United States District Court, D. Delaware
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;
DEFENDERS, INC., Defendant.
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.
Cory Falgowski, BURR & FORMAN LLP, Wilmington, DE; K.
Bryance Metheny, Ronald W. Flowers, Jr., & H. Carlton
Hilson, BURR & FORMAN LLP, Birmingham, AL, attorneys for
ANDREWS, U.S. DISTRICT JUDGE.
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.
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
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
(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).
Plaintiffs and Opt-Ins have worked for Defendant in nine
states: Alabama, Delaware, Georgia, Florida, Indiana,
Kentucky, Mississippi, Tennessee, and Texas. (Id.).
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).
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).
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).
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 ...