Recinos-Recinos v. Express Forestry, Inc.

233 F.R.D. 472, 2006 U.S. Dist. LEXIS 3119, 2006 WL 220050
District Court, E.D. Louisiana·Decided January 30, 2006·No. No. Civ.A. 05-1355·Published·Cited by 7 cases

Opinion

ORDER AND REASONS

AFRICK, District Judge.

Before the Court are two motions filed on behalf of plaintiffs, Hugo Martin Recinos-Recinos, Pablo Recinos-Alvarado, and Alberto Alvarado: 1) a motion for certification of a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure,1 and 2) a motion for conditional certification of a collective action.2 For the reasons set forth below, both motions are GRANTED.

Background

Plaintiffs are migrant agricultural workers who were admitted into the United States to work pursuant to the H-2B temporary foreign worker visa program.3 Defendants, Express Forestry, Inc., Rick Thomas, and Sandy Thomas, operate a tree planting service which bids on and negotiates contracts to plant trees on land owned by other individuals and companies.4

Plaintiffs seek to recover on behalf of themselves and all others similarly situated for alleged violations of their rights pursuant to the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”), 29 U.S.C. §§ 1801-1871, and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219.5 Plaintiffs allege that they were employed in the forestry operations of defendants at various times from April, 1999, through the date of the filing of their complaint.6

Plaintiffs filed this lawsuit challenging defendants’ failure to comply with the record keeping, wage statement and wage payment provisions of the AWPA and the FLSA.7 With respect to their FLSA claim, plaintiffs allege that they and similarly situated H-2B workers were not paid the federal minimum wage for all hours worked, that they were not paid for time waiting and preparatory work, and that they were paid by piece, i.e., for each tree planted, rather than by the hour. Plaintiffs .identify a class of all non-supervisory workers admitted as H-2B temporary foreign workers who were employed by defendants between April, 2002, and the present.

With respect to their AWPA class action, plaintiffs propose that the class consists of “all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed by defendants in any capacity from April 1999 until the date of filing of the present action.”8 Plaintiffs believe the proposed class will' consist of about 300 members.9 Plaintiffs also propose a subclass, represented by Hugo Martin Recinos-Recinos, consist[476]*476ing of “all those individuals admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(B), who were employed by the Defendants in any capacity from April 1999 until the date of filing of the present action who pledged collateral with the defendants’ agents in order to obtain employment with the defendants.”10

Law and Analysis

I. Plaintiffs’ Collective Action Pursuant to the FLSA

Plaintiffs move for preliminary certification of the claims set forth in count II of their complaint as an FLSA collective action pursuant to 29 U.S.C. § 216(b).11 Plaintiffs hope to represent all non-supervisory workers admitted as H-2B temporary foreign workers pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii)(b), who were employed by the defendants between April 6, 2002, and the present.12 Plaintiffs additionally move for an order requiring defendants to produce the names, last known addresses and telephone numbers, if any, of the potential opt-in plaintiffs.

The FLSA provides that employees may bring an action against an employer on behalf of “similarly situated” employees.13 29 U.S.C. § 216(b). Such an action is commonly referred to as a “representative action” or a “collective action.” See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir.1995) (discussing the Age Discrimination in Employment Act which incorporates section 16(b) of the FLSA). A collective action requires putative plaintiffs to opt-in to the litigation rather than opt-out. Id.

Defendants do not object to the conditional certification of plaintiffs’ FLSA collective action, nor do they contend that plaintiffs are not similarly situated.14 Defendants also concede that they should produce the names, addresses, and telephone numbers of the current and former employees eligible to opt-in to the collective action. However, defendants propose that following some discovery, the Court should reevaluate whether plaintiffs are similarly situated for the purpose of this collective action. Defendants further request that the Court craft the notice that will be sent to members of the putative class such that upon defendants’ filing a motion to de[477]*477certify, an informed decision can be made as to whether plaintiffs are similarly situated.

In Mooney v. Aramco Services Co., the Fifth Circuit outlined a “two-stage” collective action process such as the one urged by defendants. Id. at 1213. First, the court conditionally certifies the class followed by notice to potential class members. Id. at 1213-14. Second, defendants may file a motion to decertify if they believe they can persuade the court that the members of the putative class are not similarly situated. Id. at 1214.

Defendants’ opposition focuses on the content and form of the notice and the consent-to-sue form to be issued to potential plaintiffs. Defendants do not contend that plaintiffs’ proposed notice is inadequate.

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Recinos-Recinos v. Express Forestry, Inc., 233 F.R.D. 472, 2006 U.S. Dist. LEXIS 3119, 2006 WL 220050 (E.D. La. 2006).

233 F.R.D. 472 (Recinos-Recinos v. Express Forestry, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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