the reasons discussed herein, the plaintiffs' motion will be granted in part and denied in part.
On May 2, 2014, the plaintiffs filed their Complaint in this case. (Docket No. 1.) Two of the named plaintiffs, Miller and Stafford, are former employees of the defendant, a private member club located in Lebanon, Tennessee. The third named plaintiff, Rhodes, is a current employee of the defendant. It appears that each of the named plaintiffs specifically worked in food service capacities in the restaurant located on the premises of the Club.
Hourly employees at the Club clock in and out at the beginning and end of their shifts, using a manual time clock located in the back of the Club's kitchen. The plaintiffs allege that, as employees of the defendant, they regularly performed work in excess of forty (40) hours per week. The plaintiffs further allege that, despite working in excess of 40 hours per week, they were not properly compensated for all of the hours that they worked.
The plaintiffs claim that, by failing to compensate employees for overtime pay, the Club violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., as well as Tennessee common law. The plaintiffs seek to represent a class of all non-exempt current and former employees of the defendant who were not properly compensated. They seek damages, including unpaid wages and overtime compensation. 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 further seek an order directing (1) the defendant to provide the names, mailing addresses, and phone numbers for all non-exempt current and former employees who have been employed in the last six years; (2) the defendant to post notice prominently at the facilities where putative class members work, attach notice to current employees' paychecks, and mail notice to putative class members so that they can assert their claims on a timely basis; (3) the tolling of the statute of limitations for the putative class as of the date this action was filed; and (4) that the opt-in plaintiffs' Consent Forms be deemed "filed" on the day that they are postmarked.
In seeking the court's approval of its Section 216(b) notice and consent forms at this early stage, as a collective action, the plaintiffs are seeking what is generally known as a "conditional certification" of a collective action pursuant to Section 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 ...