United States District Court, M.D. Tennessee, Nashville Division
ELISSA O'BRIEN, individually, and on behalf of all others similarly situated, Plaintiffs,
CHRISTIAN FAITH PUBLISHING, Defendant.
FRENSLEY, MAGISTRATE JUDGE.
MEMORANDUM AND ORDER
WILLIAM L. CAMPBELL, JR.. UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's Motion for Expedited
Approval of 29 U.S.C. § 216(b) Court-Supervised Notice
and Consent Forms and to Order Disclosure of Current and
Former Employees (Conditional Certification). (Doc. No. 56).
Through the motion, Plaintiff seeks an order (1)
conditionally certifying a class of plaintiffs who worked as
literary agents for Defendant Christian Faith Publishing; (2)
directing Defendant to provide a list of last-known names,
addresses, email address, and telephone numbers for all
putative class members; and (3) equitably tolling the statute
of limitations for prospective class members during the
opt-in period. Defendant Christian Faith Publishing filed a
response in opposition (Doc. No. 59), and Plaintiff filed a
reply (Doc. No. 60). For the reasons discussed below,
Plaintiff's motion is GRANTED in part, and DENIED in
filed this action as a purported collective action pursuant
to the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 216(b). Plaintiff claims that she and other
similarly situated employees worked remotely for Defendant
Christian Faith Publishing as literary agents selling
publishing services for Defendant. Plaintiff claims that she
and other literary agents were improperly classified as
“independent contractors, ” regularly worked more
than forty (40) hours per week, and at times were paid
nothing, in violation of the minimum wage and overtime pay
requirements of the Fair Labor Standards Act
(“FLSA”). In support of the motion for
conditional certification, Plaintiff submitted declarations
from herself and another literary agent, Vincent Damiano, and
supporting documents. (Doc. Nos. 57-1, 57-2, 57-3, 57-4,
STANDARD FOR CONDITIONAL CERTIFICATION
FLSA provides that a collective action may be maintained
against any employer by one or more employees for and on
behalf of themselves and other employees similarly situated.
29 U.S.C. § 216(b). The FLSA does not define the term
“similarly situated, ” but courts have 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. Bradford v.
Logan's Roadhouse, Inc., 137 F.Supp.3d 1064, 1071
(M. D. Tenn. 2015); Watson v. Advanced Distribution
Servs., LLC, 298 F.R.D. 558, 561 (M.D. Tenn. 2014).
Employees may also be similarly situated if their claims are
merely “unified by common theories of the
defendants' statutory violations, even if the proofs of
these theories are inevitably individualized and
distinct.” Amos v. Lincoln Property Co., 2017
WL 2935834 at * 2 (M.D. Tenn. July 7, 2017).
courts recognize a two-step process to determine whether
plaintiffs are similarly situated. Bradford, 137
F.Supp.3d at 1071. The first step takes place at the
beginning of discovery, where the plaintiff bears the burden
of showing that employees in the purported class are
similarly situated. Id. The plaintiff must show only
that her position is similar, not identical, to the positions
held by the putative class members. Id. (citing
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546
(6th Cir. 2006)). At this first stage, courts use a
“fairly lenient standard” that typically results
in conditional certification of a representative class.
Id. 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. Potts v. Nashville
Limo & Transport, LLC, 2015 WL 4198793 at * 4 (M.D.
Tenn. July 10, 2015).
first stage, the plaintiff must present substantial
allegations supported by declarations; once the plaintiff has
met that burden, a court, in its discretion, may
conditionally certify the case as a collective action,
regardless of what exemptions the defendant wishes to assert
at a later time. Medley v. Southern Health Partners,
Inc., 2017 WL 3485641 at * 5 (M.D. Tenn. Aug. 15, 2017).
If a court approves conditional certification, it may
authorize the notification of similarly-situated employees to
allow them to opt into the lawsuit. Comer, 454 F.3d
at 546; Bradford, 137 F.Supp.3d at 1072. The
certification at this stage is conditional and by no means
final. Bradford, 137 F.Supp.3d at 1072. A court does
not resolve factual disputes, decide substantive issues going
to the merits, or make credibility determinations to
determine whether a plaintiff has met his evidentiary burden
at this first stage. Id.
alleges that she and other literary agents employed by the
Defendant were improperly classified as “independent
contractors” and that they frequently worked more than
40 hours per week. Plaintiff states literary agents were
compensated based on the number of books they sold and were
subject to “charge backs” if the customer did not
fulfill his payment obligations. In some weeks, she claims,
this resulted in literary agents not receiving minimum wage
or overtime pay for hours worked in excess of 40 hours per
week. Plaintiff submitted declarations from herself and
Vincent Damiano and supporting documents. (Doc. Nos. 57-1,
57-2, 57-3, 57-4, 57-5).
stated she worked for Defendant making phone calls to
potential customers from 9:00 a.m. until 5:00 p.m.,
“often working weekends to make up calls.”
(O'Brien Decl., Doc. No. 57-1). Mr. Damiano stated that
he “regularly worked over 40 hours each workweek, often
working weekends to make all my calls or send out my
emails.” (Damiano Decl., Doc. No. 57-2). Mr. Damiano
said his hours were 9:00 or 10:00 a.m. to 7:00 p.m.
(Id.) Ms. O'Brien and Mr. Damiano were paid $500
per sale, but were subject to “charge backs” if
the customer did not complete their monthly payments. (Doc.
Nos. 57-1, 57-2, 57-3). As a result of charge backs, Ms.
O'Brien stated she sometimes received $0 for a week of
work. (Doc. No. 57-1). Though they worked remotely and were
classified as independent contractors, Ms. O'Brien and
Mr. Damiano stated that they had set working hours and that
their work was directed by Defendant who told them who to
call, when to call, and what to say. (Doc. Nos. 57-1, 57-2).
O'Brien and Mr. Damiano both stated that they had spoken
with other literary agents and based on these conversations
believe that their job duties and compensation structure were
the same as other literary agents and that other agents also
regularly worked over 40 hours per week. Plaintiff alleges
they all used the same script, were subject to the same
compensation structure, and were subject to the same policies
and oversight and control. Plaintiff attached the script and
documentation of the compensation structure to her
declaration. (Doc. Nos. 57-4, 57-5). Ms. O'Brien and Mr.
Daminao stated their supervisor regularly communicated with
all of the agents simultaneously via group email messages.
She submitted a copy of four group emails from their
supervisor Steve Kay with a monthly sales report and
instructions for making calls, following up on leads, and
references to a common compensation structure. (Doc. No.
57-5). The emails encouraging agents to “keep your
phones on as early as possible - and on for as ...