UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brooks Barber
v. Case No. 21-cv-742-SE Opinion No. 2022 DNH 129 Bauer Hockey, LLC
O R D E R
Brooks Barber filed a putative collective action on behalf
of himself and similarly situated employees and former employees
of Bauer Hockey, LLC (“Bauer”), alleging violation of the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and New
Hampshire state law. Barber seeks conditional certification of a
collective action pursuant to 29 U.S.C. § 216(b) of the FLSA.1
Doc. no. 18. Bauer objects. Because Barber has met his burden to
show that the proposed members of the collective are similarly
1 In the introduction to his motion for conditional certification, Barber states that he seeks certification of a collective of himself “and similarly situated former employees” who worked without pay during the relevant furlough period. Doc. no. 18 at 1. Barber clarified in his reply that he seeks a collective that includes similarly situated current and former Bauer employees who worked without pay during the furlough period. Doc. no. 21 at 1 n.1 As discussed herein, Barber’s proposed definition of the collective is not limited to former employees, and Bauer’s objection interprets Barber’s proposed collective to include both current and former Bauer employees. See doc. no. 20-1 at 20-21. situated enough to receive notice of this action, the court
grants Barber’s motion.2
Standard of Review
The FLSA provides that an employer who violates provisions
of the Act is liable to its employee or employees for their
unpaid minimum wages or overtime compensation, along with other
relief. § 216(b). An employee may bring an action on behalf of
himself “and other employees similarly situated.” Id. Employees
who want to be party plaintiffs may join in a collective action
to enforce their rights under the FLSA. Id.; Tyson Foods, Inc.
v. Bouaphakeo, 577 U.S. 442, 448 (2016); Clark v. Capital Vision
Servs., LLC, No. 22-cv-10236-DJC, 2022 WL 2905356, at *1 (D.
Mass. July 22, 2022). Unlike class actions under Federal Rule of
Civil Procedure 23, FLSA collective actions require similarly
situated employees to opt in rather than opt out of the action.
Tyson Foods, 577 U.S. at 449; Clark, 2022 WL 2905356, at *1.
Courts have addressed the certification process for
collective actions under § 216(b) in two stages. See Campbell v.
City of Los Angeles, 903 F.3d 1090, 1108-10 (9th Cir. 2018);
2 Although Barber also brought New Hampshire law claims as a putative class action under Federal Rule of Civil Procedure 23, he explicitly excludes those claims from his motion for conditional certification. See doc. no. 18 at 10-11 n.4. Therefore, the court does not address class certification under Rule 23 in this order.
2 Moreau v. Medicus HealthCare Solutions, LLC, No. 20-cv-1107-JD,
2021 WL 919869, at *1 (D.N.H. Mar. 10, 2021) (citing cases). The
first stage, preliminary or conditional certification, which is
at issue here, allows “the sending of court-approved written
notice to employees . . . who in turn become parties to a
collective action only by filing written consent with the
court.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75
(2013). The court’s consideration of conditional certification
“entails a lenient review of the pleadings, declarations, or
other limited evidence . . . to assess whether the proposed
members of a collective are similar enough to receive notice of
the pending action.” Waters v. Day & Zimmermann NPS, Inc., 23
F.4th 84, 89 (1st Cir. 2022) (quotation omitted).
“Later, when discovery is complete, an employer may move to
decertify the collective action. This is the ‘second’ stage, and
the court must then make a factual determination as to whether
there are similarly-situated employees who have opted in.” Camp
v. Bimbo Bakeries USA, Inc., No. 18-cv-378-SM, 2019 WL 440567,
at *2 (D.N.H. Feb. 4, 2019). At this second stage, the court
considers the “factual and employment settings of the individual
plaintiffs, the different defenses to which the plaintiffs may
be subject on an individual basis, and the degree of fairness
and procedural impact of certifying the action as a collective
action.” Id. “If the court finds then that employees are not
3 ‘similarly situated,’ it will decertify the class and dismiss
the opt-in plaintiffs without prejudice.” Id.
Such factual inquiries are specifically reserved for the
second stage of the certification inquiry. Id. At the first
stage, “plaintiffs bear the light burden of demonstrating that
there is a reasonable basis for their claim that there are other
similarly situated employees.” Id. The standard is satisfied by
“making a modest factual showing or asserting substantial
allegations that the putative class members were together the
victims of a single decision, policy, or plan that violated the
law.” Clark, 2022 WL 2905356, at *2 (quotation omitted). Because
the standard is lenient, that determination “typically results
in conditional certification.” Id.
Background
Bauer makes and sells ice hockey equipment. Barber worked
at Bauer as part of the Elite Athlete Services (“EAS”) team from
the summer of 2016 until February 24, 2021. Beginning on April
13, 2020, Bauer put Barber and other employees, including other
members of the EAS team, on furlough without pay because of the
COVID-19 pandemic. Management, supervisory employees, and team
members who were not furloughed continued to operate Bauer.
Bauer continued to provide the furloughed employees with
benefits and cellphone service during that period. Bauer
4 restricted the furloughed employees from using their Bauer
emails and Bauer electronic systems, except their cellphones.
However, Barber alleges that Bauer instructed the furloughed
employees to back up their business contacts on their cellphones
to allow them to continue to work and to communicate with
athletes and teams on Bauer’s behalf. Barber also alleges that
management and supervisory employees contacted him and directed
him to complete work during the furlough period, without
compensation.
In addition, Barber claims that other furloughed employees
told him they were doing work for Bauer while they were
furloughed. For example, one employee purportedly told Barber
that he was fielding a number of work-related inquiries during
the furlough. Another employee said that Bauer’s marketing
director asked him to do a skate fitting for a Bauer athlete
while the employee was furloughed, and that the marketing
director assured him that completing work for Bauer during the
furlough would not present any issues.
Discussion
Barber contends that Bauer violated the FLSA by not
compensating him and other similarly situated furloughed
employees. He moves for conditional certification of a
collective, defined as follows:
5 All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer’s benefit, and who elect to join this action pursuant to 29 U.S.C. § 216(b).
Doc. no. 18 at 2. He also asks that the court permit him to send
notice, as provided in an exhibit attached to his motion (doc.
no. 18-1), to potential plaintiffs, and seeks approval of the
proposed opt-in form for potential plaintiffs (doc. no. 18-2).
Bauer objects to conditional certification of the proposed
collective. In support, it contends that Barber has not shown
that Bauer had a common practice to have furloughed employees
work without compensation. Bauer contends that Barber has not
identified similarly situated employees or those who are willing
to join the action and has not shown that Bauer subjected the
proposed collective to a common decision, plan, or policy.
I. Conditional Certification
Before the court considers whether Barber has met the
necessary burden for conditional certification of the
collective, it must address the parties’ apparent disagreement
over the requested collective’s definition. As mentioned above,
Barber seeks certification of the following collective:
All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer’s
6 benefit, and who elect to join this action pursuant to 29 U.S.C. § 216(b).
In arguing against certification of the collective, Bauer
consistently describes the proposed collective as consisting of
(at most) only eight Bauer employees, all of whom are or were
members of the EAS team. See doc. no. 20-1 at 6 (“By Plaintiff’s
own definition, the proposed FLSA Class consists of only eight
(8) employees . . . .”); id. at 20 (“Barber’s request to send
notice to the eight (8) Putative Class Members should be
denied.).
As Barber notes, Bauer admits in its answer that it
furloughed employees who were not a part of the EAS team. Doc.
no. 21 at 11 n.9 (citing doc. no. 4, ¶ 26). Barber’s definition
of the proposed collective, by its plain language, is not
limited to EAS team members. Instead, it encompasses any Bauer
employee who performed work while furloughed during the relevant
period. Therefore, the court will consider whether Barber has
made the necessary showing as to all Bauer employees who
otherwise fit the proposed collective as defined.3
3 To the extent Bauer’s argument is based on the notion that only EAS team members were furloughed during the relevant period, the veracity of that contention will be revealed through discovery.
7 B. Barber’s Showing
Barber’s declaration in support of his motion for
conditional certification provides an outline of the team
structure at Bauer and details about his work as a member of the
EAS team. Barber states that during the furlough, management and
supervisory employees at Bauer knew that he completed work for
Bauer and sent him text messages on his Bauer cellphone that
directed or caused him to continue to do work. Barber also
asserts that he has received information from other furloughed
EAS team members that they were directed by managers and
supervisors to work during the furlough period and provides
specific examples in support of those allegations.
Bauer contends in response that Barber’s statements in his
declaration are insufficient to support conditional
certification. Instead, Bauer contends that Barber is required
to provide “concrete ‘evidence that the legal claims and factual
characteristics of the class . . . are similar.’” Doc. no. 20-1
at 10 (quoting Trezvant v. Fidelity Employer Servs. Corp., 434
F. Supp. 2d 40, 44 (D. Mass. 2006)). It further argues that
conditional certification is inappropriate because the court
would need to engage in a “class member-specific fact finding”
and “conduct a highly individualized assessment of each Putative
Class Member’s furlough experience to determine whether in fact
any Putative Class Members are similarly situated.” Doc. no. 20-
8 1 at 17. For those reasons, Bauer asserts that Barber has not
made the necessary showing for conditional certification.
Bauer overstates the burden that plaintiffs bear when
seeking conditional certification of a collective. Trezvant does
not, as Bauer asserts, require “concrete” evidence of similarity
at this stage. Instead, consistent with other courts in the
First Circuit, Trezvant requires only “some evidence.” 434 F.
Supp. 2d at 44.
Barber has met his burden at this early stage. He alleges
that he and other furloughed Bauer employees worked with Bauer’s
knowledge and that Bauer managers and supervisors directed the
employees to work during the furlough period. He also alleges
that this work was done without pay. He has supported those
allegations in the form of his sworn declaration.4
Moreover, Bauer’s argument that certification is
inappropriate because it requires an excessive and inappropriate
individualized assessment of potential members of the collective
is misplaced. The proposed collective includes Bauer employees
4 Bauer argues that the court should not consider Barber’s declaration because it includes “rank hearsay,” which presumably refers to the information other employees provided to Barber. Doc. no. 20-1 at 12-13. The court need not resolve that issue at the preliminary certification stage because the evidentiary standards applicable to the evidence in support of summary judgment do not apply here and to apply them would defeat the purpose of the two-step certification process. See, e.g., Gorie v. Amazon.com Servs., LLC, No. 20-CV-01387, 2021 WL 4304281, at *3 (N.D. Ohio Sept. 22, 2021).
9 who: 1) were furloughed for roughly a four-month period in 2020
and 2) performed work for Bauer’s benefit without being paid
while on furlough. The court disagrees that conditional
certification of that collective requires the type of detailed,
member-specific analysis that Bauer claims is necessary. See,
e.g., Camp, 2019 WL 440567, at *4; O’Connor v. Oakhurst Dairy,
No. 2:14-CV-00192-NT, 2015 WL 2452678, at *3 (D. Me. May 22,
2015). That is especially the case here, where Bauer has
provided little to no discovery regarding potential collective
members.
Bauer raises additional arguments against certification,
including that Barber failed to solicit other employees to join
this suit before seeking to certify the collective action. As
the court noted in Camp, whether a plaintiff seeking conditional
certification is required first to identify additional
individuals who are interested in joining the action “is an
issue on which there is substantial debate, even among district
courts in this circuit.” 2019 WL 440567, at *3 (comparing
cases). The court in Camp stated that, on “balance, the court
agrees that it is premature to require plaintiffs to
demonstrate, before notice is given, that there are other
potential members of the collective who are interested in
participating in this litigation.” Id. The court agrees that, in
light of a plaintiff’s “light” burden at this stage of the
10 litigation, Barber was not required to recruit collective
members prior to conditional certification.
In addition, Bauer argues that Barber cannot establish that
members of the proposed collective were subject to a common
unlawful policy or practice because there is no dispute that the
FLSA permits employers to furlough employees on a temporary
basis. In other words, Bauer contends that because it lawfully
furloughed employees, it had no unlawful policy or practice.
That argument misses the mark. Barber’s complaint does not
challenge the legality of Bauer’s actions in furloughing certain
employees. Instead, it alleges that Bauer knew or should have
known that furloughed employees were completing work for Bauer’s
benefit during that time without being compensated. Thus,
Bauer’s argument that Barber failed to allege that members of
the proposed collective were subject to a common unlawful policy
or practice because the FLSA permits furloughs is a red herring.
Bauer also contends that there is no collective to be
certified because other furloughed Bauer employees waived their
rights to pursue FLSA claims. Specifically, Bauer asserts that a
month after Barber filed this case, the EAS team employees who
were furloughed signed, at Bauer’s request, a waiver of rights
under the FLSA and a release in favor of Bauer with respect to
11 the claims asserted in this action in return for a lump sum
payment. Doc. no. 20-1 at 19; Doc. no. 20-4, ¶¶ 19 & 20.
However, waiver and release of rights under the FLSA by
employees has long been disfavored. Barrentine v. Arkansas-Best
Freight Sys., Inc., 450 U.S. 728, 740 (1981). Thus, the court
declines, at this early stage, to conclude that other furloughed
Bauer employees are precluded from joining a § 216(b) collective
action because of the waivers and releases they signed.5
At this preliminary stage, Barber has sufficiently made the
required showing that there are other similarly situated Bauer
employees to support conditional certification. Specifically, he
has alleged and provided some evidence of a common plan or
policy by Bauer to permit or require furloughed employees,
including Barber, to work without pay with managers’ or
supervisors’ knowledge or direction. Bauer’s arguments to the
contrary, which largely focus on factual issues that it contends
should preclude certification, are better addressed in the
second stage of the litigation after discovery has taken place
and if and when Bauer moves to decertify the collective.
5 Further, Barber states only that other EAS team members waived their rights under the FLSA. As discussed above, the proposed collective is not limited to EAS team members and, therefore, Bauer’s argument is inapposite in any event.
12 II. Notice
With the issue of conditional certification decided, there
remain the issues of the scope of the collective and the content
of the notice.
A. Scope of the Collective
As discussed above, Barber asks the court to approve notice
to the collective defined as:
All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer’s benefit, and who elect to join this action pursuant to 29 U.S.C. § 216(b).
In addition to arguing that the collective is or should be
limited to EAS team members, an argument that the court has
addressed above, Bauer argues that the collective should be
confined to employees who were or are located in the United
States. In support, it contends that the court lacks
jurisdiction over Bauer’s Canadian employees.
Bauer’s jurisdictional argument is “seemingly non-
frivolous.” Camp, 2019 WL 440567, at *4 n.2. But such a
jurisdictional “issue requires additional briefing from the
parties and can be addressed by the court once a proper notice
has been issued and all potential members of the collective have
been identified.” Id. Therefore, the collective defined by
13 Barber, pertaining to all Bauer employees who worked during the
furlough period without pay, will receive notice.
In order to send notice to potential collective plaintiffs,
Barber asks the court to order Bauer to identify all potential
members of the defined collective within 15 days of the date of
this order, with their names, mailing addresses, email
addresses, telephone numbers, work locations, and dates of
employment. Barber proposes to send notice and the opt-in form
by mail, email, and text message; to give the potential
collective members 90 days from receipt of the notice to return
the opt-in form; and to send a reminder by the same means as
notice after 45 days.
Bauer objects to the notice Barber proposes and asks the
court to order counsel to confer regarding a revised joint
notice. As examples of the problems with the proposed notice,
Bauer asserts that the means of notice should not include text
messages absent a compelling reason, that a third-party
administrator should be appointed to avoid giving Barber’s
counsel “unfettered” access to Bauer’s employees’ contact
information, that the notice period is too long and should not
include a reminder, and that the notice improperly fails to
notify prospective collective members that they could be liable
for the costs of the case. Barber filed a reply but did not
respond to Bauer’s objections to the proposed notice.
14 Some of the issues Bauer raises regarding Barber’s proposed
notice have been the subject of recent decisions regarding
conditional certification under § 216(b), with mixed results.
For example, certain cases support notice by text message
because of the mobility of today’s society. See, e.g., Njoroge
v. Primacare Partners, LLC, No. 22-0425-BAH, 2022 WL 4465894, at
*7 (D. Md. Sept. 26, 2022). Others, however, require a showing
that regular mail and email have not been effective before
allowing notice by text message. See, e.g., Cates v. Alliance
Coal, LLC, No. 21-CV-377-SMY, 2022 WL 4485477, at *3 (S.D. Ill.
Sept. 27, 2022) Further, although a 90-day timeframe for
potential collective members to respond is common, see, e.g.,
Washington v. Freedom of Expression LLC, No. CV-21-01318-PHX-
MTL, 2022 WL 4615033, at *4 (D. Ariz. Sep. 30, 2022), some
courts have ordered less time, see, e.g., Cates, 2022 WL
4485477, at *3 (allowing 60 days for potential collective
members to respond to notice despite the plaintiff’s request for
90 days). Similarly, courts have allowed reminders in some cases
but not in others. Wells v. Cmty. Health Sys., Inc., No. 3:21-
CV-00865, 2022 WL 4377116, at *6 (M.D. Tenn. Sept. 22, 2022)
(noting that “district courts . . . across the country are split
as to whether reminder notices to potential class members are
proper in FLSA actions” (quotation and alteration omitted)).
15 Other issues that Bauer raises with the proposed notice
appear to have merit or require the parties to confer. For
example, in FLSA actions, courts generally have required, as
Bauer requests, that notice to opt-in plaintiffs include
information that they could share liability for costs if the
defendant prevails in the case. See, e.g., Spencer v. DMD Mgt.,
Inc., No. 1:21CV1698, 2022 WL 2734387, at *4 (N.D. Ohio July 14,
2022). In addition, courts have allowed a third-party
administrator when the parties agree that procedure is
necessary. Chapman v. Saber Healthcare Grp., LLC, No. 2:20CV106,
2022 WL 3686477, at *12 (E.D. Va. Aug. 25, 2022); Njoroge, 2022
WL 4465894, at *7; Davine v. Golub Corp., No. 14-30136-MGM, 2015
WL 12966278, at *1 (D. Mass. June 11, 2015). Thus, Bauer is free
to seek Barber’s consent to have a third-party administrator
gather the contact information and disseminate the notices in
this case. However, because a protective order would likely
accommodate Bauer’s concerns about confidentiality of contact
information, Bauer has not yet shown that a third-party
administrator is required.
In light of the issues Bauer raises, the parties shall
confer about the notice procedure and attempt to reach a joint
proposal. If the parties are unable to reach a joint proposal,
despite their best good faith efforts to do so, they shall file
separate notice proposals, with citations to authority
16 supporting the provisions they request. The court will then
issue an order for notice.
Conclusion
For the foregoing reasons, the plaintiff’s motion for
conditional certification of a collective action pursuant to
§ 216(b) (document no. 18) is granted, with the exception of the
requested notice procedure.
The following collective is conditionally certified:
All individuals who were employed by Bauer Hockey, LLC furloughed beginning on or about April 13, 2020 through on or about June 8, 2020 and did not receive minimum wage for all work completed for Bauer’s benefit, and who elect to join this action pursuant to 29 U.S.C. § 216(b).
The parties shall confer about the notice to be provided to
the conditionally certified collective. On or before November 8,
2022, counsel shall file a joint proposed notice to the
collective, or if necessary, separate proposed notices, as is
provided above.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge
October 18, 2022
cc: Counsel of record