Mejias v. Banco Popular de Puerto Rico

86 F. Supp. 3d 84, 2015 U.S. Dist. LEXIS 20627, 2015 WL 671762
CourtDistrict Court, D. Puerto Rico
DecidedFebruary 18, 2015
DocketCivil No. 13-1880 (PAD)
StatusPublished
Cited by2 cases

This text of 86 F. Supp. 3d 84 (Mejias v. Banco Popular de Puerto Rico) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mejias v. Banco Popular de Puerto Rico, 86 F. Supp. 3d 84, 2015 U.S. Dist. LEXIS 20627, 2015 WL 671762 (prd 2015).

Opinion

OPINION AND ORDER

DELGADO-HERNÁNDEZ, District Judge.

Plaintiffs initiated this action on their behalf and on behalf of other similarly situated individuals against Banco Popular de Puerto Rico, Popular Inc., Banco Popular North America n/k/a Popular Community Bank, Carlos J. Vázquez and Richard Carrion (“BPPR”), claiming entitlement to compensation for time worked under the Fair Labor Standards Act, 29 U.S.C. § 201 [85]*85et seq., and the Puerto Rico Wage Payment Statute, P.R. Laws Ann. tit. 29 § 271 et seq. Id. at ¶¶ 8 — ll.1 Before the Court is plaintiffs’ “Motion to Conditionally Certify a Collective Action and Facilitate Notice Pursuant to 29 U.S.C. § 216(b) & Request for Oral Argument” (Docket No. 43). For the reasons discussed below, the Court grants plaintiffs’ request for conditional certification and denies as unnecessary their request for oral argument.

I. BACKGROUND

Plaintiffs claim BPPR implemented a company-wide practice across all of its Puerto Rico branches forcing hourly employees to work before and after their shifts, without recording or compensating them for that time (Docket No. 3).2 They allege the unpaid time worked by each plaintiff is substantial, and posit that defendants knew of this situation but failed to properly pay plaintiffs for all time actually worked. Id. at ¶¶ 19-28.

Plaintiffs have moved for an Order to conditionally certify this case as a collective action and facilitating notice pursuant to 29 U.S.C. § 216(b) on behalf of all individuals who were employed or are currently employed by BPPR in Puerto Rico and the U.S. Virgin Islands as hourly paid, non-exempt, bank tellers or other similarly titled positions at any time during the relevant limitations period (Docket No. 43). They also sought approval for a proposed “Notice and Opt-in Consent Form,” and requested an order for defendants to “produce a computer-readable data file containing the names, addresses and telephone numbers of such potential, opt-in members so that notice may [be] issued” (Docket No. 45 at p. 11). BPPR has opposed plaintiffs’ motions (Docket No. 47).

II. STANDARD OF REVIEW

Pursuant to the FLSA, an employee may bring suit against an employer on his or her own behalf and on behalf of other “similarly situated” employees. 29 U.S.C. § 216(b). Neither the Supreme Court nor the First Circuit has addressed the exact contours of the concept .of “similarly situated.” Other Circuits have not drawn bright lines for determining whether employees are “similarly situated” either. The general practice of district courts within the First Circuit, has been to adopt a ‘two-tiered’ approach to certification of collective actions under the FLSA. See, Pérez v. Prime Steak House Restaurant Corp., 959 F.Supp.2d 227, 231 (D.P.R.2013) (so noting).

The first stage is known as the “notice stage.” In this stage, “the Court relies upon the pleadings and any affidavits to determine, under a ‘fairly lenient standard,’ whether the putative class members ‘were subject to a single decision, policy, or [86]*86plan that violated the law.’ ” Id. Other courts have variously described the first stage as “not particularly stringent,” “fairly lenient,” “flexible,” and “not heavy.” Johnson v. VCG Holding Corp., 802 F.Supp.2d 227, 234 (D.Me.2011) (so noting). At the second stage, which takes place after discovery, “a defendant may move for de-certification if the plaintiffs are shown not to be similarly situated.” Id.

From that perspective, this case is in the notice phase. As such, plaintiffs carry the burden of showing “similarly situated” putative-class members. Pérez, 959 F.Supp.2d at 231. To do so, they must make “a minimal factual showing that (1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are similarly situated to the plaintiff in relevant respects given the claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit” (emphasis added).

III. DISCUSSION

A careful evaluation of the pleadings and the documents attached to plaintiffs’ motion confirms plaintiffs have met their burden of showing a reasonable basis from which the Court can conclude that aggrieved individuals employed at BPPR’s different branches exist. There is enough material to infer that plaintiffs performed similar uncompensated, pre and post shift job duties. Their statements point towards similar employment experiences and observations involving activities constituting compensable work. The fact that they do not have identical job duties or pay provisions do not alter this conclusion. See, Prescott v. Prudential Ins. Co., 729 F.Supp.2d 357, 363 (D.Me.2010) (noting that courts typically look to whether employees have similar (not identical) job duties and pay provisions and are victims of a common policy or plan that violated the law, to determine whether the first prong is met).

More specifically, the complaint and statements under penalty of perjury made by Nieves, Crespo and Quiles include information about their duties and responsibilities as hourly workers, and the various activities constituting work not recorded nor compensated by BPPR. They have sufficiently shown that they and other employees, with similarly but not necessarily identical jobs, were subjected to a shared work experience: BPPR’s failure to record, compensate or account for all the time that plaintiffs worked pre and post shifts.

As to pre-shift time, plaintiffs claim BPPR uniformly instructed plaintiffs to “clock in” only after they had completed numerous pre-shift tasks. The time devoted to pre-shifted actions was not recorded by BPPR and, thus, was not paid. Correspondingly, at the end of the shift plaintiffs had to “clock out” after concluding a schedule but were not permitted to leave the premises until, i.e., their cash drawer was balanced and fully reconciled. Similar examples have been provided as to the purportedly inaccurate compensation/registration of lunch time. In line with those allegations and exhibits, the Court is satisfied that plaintiffs have met the threshold of showing both aggrieved individuals and similarly-situated persons sufficient to be considered class members.

BPPR has submitted brief summaries of the plaintiffs’ work for BPPR three years before the complaint, to show the amount of hours worked by them and prove that they did not work weekly overtime or the highest reported weekly hours. But it is precisely the lack of adequate recording or compensation of tasks performed off-the-clock by plaintiffs what is being questioned. Records showing the amount of [87]*87hours documented by BPPR serve no purpose at this stage.

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86 F. Supp. 3d 84, 2015 U.S. Dist. LEXIS 20627, 2015 WL 671762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mejias-v-banco-popular-de-puerto-rico-prd-2015.