Byard v. Verizon West Virginia, Inc.

287 F.R.D. 365, 2012 U.S. Dist. LEXIS 152814, 2012 WL 5249159
CourtDistrict Court, N.D. West Virginia
DecidedOctober 24, 2012
DocketCivil Action No. 1:11CV132
StatusPublished
Cited by33 cases

This text of 287 F.R.D. 365 (Byard v. Verizon West Virginia, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byard v. Verizon West Virginia, Inc., 287 F.R.D. 365, 2012 U.S. Dist. LEXIS 152814, 2012 WL 5249159 (N.D.W. Va. 2012).

Opinion

MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 105]

IRENE M. KEELEY, District Judge.

Before the Court is the plaintiffs’ motion for conditional certification of a collective action and the implementation of a court-facilitated notice plan (dkt. no. 105). For the reasons discussed below, the plaintiffs’ motion is GRANTED IN PART on the terms set forth in this Order.

I.

This is an action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. The plaintiffs, and the class they propose to represent, are current and former employees of Verizon West Virginia Inc., Frontier West Virginia Inc., and Verizon Services Corp. (collectively “the defendants”) working in customer service positions at the call centers located in Clarksburg and Charleston, West Virginia. The named plaintiffs currently work or previously worked as Consultants, tasked with taking-incoming calls from customers, answering customer service related inquiries, and making sales. They allege that the defendants regularly failed to compensate them for time worked in excess of forty (40) hours per week in violation of the FLSA.

The plaintiffs specifically allege that the defendants required them to engage in certain “preliminary and post-liminary” work activities without compensation. These activities include booting up and logging into the computer system, opening software applications, reading daily company e-mails and [368]*368intranet messages, and setting up “call backs” and performing other “follow up” work for customers. In addition, the plaintiffs claim that the defendants’ policy of “rounding” their compensable time to the nearest quarter of an hour uniformly benefits the defendants up to fourteen (14) minutes per day.

On July 3, 2012, the plaintiffs filed a motion for conditional certification of a collective action and the implementation of a court-facilitated notice plan. (Dkt. No. 105). The matter has now been fully briefed and is ripe for review.

II.

Under the FLSA, employees may maintain a collective action on behalf of themselves and “other employees similarly situated.” 29 U.S.C. § 216(b). Putative plaintiffs who wish to join an FLSA collective action are required to “opt in” by filing a written consent form with the Court. Id. Certification of a collective action is appropriate where the class members (1) are “similarly situated” and (2) opt-in to the pending action. Romero v. Mountain Farms, Inc., 796 F.Supp.2d 700, 705 (E.D.N.C.2011); see also Felix De Asencio v. Tyson Foods, Inc., 130 F.Supp.2d 660, 662 (E.D.Pa.2001) (“The only two requirements ... under the FLSA are that class members be similarly situated and that each member file a consent to joining the action.” (citation omitted)).

District courts generally take a two-step approach to certification of FLSA collective actions. Cleary v. Tren Services Inc., No. 2:11-123, 2012 WL 1189909, at *3 (S.D.W.Va. Apr. 9, 2012); see also Nolan v. Reliant Equity Investors, LLC, No. 3:08-62, 2009 WL 2461008, at *7 (N.D.W.Va. Aug. 10, 2009) (collecting cases). The “notice” or “conditional certification” stage comes first. This stage typically occurs early in the proceedings, before discovery is completed. Cleary, 2012 WL 1189909, at *3. Accordingly, “the Court need only reach a preliminary determination that potential plaintiffs are ‘similarly situated.’ ” Patton v. Thomson Corp., 364 F.Supp.2d 263, 267 (E.D.N.Y.2005) (citations omitted). If the court finds that the plaintiffs have cleared this “low bar,” Westfall v. Kendle Intern., CPU, LLC, No. 1:05-00118, 2007 WL 486606, at *9 (N.D.W.Va. Feb. 15, 2007), it will conditionally certify the class and, if appropriate, “authorize[] plaintiffs’ counsel to provide the putative class members with notice of the lawsuit and their right to opt-in.” Romero, 796 F.Supp.2d at 705 (citing Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir.2001)).

The second stage of the inquiry occurs if the defendant moves to “decertify” the class, which generally takes place after discovery is completed and the matter is ready for trial. Cleary, 2012 WL 1189909, at *3; see also Nolan, 2009 WL 2461008, at *7. “At that point, the court makes a factual determination as to whether the class is truly ‘similarly situated.’” Purdham v. Fairfax Cty. Pub. Schools, 629 F.Supp.2d 544, 547 (E.D.Va. 2009) (citing Parker v. Rowland Express, Inc., 492 F.Supp.2d 1159, 1164 (D.Minn. 2007)). As the court typically has “much more information on which to base its decision” at this stage, Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir.2001) (citation omitted), it “applies a heightened, fact specific standard to determine whether the proposed class members are similarly situated.” Cleary, 2012 WL 1189909, at *3 (citations omitted).

III.

Here, the plaintiffs have moved for conditional certification of a collective action. The defendants do not dispute that conditional certification is appropriate under 29 U.S.C. § 216(b); however, they request that the Court narrow the plaintiffs’ proposed class.

A.

The pending motion concerns only the first step of the certification process. At this stage, the plaintiffs bear the burden of demonstrating “the existence of a putative class of ‘similarly situated’ persons.” Purdham, 629 F.Supp.2d at 548. Plaintiffs are similarly situated to a proposed class when, collectively, they were victims of “a single decision, policy, or plan that violated the law.” Nolan, 2009 WL 2461008 at *7 (quot[369]*369ing Reeves v. Alliant Techsystems, Inc., 77 F.Supp.2d 242, 247 (D.R.I.1999)); see also De Lunar-Guerrero v. North Carolina Grower’s Ass’n, Inc., 338 F.Supp.2d 649, 654 (E.D.N.C. 2004) (“plaintiffs must raise a similar legal issue as to coverage, exemption, or nonpayment or minimum wages or overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions” (citation omitted)). In other words, the named plaintiffs must demonstrate some sort of “factual nexus” that connects their claims to the other putative plaintiffs “as victims of an unlawful practice.” Sharpe v. APAC Customer Services, Inc., No. 09-cv-329, 2010 WL 135168, at *4 (W.D.Wis. Jan. 11, 2010). The situations of the named plaintiffs and the putative class “need not be identical.” De Luna-Guerrero, 338 F.Supp.2d at 654 (citation omitted).

The plaintiffs’ burden at this stage has been described as “minimal,” Lynch v. United Servs. Auto. Ass’n, 491 F.Supp.2d 357, 367-68 (S.D.N.Y.2007), and “lenient.” Yeibyo v. E-Park of DC, Inc., et al., No. 2007-1919, 2008 WL 182502, at *7 (D.Md. Jan. 18, 2008).

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