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Archer v. Defenders, Inc.

United States District Court, D. Delaware

November 14, 2018

TEDDY ARCHER, TREY BERNADOU, SEDETRIC CHAMBLISS, ERVIN DESIR, BRODRICK FRANCIS, JAMES HUTCHINSON, DANIEL MANOFSKY, DEVON SPRINGER, ERIC STEWART, JESSE SWANSON, ANDREW WALLS, CALVIN WESLEY, CHRIS WOODRUFF, on behalf of themselves and all others similarly situated, Plaintiffs;
v.
DEFENDERS, INC., Defendant.

          Brian D. Long, RIGRODSKY & LONG, P.A., Wilmington, DE; Ted E. Trief, Shelly L. Friedland, & Stan Gutgarts, TRIEF & OAK, New York, NY; Peter S. Pearlman, COHN LIFLAND PEARLMAN HERRMANN & KNOPF LLP, Saddle Brook, NJ; Macy D. Hanson, THE LAW OFFICE OF MACY D. HANSON, PLLC, Madison, MS, attorneys for Plaintiffs.

          J. Cory Falgowski, BURR & FORMAN LLP, Wilmington, DE; K. Bryance Metheny, Ronald W. Flowers, Jr., & H. Carlton Hilson, BURR & FORMAN LLP, Birmingham, AL, attorneys for Defendant.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Currently pending before the Court is Plaintiffs' Motion to Conditionally Certify a FLSA Collective Action and Send Notice to the Class. (D.I. 31). The Parties have briefed the issues. (D.I. 32; D.I. 44; D.I. 50). For the following reasons, the Court GRANTS Plaintiffs' Motion.

         I. BACKGROUND

         Plaintiffs are former and current Security Advisors ("SAs") employed by Defendant Defenders, Inc. Plaintiffs filed this action on March 28, 2018. (D.I.I). Plaintiffs seek to recover unpaid overtime under the Fair Labor Standards Act on behalf of:

All Security Advisors employed by Defendant who, at any time during the period beginning three years before the filing of this Complaint up to and including the date of final judgment in this matter, installed homeowner security/alarm systems and/or performed service on those systems for Defendant ("Collective Class").

(D.I. 1 ¶ 23). Plaintiffs filed an Amended Complaint on May 24, 2018, which included an additional five Plaintiffs. (D.I. 19). Currently, three additional SAs have filed written consents, wishing to join this action if it is certified as a collective action ("the Opt-Ins"). (D.I. 32 at 12).

         Together, Plaintiffs and Opt-Ins have worked for Defendant in nine states: Alabama, Delaware, Georgia, Florida, Indiana, Kentucky, Mississippi, Tennessee, and Texas. (Id.).

         Plaintiffs allege that Defendant failed to appropriately calculate and compensate SAs nationwide for time spent in meetings and travel time, resulting in underpayment of overtime due to SAs. (D.I. 32 at 13). Plaintiffs move to conditionally certify and send notice to the following class: "all current and former Security Advisors employed by [Defendant] after March 28, 2015, who worked overtime hours but were not paid overtime wages during all or part of their employment." (D.I. 31-2).

         II. LEGAL STANDARD

         The Fair Labor Standards Act ("FLSA") allows one or more employees to pursue an action in a representative capacity for "other employees similarly situated." Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); 29 U.S.C. § 216(b). FLSA collective actions under § 216(b) require: (1) all plaintiffs to be "similarly situated," and (2) plaintiffs must "opt-in" to the collective action by filing an affirmative consent to join. Statutes of limitations are not tolled for putative members of a FLSA class until they affirmatively "opt-in" to the action. Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 200 (3d Cir. 2011), overruled on other grounds, 569 U.S. 66 (2013). FLSA class certification has two steps: conditional certification and final certification. Halle v. West Penn Allegheny Health Sys., 842 F.3d 215, 223-24 (3d Cir. 2016); Zavala v. Wal-Mart Stores, Inc., 691 F.3d 527, 535 (3d Cir. 2012). If conditional certification is granted at the first stage, the court will order notice to be issued to the proposed class. At the second stage, after discovery has been taken, the court will make "a conclusive determination as to whether each plaintiff who has opted in to the collective action is in fact similarly situated to the named plaintiff." Camesi v. Univ. of Pittsburgh Med. Or., 729 F.3d 239, 243 (3d Cir. 2013).

         At the conditional certification stage, a court must determine whether the named plaintiffs have made a "modest factual showing ... demonstrating] a factual nexus between the manner in which the employer's alleged policy affected him or her and the manner in which it affected the proposed collective action members." Halle, 842 F.3d at 224. The proposed class is "similarly situated" if there are "substantial allegations that the putative class members were together the victims of a single decision, policy or plan." Zavala, 691 F.3d at 535. The Third Circuit has held that conditional "certification ... is only the district court's exercise of its discretionary power to facilitate the sending of notice to potential class members." Symczyk, 656 F.3d at 194 (emphasis added).

         A significant question under the conditional certification analysis is "the extent to which the claims of the putative class can be proven through common evidence, versus individualized testimony." Banks v. Radioshack Corp., 2014 WL 1724856, at *2 (E.D. Pa. Apr. 25, 2014). However, "a defendant's claim or defense that individualized circumstances of employees render the matter unsuitable for collective treatment may be more appropriately reviewed during step two of the certification process." Burkhart-Deal v. Citifinancial, Inc., 2010 WL 457127, at *3 (W.D. Pa. Feb. 4, 2010); see also Charles v. Progressions Behavioral Health Servs., Inc., 2018 WL 4924169, at *5 (E.D. Pa. Oct. 9, 2018) (courts generally grant conditional certification in spite of factual differences); Iva ...


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