White v. MPW Industrial Services, Inc.

236 F.R.D. 363, 2006 U.S. Dist. LEXIS 17388, 2006 WL 752554
CourtDistrict Court, E.D. Tennessee
DecidedMarch 21, 2006
DocketNo. 1:05-CV162
StatusPublished
Cited by75 cases

This text of 236 F.R.D. 363 (White v. MPW Industrial Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. MPW Industrial Services, Inc., 236 F.R.D. 363, 2006 U.S. Dist. LEXIS 17388, 2006 WL 752554 (E.D. Tenn. 2006).

Opinion

MEMORANDUM

MATTICE, District Judge.

Plaintiffs bring this action against Defendant MPW Industrial Services, Inc. (“MPW”), alleging violations of 42 U.S.C. [365]*365§ 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; the Tennessee Human Rights Act, Tenn.Code Ann. §§ 4-21-101 to -905; and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219.

Before the Court is Plaintiffs’ Motion for Conditional Certification of Collective Action and for Court Approved Notice to Members of Collective Class. This motion relates only to Plaintiffs’ claims under the FLSA. Also before the Court is Defendant’s motion to strike portions of certain affidavits and declarations submitted by Plaintiffs in support of their motion.

For the reasons stated below, Plaintiffs’ motion for conditional certification will be GRANTED, and Defendant’s motion to strike will be DENIED.

1. BACKGROUND

A. Factual Background

MPW is a corporation that provides industrial cleaning services. (Court Doc. No. 36, First Am. Compl. H 2.) Plaintiffs work in MPW’s Industrial Cleaning and Facility Maintenance segment and operate out of MPW’s branch location in the St. Elmo area of Chattanooga, Tennessee. (Court Doe. No. 34-1, Pis.’ Mem. 2.) They report to work at the St. Elmo location each morning, receive their work instructions for that day, prepare equipment for use, and drive to the customer location. (First Am. Compl. 116; Pis.’ Mem. 2. ) Plaintiffs then report from the first customer location either to another customer location or to MPW’s branch location. (First Am. Compl. H 6; Pis.’ Mem. 2.) At the end of each day, Plaintiffs return to the branch location to secure their equipment and then leave for their homes. (Pis.’ Mem. 2.) Plaintiffs allege that MPW compensates its employees only for time spent at the customer site and not for time spent at the branch location preparing for the day’s work or for time spent traveling to and from customer sites. (First Am. Compl. H 6.)

Plaintiffs allege that this company-wide policy of failing to compensate employees for all hours worked results in violations of the minimum wage and overtime requirements of the FLSA. (Id.) Plaintiffs seek “conditional certification” of this case as a collective action under 29 U.S.C. § 216(b) and authorization for a notice to be sent to all potential members of the class that may be entitled to relief under the FLSA.

B. Applicable Statutes and Regulations

The FLSA provides that an employer whose employees work longer than 40 hours in any workweek is required to pay such employees time-and-a-half for hours worked in excess of 40. 29 U.S.C. § 207(a)(1). 29 C.F.R. § 785.38 provides that time spent by an employee in travel as part of his “principal activity” — such as travel from job site to job site during the workday — must be counted as hours worked. 29 C.F.R. § 778.315 further provides that employees must be paid straight time compensation for non-overtime hours worked during a workweek and time- and-a-half for overtime hours worked during a workweek.

The FLSA includes several exemptions from its overtime requirements. The exemption at issue in this matter, known as the Motor Carrier Act exemption, is provided for in 29 U.S.C. § 213(b)(1), which states that the overtime requirements of § 207 do not apply to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49.... ” Under 49 U.S.C. § 31502, the Secretary of Transportation has the power to establish requirements for “(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation.”

II. ANALYSIS

The Court will first address the question of whether to conditionally certify a collective action and allow Plaintiffs to send notice of the collective action to putative class members. If the Court conditionally certifies the class, it must then address the substance and scope of the notice.

[366]*366A. Propriety of Sending § 216(b) Notice

1. Requirements for Section 216(b) Opt-in Notice

Section 216(b) of Title 29 of the United States Code provides that an employer who violates § 207 is liable to the employees affected by that violation in the amount of the employees’ unpaid overtime compensation. Section 216(b) also provides that an employee can maintain a lawsuit against his employer in federal court on behalf of himself and other employees who are similarly situated and who choose to “opt in” to the collective action. Courts may facilitate such collective actions under § 216(b) by authorizing notice of the suit to potential plaintiffs. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).

The threshold issue in deciding whether to authorize notice to the proposed class members is whether the Plaintiffs have demonstrated that they and the proposed class members are “similarly situated.” Although some courts have recognized the use of other tests for determining whether Plaintiffs and putative plaintiffs are similarly situated for purposes of § 216(b), the greater weight of authority suggests that a two-step analysis is the proper test. See, e.g., Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1108 (10th Cir.2001); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir.2001); Moeck v. Gray Supply Corp., No. 03-1950(WGB), 2006 WL 42368, at *4 (D.N.J. Jan.6, 2006); Aguayo v. Oldenkamp Trucking, No. CV F 04-6279 ASI LJO, 2005 WL 2436477, at *2-3 (E.D.Cal. Oct. 3, 2005); Mike v. Safeco Ins. Co. of Am., 274 F.Supp.2d 216, 219 (D.Conn.2003); Realite v. Ark Rests. Corp., 7 F.Supp.2d 303, 308 (S.D.N.Y.1998); Belcher v. Shoney’s, Inc., 927 F.Supp. 249, 251 (M.D.Tenn.1996).

The court in Mooney v. Aramco Services Co. described the two-step analysis adopted by most courts:

[T]he trial court approaches the “similarly situated” inquiry via a two-step analysis.

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236 F.R.D. 363, 2006 U.S. Dist. LEXIS 17388, 2006 WL 752554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-mpw-industrial-services-inc-tned-2006.