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O'Brien v. Christian Faith Publishing

United States District Court, M.D. Tennessee, Nashville Division

November 14, 2019

ELISSA O'BRIEN, individually, and on behalf of all others similarly situated, Plaintiffs,
v.
CHRISTIAN FAITH PUBLISHING, Defendant.

          FRENSLEY, MAGISTRATE JUDGE.

          MEMORANDUM AND ORDER

          WILLIAM L. CAMPBELL, JR.. UNITED STATES DISTRICT JUDGE.

         Pending 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 part.

         I. FACTUAL BACKGROUND

         Plaintiff 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, 57-5).

         II. STANDARD FOR CONDITIONAL CERTIFICATION

         The 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).

         Generally, 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).

         At the 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.

         III. ANALYSIS

         A. Conditional Certification

         Plaintiff 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).

         Plaintiff 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).

         Ms. 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 ...


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