Basham v. Tailored Living Choices, LLC

• Court: District Court, N.D. California
• Decided: February 16, 2024
• Docket: 4:23-cv-02678
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GENEVIEVE BASHAM, et al., Case No. 23-cv-02678-DMR

8 Plaintiffs, ORDER ON MOTION FOR 9 v. CONDITIONAL CERTIFICATION OF A COLLECTIVE ACTION 10 TAILORED LIVING CHOICES, LLC, Re: Dkt. No. 20 11 Defendant.

12 Plaintiffs Genevieve Basham, Jennifer Raper, and George Pepper, on behalf of themselves 13 and all others similarly situated, bring this wage and hour action against their current and former 14 employer, Tailored Living Choices, LLC. Plaintiffs move for conditional certification of a 15 collective action under the Fair Labor Standards Act (“FLSA”). [Docket Nos. 20, 34.] The court 16 held a hearing on February 8, 2024. For the following reasons, the motion is granted in part.1 17 I. BACKGROUND 18 A. Allegations in the Third Amended Complaint 19 Defendant is a California company that “provides customized care and services for 20 individuals with developmental and mental health disabilities.” [Docket No. 25 (Third Amended 21 Complaint, “TAC”) ¶¶ 16, 17.] Plaintiffs Raper and Pepper work for Defendant as Instructional 22 Assistants (“IA”). Plaintiff Basham worked for Defendant as an IA until June 2022. Id. at ¶¶ 9, 23 11, 13. The primary duties of IAs “include helping clients get dressed and undressed, as well as 24 tending to clients’ bathing, toileting, and oral hygiene, helping clients eat by cutting food into bite- 25 sized pieces and monitoring their meals to mitigate choking risks.” Id. at ¶ 44. 26 27 1 Plaintiffs allege claims under the FLSA and state law, as set forth below.2 With respect to 2 the FLSA claims, Plaintiffs allege that Defendant failed to properly compensate Plaintiffs and 3 other similarly situated employees for all hours worked and failed to pay proper overtime wages. 4 See id. at ¶ 44. Specifically, Plaintiffs Raper, Pepper, and other similarly situated employees 5 “were not compensated for all hours worked while driving to different clients’ houses within the 6 same workday” because they were required to “clock out, drive to another client’s house and clock 7 back in.” Defendant also did not count travel time towards the total hours worked for purposes of 8 calculating and paying overtime. Id. at ¶¶ 49, 55, 179, 185. 9 Plaintiffs allege that Defendant also had a practice, procedure, and/or policy under which it 10 reduced Plaintiffs and other similarly situated employees’ pay for sleep time hours, resulting in 11 inadequate minimum wages. Specifically, Defendant reduced Plaintiffs and other similarly 12 situated employees’ hourly pay by at least $1.00 for eight hours of sleep time for shifts longer than 13 24 hours “without a valid agreement.” Id. at ¶¶ 50, 51. Even if there was a valid agreement, 14 Defendants did not provide adequate sleeping facilities and Plaintiffs and other similarly situated 15 employees were forced to sleep on couches. Id. at ¶ 52. Additionally, Plaintiffs were interrupted 16 during the night once a week to assist their clients’ needs. Id. at ¶ 53. Defendant also maintained 17 a practice of failing to count overnight hours and IHSS hours3 towards Plaintiffs and other 18 similarly situated employees’ total hours worked for the purpose of calculating and paying 19 overtime. As a result, Plaintiffs and other similarly situated employees did not receive all 20 overtime wages despite working more than 40 hours in a workweek. Id. at ¶¶ 54, 57, 179, 185.4 21 2 Plaintiffs’ motion for class certification must be filed by July 1, 2024. [See Docket No. 14.] 22

3 Plaintiffs reference “IHSS hours” in their motion and the TAC but do not define the term or 23 otherwise explain it. In its opposition, Defendant explains that it hires IAs to provide Supported Living Services (“SLS”) to adults with developmental and mental health disabilities in their 24 private homes. Opp’n 1-2 (citing Chakrabarti Decl. Nov. 17, 2024, ¶ 2). IAs provide both SLS and In Home Supportive Services (“IHSS”) to clients. IAs who perform IHSS work are paid 25 directly by “the local county public authority,” with Defendant “paying overtime premiums if the IHHS work results in overtime under the FLSA when considering the combination of SLS and 26 IHSS hours.” According to Defendant, the county pays overtime premiums to IAs when their IHSS hours alone are greater than 40 in one workweek. See Chakrabarty Decl. ¶¶ 3, 4. 27 B. Procedural History 1 Plaintiffs Basham and Raper filed this action in state court in December 2021. [Docket 2 No. 1 (Notice of Removal, “NOR”) ¶ 1.] After Plaintiffs filed an amended complaint, Defendant 3 removed the case to this court in May 2023. Id. at ¶ 3. Plaintiffs filed a second amended 4 complaint by stipulation in September 2023 and subsequently filed the instant motion for 5 conditional certification of a collective action. They filed the TAC, which is the operative 6 complaint, by stipulation in November 2023. The TAC alleges the following claims: 1) failure to 7 pay minimum and regular wages in violation of California Labor Code sections 1194, 1197, and 8 1198; 2) failure to indemnify all necessary expenditures in violation of California Labor Code 9 section 2802; 3) failure to maintain accurate records in violation of California Labor Code sections 10 1174 and 1174.5; 4) failure to provide accurate itemized wage statements in violation of California 11 Labor Code sections 226 and 1198; 5) failure to timely pay all wages due upon separation of 12 employment in violation of California Labor Code sections 201, 202, and 203; 6) violation of 13 California Business and Professions Code section 17200 et seq.; 7) violation of the Private 14 Attorneys General Act of 2004, California Labor Code section 2698 et seq.; 8) failure to pay 15 minimum wages in violation of the FLSA, 29 U.S.C. §§ 201 et seq.; 9) failure to pay overtime 16 compensation in violation of the FLSA, 29 U.S.C. §§ 207, 211 and 216(b). 17 Plaintiffs bring the FLSA claims (claims nine and ten) on behalf of the following proposed 18 collective: 19 All current and former non-exempt employees who worked for 20 Defendants in the State of California in the position of Instructional Assistant at any time from June 29, 2017 through the present. 21 22 TAC ¶ 94. They also seek to represent the following subclass collectives:

23 The Minimum Wage Subclass All members of the FLSA Collective who were not paid at least 24 minimum wage for all hours worked or time spent under the control of Defendants, individually and/or collectively, at any time from June 25

26 reimburse costs for the use of personal cell phone and personal cars to transport patients and travel between work locations. TAC ¶ 58, 59. As a result of these practices, Plaintiffs allege that 27 Defendants did not keep accurate records of the actual hours that Plaintiffs and other similarly 29, 2017, to the present. 1 The Overtime Subclass 2 All members of the FLSA Collective who were not paid overtime pay at a rate of not less than one and one-half times their regular rates of 3 pay after forty hours in a workweek at any time from June 29, 2017, to the present. 4 Id. at ¶ 95. Plaintiffs now move for conditional certification of the collective. Plaintiffs Basham, 5 Raper, and Pepper filed consents to sue under the FLSA with their reply.5 See 29 U.S.C. § 216(b) 6 (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing 7 to become such a party and such consent is filed in the court in which such action is brought.”). 8 [Docket No. 27-1 (Gee Decl. Dec. 1, 2023) ¶¶ 6-8, Exs. 1-3.] 9 II. LEGAL STANDARD 10 The FLSA provides that employees may bring a collective action on behalf of themselves 11 and other “similarly situated” employees. 29 U.S.C. § 216(b). “In contrast to class actions 12 pursuant to Rule 23 of the Federal Rules of Civil Procedure, potential participants in a collective 13 action under the FLSA must ‘opt in’ to the suit by filing a written consent with the court in order 14 to benefit from and be bound by a judgment.” Saleh v. Valbin Corp., 297 F. Supp. 3d 1025, 1028 15 (N.D. Cal. 2017) (citations omitted). “Employees who do not opt in are not bound by a judgment 16 and may subsequently bring their own action.” Id. “Because class members must opt-in, the 17 standards for certifying a conditional FLSA class are considerably less stringent than those for 18 Rule 23 classes.” Brewer v. Gen. Nutrition Corp., No. 11-CV-03587 YGR, 2013 WL 100195, at 19 *2 (N.D. Cal. Jan. 7, 2013) (“Brewer I”). Unlike a Rule 23 class action, “the district court in a 20 collective action plays no . . . gatekeeping role.” Campbell v. City of Los Angeles, 903 F.3d 1090, 21 1101 (9th Cir. 2018). 22 “Determining whether a collective action is appropriate is within the discretion of the 23 district court.” Leuthold v. Destination Am., Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). “[A]n 24 FLSA-specific, fact-intensive inquiry into whether plaintiffs are ‘similarly situated’ governs.” 25 Brewer v. Gen. Nutrition Corp., No. 11-CV-3587 YGR, 2014 WL 5877695, at *14 (N.D. Cal. 26 27 1 Nov. 12, 2014) (citations omitted). The FLSA does not define the term “similarly situated” and 2 the Ninth Circuit has not defined the term. See Campbell, 903 F.3d at 1108. To assess whether 3 plaintiffs are “similarly situated,” courts apply a “two-step approach involving initial notice to 4 prospective plaintiffs, followed by a final evaluation whether such plaintiffs are similarly 5 situated.” Leuthold, 224 F.R.D. at 467 (noting that the two-step approach is preferred); Saleh, 297 6 F. Supp. 3d at 1028-29 (collecting cases); Campbell, 903 F.3d at 1108-09 (describing “loose 7 consensus” regarding two stages). At the first step, the court “makes an initial ‘notice stage’ 8 determination of whether potential opt-in plaintiffs exist who are similarly situated to the 9 representative plaintiffs, and thus whether a collective action should be certified for the purpose of 10 sending notice of the action to potential collective action participants.” Saleh, 297 F. Supp. 3d at 11 1029. “The sole consequence of a successful motion for preliminary certification is the sending of 12 court-approved written notice to workers who may wish to join the litigation as individuals.” 13 Campbell, 903 F.3d at 1101 (citation and quotation marks omitted). 14 “In the second step, the party opposing certification may move to decertify the class once 15 discovery is complete and the case is ready to be tried.” Adams, 242 F.R.D. at 536. At this later 16 stage, the court “makes a factual determination about whether the opt-in plaintiffs are actually 17 similarly situated, by weighing such factors as: (1) the disparate factual and employment settings 18 of the individual plaintiffs; (2) the various defenses available to the defendants with respect to the 19 individual plaintiffs; and (3) fairness and procedural considerations.” Saleh, 297 F. Supp. 3d at 20 1030 (quotation marks and citation omitted). 21 Plaintiffs bear the burden of showing that the plaintiffs are “similarly situated” for 22 purposes of § 216(b). Leuthold, 224 F.R.D. at 466. 23 III. DISCUSSION 24 A. Conditional Certification 25 The Ninth Circuit has explained that “[a]t this early stage of the litigation, the district 26 court’s analysis is typically focused on a review of the pleadings but may sometimes be 27 supplemented by declarations or limited other evidence.” Campbell, 903 F.3d at 1109 (citations 1 allegations, sometimes as turning on a ‘reasonable basis,’ but in any event loosely akin to a 2 plausibility standard, commensurate with the stage of the proceedings.” Id. (cleaned up; citing 3 Camesi v. Univ. of Pittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir. 2013); Anderson v. Cagle’s, 4 Inc., 488 F.3d 945, 953 (11th Cir. 2007)). 5 Here, Plaintiffs seek conditional certification of the following FLSA collective:

6 All current and former non-exempt employees who worked for Defendants in the State of California in the position of Instructional 7 Assistant at any time from June 29, 2017 through the present. 8 Mot. 1. They also seek conditional certification of two subclass collectives:

9 The Minimum Wage Subclass All members of the FLSA Collective who were not paid at least 10 minimum wage for all hours worked or time spent under the control of Defendants, individually and/or collectively, at any time from June 11 29, 2017, to the present.

12 The Overtime Subclass All members of the FLSA Collective who were not paid overtime pay 13 at a rate of not less than one and one-half times their regular rates of pay after forty hours in a workweek at any time from June 29, 2017, 14 to the present. 15 Plaintiffs allege the existence of at least four common policies and practices that resulted in 16 FLSA violations and unpaid minimum or overtime wages: 17 1. Defendant’s policy and practice of failing to include all hours worked during overnight 18 shifts and/or failing to include sleep time and IHSS hours into the calculation of hours 19 worked for overtime purposes; 20 2. Defendant’s policy and practice of paying some of the hours worked in excess of 40 per 21 week at straight time instead of the applicable overtime rate; 22 3. Defendant’s policy and practice of deducting at least $1 from IAs’ regular rate of pay for 23 hours worked during the overnight shifts, which resulted in the miscalculation of the 24 applicable overtime rate; and 25 4. Defendant’s policy and practice of requiring IAs to clock out when traveling between 26 clients’ homes and/or failing to pay IAs for the time spent traveling between work 27 locations. 1 declarations from Plaintiffs Basham and Raper, as well as current and former employees Tyler 2 Lumpkin, Alicia Holmes, Yolanda Murphy, and Raimesha Barnes. [Docket Nos. 20-15 (Basham 3 Decl. Oct. 19, 2023); 20-19 (Raper Decl. Oct. 19, 2023); 20-3 at ECF pp. 2-17 (Lumpkin Decl. 4 Oct. 9, 2023, Holmes Decl. Oct. 11, 2023, Barnes Decl. Oct. 19, 2023); 27-5 (Murphy Decl. Nov. 5 21, 2023).]6 6 The declarants describe similar job duties in the IA position, including transporting clients 7 to and from doctors’ appointments, distributing medication, cooking, cleaning, dressing, and 8 feeding clients. Murphy Decl. ¶ 4; Barnes Decl. ¶ 4; Basham Decl. ¶ 5; Raper Decl. ¶ 5. They 9 describe being interrupted during overnight hours because they were required to assist with their 10 clients’ needs at any time, even if it was during their “sleep time.” Basha Decl. ¶ 27; Raper Decl. 11 ¶ 22; Holmes Decl. ¶ 7; Barnes Decl. ¶ 14. They also do not recall signing agreements permitting 12 Defendant to reduce their rates of pay for overnight shifts. Basham Decl. ¶ 18; Raper Decl. ¶ 18; 13 Murphy Decl. ¶ 8. Several declarants describe receiving a reduced hourly rate for overnight shifts 14 and not having overnight hours counted towards their weekly totals for purposes of overtime. 15 Basham Decl. ¶¶ 20-25; Raper Decl. ¶ 19; Holmes Decl. ¶ 6; Barnes Decl. ¶ 13. Plaintiffs submit 16 evidence of a “Notice to Employee” from Defendant to Basham that lists her hourly rate as 17 “variable.” [Docket No. 20-1 (Cordero Decl. Oct. 20, 2023) ¶ 11, Ex. 4.] 18 Others state they are not paid at overtime rates for overtime work, regardless of when it is 19 performed. Murphy Decl. ¶ 6; Barnes Decl. ¶ 11. Plaintiffs submitted several examples of 20 Basham and Raper’s paystubs indicating that they worked over 40 hours per week and 80 hours 21 every two weeks. Basham Decl. Ex. 1; Raper Decl. Ex. 1. 22

23 6 Defendant objects to Lumpkin’s declaration as irrelevant. It contends that he was terminated over three years ago and therefore lacks personal knowledge of Defendant’s policies and practices 24 during the potential statutory period. Opp’n 9. The court denies this objection as moot as it does not consider Lumpkin’s declaration in connection with deciding this motion. 25

Defendant also object to Murphy’s declaration on the ground that it was signed by a 26 different declarant. Id. As Plaintiffs submitted a signed version of Murphy’s declaration with their reply, the court denies this objection as moot. Defendant also objects to argument in the 27 declaration of attorney Cordero, see id., and to evidence Plaintiffs submitted on reply. [Docket 1 The declarants also state that they had to sleep on couches or in sleeping bags on the floor 2 because there were no sleeping accommodations at their clients’ residences, or that they knew of 3 other IAs that were required to do so. Barnes Decl. ¶ 15; Basham Decl. ¶ 29. The declarants also 4 describe how Defendant required them to travel between locations during the same workday and 5 required them to clock out during their travel. Raper Decl. ¶¶ 26-28; Holmes ¶ 5; Murphy Decl. 6 ¶¶ 10-12; Barnes Decl. ¶ 17. 7 In response, Defendant dispute the merits of Plaintiffs’ FLSA claims, arguing that its 8 hourly rates of pay for overnight shifts and exclusion of overnight hours from overtime 9 calculations are lawful. Opp’n 10-14. It also argues that it had a policy and practice of paying IAs 10 for time spent traveling between locations, although it does not dispute that it required employees 11 to clock out when traveling. Id. at 14-15. Defendant’s arguments do not defeat conditional 12 certification because at this stage, “[i]t is not the court’s role to resolve factual disputes . . . or . . . 13 decide substantive issues going to the ultimate merits.” Saleh, 297 F. Supp. 3d at 1034 (quotation 14 marks and citations omitted). Defendant does not actually challenge the existence of common 15 policies and practices; instead, it challenges the merits of whether those policies and practices 16 resulted in violations of FLSA. For purposes of this motion, Plaintiffs need only “claim a 17 violation of the FLSA” and show that they are “similarly situated.” Campbell, 903 F.3d at 1100. 18 Based on the pleadings, declarations, and the record in this case, Plaintiffs have shown that they 19 are similarly situated to other IAs regarding Defendant’s alleged overtime practices, including the 20 calculation of hours worked and overtime rates and failure to compensate hours worked in excess 21 of 40 per week and 80 per two weeks at overtime rates, as well as Defendant’s policy and practice 22 of requiring employees to clock out when traveling between work locations. Accordingly, 23 Plaintiffs have satisfied their “light” burden that conditional certification is appropriate. See 24 Droesch v. Wells Fargo Bank, N.A., No. 20-cv-06751-JSC, 2021 WL 1817058, at *4 (N.D. Cal. 25 May 6, 2021). 26 B. Scope of the Collective Action 27 Defendant argues that if a collective action is conditionally certified, the scope of the 1 notices. Opp’n 15-16. It argues that Plaintiffs did not address willfulness in their motion and has 2 not plausibly alleged willfulness. Id. 3 FLSA claims for unpaid compensation are governed by a two-year statute of limitations. 4 29 U.S.C. § 255(a). However, “a cause of action arising out of a willful violation may be 5 commenced within three years after the cause of action accrued.” Id. “When plaintiffs allege 6 willfulness, courts routinely approve a three-year notice period.” Saleh, 297 F. Supp. 3d at 1035 7 (cleaned up; citation omitted). Here, Plaintiffs allege that Defendant “intentionally, willfully, and 8 repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA” and that Defendant 9 was aware or should have been aware that the challenged practices were unlawful. TAC ¶¶ 101, 10 181, 188. Plaintiffs also submit evidence that the United States Department of Labor (“DOL”) 11 investigated Defendant from October 2015 through September 2016 and found Defendant to be 12 “in non-compliance” with the FLSA with respect to the payment of weekly overtime. Cordero 13 Decl. ¶ 23, Ex. 9. The DOL calculated Defendant owed over $300,000 in overtime back wages. 14 Id. at 6. This evidence supports Plaintiffs’ allegation of willfulness. At this preliminary stage, the 15 court concludes that Plaintiffs have plausibly alleged willfulness. Accordingly, notice must be 16 provided to all current and former IAs who worked for Defendant within the proposed three-year 17 period. 18 As to the proposed liability period, for individuals who are “specifically named as a party 19 plaintiff in the complaint,” their claims are deemed commenced on the date they file their “written 20 consent to become a party plaintiff . . . in the court in which the action was commenced.” 29 21 U.S.C. § 256. In this case, Plaintiffs Basham, Raper, and Pepper filed consents to sue under the 22 FLSA on December 1, 2023, and Plaintiffs conceded at the hearing that the three-year statute of 23 limitations for Basham, Raper, and Pepper’s FLSA claims ran until December 1, 2023. As to the 24 proposed collective action members, opt-in plaintiffs’ claims are “deemed ‘commenced’ from the 25 date [their] opt-in form[s] [are] filed with the district court.” Campbell, 903 F.3d at 1104 (citing 26 29 U.S.C. § 256).7 Accordingly, the court conditionally certifies a collective action of “all current 27 1 and former non-exempt employees who worked for Tailored Living Choices, LLC in the State of 2 California in the position of Instructional Assistant at any time from December 1, 2020 through 3 the present.” 4 C. Notice 5 “Once a collective class has been conditionally certified, potential FLSA collective 6 members are entitled to ‘accurate and timely notice concerning the pendency of the collective 7 action, so that they can make informed decisions as to whether to participate.’” Droesch, 2021 8 WL 1817058, at *4 (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)). 9 “[T]he form and timing of notice . . . is largely a question of ‘case management,’ and thus [is] a 10 subject of substantial judicial discretion.” Campbell, 903 F.3d at 1110 (internal citation omitted). 11 Plaintiffs submitted a proposed notice to the putative collection action members, opt-in 12 form, and reminder notice and ask the court to rule on these notices in connection with this 13 motion. Cordero Decl. ¶¶ 25-27, Exs. 11 (proposed notice), 12 (proposed opt-in form), 13 14 (proposed reminder notice). Plaintiffs further ask that the court authorize dissemination of the 15 notices via a third-party administrator through mail, email, text message, and a website through 16 which opt-in members can submit consent forms, as well as a reminder postcard to be sent 21 days 17 before the opt-in deadline. They seek a 90-day notice period. Plaintiffs also request that within 14 18 days of the court’s ruling on this motion, Defendant provide to Plaintiffs’ counsel an Excel file 19 containing the (1) full name, (2) job title, (3) dates of employment, (4) last known address, (5) last 20 known cell phone number, (6) location of employment, (7) employee number or ID, (8) social 21 security number (last four digits only) and (9) last known email address for all IAs employed by 22 Defendant during the time period certified by the court. Plaintiffs did not provide details in their 23 motion about the third-party administrator but stated at the hearing that they will meet and confer 24 with Defendant to select an administrator, and that Plaintiffs’ counsel will pay the costs associated 25 with providing notice. 26 Defendants do not object to Plaintiffs’ proposal regarding administration of notice but 27 1 challenge several aspects of Plaintiffs’ proposed notice and opt-in form, as follows: 2 First, the proposed notice includes a statement that “[i]f there is no recovery, you will not 3 be required to pay Plaintiffs’ attorneys for any of their fees or costs.” Proposed Notice 2. 4 Defendants argue that this provision should also state that potential collective action members may 5 be liable for payment of costs to Defendant should it prevail in the action. Opp’n 17-18 (citing 6 Labrie v. UPS Supply Chain Sols., Inc., No. C08-3182 PJH, 2009 WL 723599, at *8 (N.D. Cal. 7 Mar. 18, 2009) (ordering parties to include “a statement explaining that potential plaintiffs may 8 share in liability for payment of costs if [the defendant] prevails in this action” in order “to provide 9 potential plaintiffs a ‘fair statement of their rights.’” (citation omitted)). At the hearing, Plaintiffs’ 10 counsel stated that counsel will pay all taxable costs in the event that Defendant prevails. 11 Accordingly, the notice need not contain language that costs could be assessed against members of 12 the collective action. 13 Next, the proposed notice includes the following statement about the statute of limitations:

14 The FLSA has time limits called statutes of limitations. These limitations stop running when you join a lawsuit. If you do not 15 join the lawsuit or start your own lawsuit, your limitations period will continue to run and eventually your right to bring an action 16 may be time barred. Keep this in mind when making your decision on how to proceed. 17 18 Proposed Notice 3. Defendants contend that the last sentence of the foregoing paragraph is an 19 attempt “to try and scare potential plaintiffs and persuade them into joining the action” and lacks 20 neutrality and asks the court to strike the final sentence. Opp’n 18. The court agrees that the 21 statement is not sufficiently neutral. See Hoffman-La Roche, 493 U.S. at 174 (“[i]n exercising the 22 discretionary authority to oversee the notice-giving process, courts must be scrupulous to respect 23 judicial neutrality. To that end, trial courts must take care to avoid even the appearance of judicial 24 endorsement of the merits of the action.”). The last sentence of the paragraph about the statute of 25 limitations shall be stricken from the notice. 26 Next, the proposed notice states that “[a]dditional information can be obtained by 27 contacting the Plaintiffs’ lawyers listed below” and provides the contact information for Plaintiffs’ 1 be so one-sided and to exclude defense counsel’s contact information.” Opp’n 18. The notice 2 shall include contact information for Plaintiffs’ counsel and defense counsel along with clear 3 language explaining that Plaintiffs’ counsel seek to represent employees and defense counsel 4 represents Tailored Living Choices, LLC. 5 Defendant also challenges a portion of the proposed notice’s anti-retaliation provision, 6 which states:

7 It is a violation of federal law for TLC to discriminate in any manner, or to retaliate against your for taking part in this case. If you believe 8 that you have been penalized, discriminated against, or disciplined in any way as a result of your receiving this notice, considering whether 9 to join this lawsuit, or actually joining this lawsuit, you should contact an attorney. 10 11 Proposed Notice 4. Defendant argues that the final sentence should be stricken because 12 encouraging potential plaintiffs to contact a lawyer is beyond the scope of the notice’s purpose. 13 Opp’n 19. Defendant’s objection is well-taken. The purpose of the notice is to provide potential 14 plaintiffs “with a neutral discussion of the nature of, and their rights in” this action. See Adams v. 15 Inter-Con Sec. Sys., Inc., 242 F.R.D. 530, 540 (N.D. Cal. 2007). The last sentence of the 16 foregoing provision shall be stricken from the notice. 17 Finally, Defendant notes typographical errors in the proposed notice and opt-in form, set 18 forth in the chart below in bold. Plaintiff shall revise these materials to correct the following 19 errors: 20 21 Plaintiffs’ Proposed Notice with Typo Corrections 22 “On [INSERT DATE], the federal Northern “On [INSERT DATE], the federal Northern 23 District Court of California overseeing this District Court of California overseeing this 24 case granted “conditional certification” for the case granted “conditional certification” for the 25 case to proceed as a “collective action” and case to proceed as a “collective action” and 26 direct that notice of…” Proposed Notice at p. directed that notice of…” 27 1. 1 contend that they properly paid Instructional contends that they properly paid Instructional 2 Assistants under the Fair Labor Standards Assistants under the Fair Labor Standards 3 Act.” Proposed Notice at p. 2. Act.” 4 “…it must be postmarked no later than [insert “…it must be postmarked no later than [insert 5 date 90 days from mailing]. To be considered date 90 days from mailing] to be considered 6 timely.” Proposed Notice at p. 2. timely.” 7 “You will be compensated for their fees and “You will be compensated for their fees and 8 costs either by receiving a portion of the costs either by receiving a portion of the 9 recovery of by a separate payment by TLC (or recovery or by a separate payment by TLC (or 10 a combination of the two),” Proposed Notice a combination of the two),” 11 at p. 2. 12 “If you choose to choose to submit the “If you choose to submit the Consent Form 13 Consent Form electronically,…” Proposed electronically,” 14 Notice at p. 3. 15 “It is a violation of federal law for TLC to “It is a violation of federal law for TLC to 16 discriminate in any manner, or to retaliate discriminate in any manner, or to retaliate 17 against your for taking part in this case.” against you for taking part in this case.” 18 Proposed Notice at p. 3. 19 “I WANT TO JOIN THE WAITLIST…” “I WANT TO JOIN THE LAWSUIT…” 20 Proposed Opt-In Form at p. 1. 21 22 IV. CONCLUSION 23 For the foregoing reasons, Plaintiffs’ motion for conditional FLSA collective action 24 certification is granted in part. The court conditionally certifies the following collective action: 25 “All current and former non-exempt employees who worked for Tailored Living Choices, LLC in 26 the State of California in the position of Instructional Assistant at any time from December 1, 27 2020 through the present.” 1 administrator to effect notice via mail, email, text message, and a website. Within seven days of 2 || the date of this Order, Plaintiffs shall submit for the court’s approval a revised proposed notice, 3 opt-in form, and reminder notice incorporating the changes as ordered herein. Within 14 days of 4 || the date of this Order, the parties shall submit a joint statement identifying the agreed-upon 5 administrator and setting forth the methods of effecting notice. By the same deadline (14 days of 6 || the date of this Order), Defendants shall provide to Plaintiffs’ counsel an Excel file containing the 7 (1) full name, (2) job title, (3) dates of employment, (4) last known address, (5) last known cell 8 || phone number, (6) location of employment, (7) employee number or ID, (8) social security 9 number (last four digits only) and (9) last known email address for all IAs employed by Defendant 10 at any time from December 1, 2020 to the present. <5 DISTR 7 S 11 CG ON IT IS SO ORDERED. 13 Dated: February 16, 2024 i sO 14 LA □□ 15 2 Pork wna RYE □□ 11¢ A ate 5 5 □□ ' Mab) rd = □□ 16 oe □□□ Lay LY 17 DISTRICS Z 18 19 20 21 22 23 24 25 26 27 28