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Williams v. G4s Secure Solutions (USA) Inc.

United States District Court, M.D. North Carolina

January 24, 2018

ALEXANDRIA WILLIAMS, on behalf of herself and all others similarly situated, Plaintiffs,
v.
G4S SECURE SOLUTIONS (USA) INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., District Judge

         Presently before this court is Plaintiff's Motion for Notice and Conditional Certification. (Doc. 15.) Defendant G4S Secure Solutions (USA) Inc. (“G4S”) has responded (Doc. 22) and Plaintiff has replied (Doc. 26). This matter is ripe for adjudication and, for the reasons stated herein, this court will grant Plaintiff's Motion.

         After this motion was fully briefed, Plaintiff filed an Amended Complaint, (Doc. 27), and Defendant filed an Answer. (Doc. 28.) Although this court did not grant Plaintiff leave to file said Amended Complaint, Defendant's Answer will be construed as consent to its filing and the Amended Complaint will be permitted and considered the operative complaint.

         I. BACKGROUND

         Plaintiff Alexandria Williams (“Williams”) was employed as a security officer for Defendant G4S. (Amended Complaint (“Am. Compl.”) (Doc. 27) ¶ 14.) G4S employs security officers “throughout the United States, including in North Carolina, to provide on-site security services to its clients.” (Id. ¶ 12.) Williams brought this collective action alleging that she and other security officers were harmed by G4S's “practice of failing to accurately record work time and pay its employees for all hours worked, including overtime premiums.” (Id. ¶ 16.) Alongside her Complaint, Williams filed opt-in forms from four similarly situated security officers. (Complaint (“Compl.”), Ex. 2, Consent to Join Litigation (Doc. 1-2) at 1-4.) These opt-in forms were incorporated by reference in Williams' Amended Complaint. (Am. Compl. (Doc. 27) ¶ 49.)

         Apart from these consent forms, and alongside her Motion for Notice and Conditional Certification, Williams also filed declarations from herself and two of the putative opt-in class members. (See generally Pl.'s Mem. in Supp. of Mot. for Notice and Conditional Certification (“Pl.'s Mem.”), Ex. 1, Alexandria Williams Decl. (“Williams Decl.”) (Doc. 16-1); Ex. 3, Alastair Nicholson Decl. (“Nicholson Decl.”) (Doc. 16-3); Ex. 4, Scott Praley Decl. (“Praley Decl.”) (Doc. 16-4).) These security officers each declare that, pursuant to G4S pay and timekeeping policies, they were regularly uncompensated for pre- and post-shift work, resulting in deprivation of overtime premiums and/or non-payment for the entirety of overtime hours worked. (See Williams Decl. (Doc. 16-1) ¶¶ 4-11; Nicholson Decl. (Doc. 16-3) ¶¶ 5-12; Praley Decl. (Doc. 16-4) ¶¶ 5-12.)

         Williams now moves for conditional certification of a Fair Labor Standards Act (“FLSA”) collective action to include all security officers who have worked for G4S during the last three years at one or more of the following client sites: Google Data Center in Lenoir, North Carolina; Whiting Turner in Lenoir, North Carolina; J.E. Dunn in Lenoir, North Carolina; Frye Hospital in Hickory, North Carolina; Fiserv in Hickory, North Carolina; Mission Hospital in Asheville, North Carolina; and General Electric in West Jefferson, North Carolina. (Am. Compl. (Doc. 27) ¶ 15; Pl.'s Mem. (Doc. 16) at 11-12.)

         II. LEGAL STANDARD

         The FLSA provides that an action for unpaid overtime wages can be brought “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, ” but that “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 29 U.S.C. § 216(b); see also Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 758 (4th Cir. 2011).

         “Courts employ a two-stage certification procedure for FLSA collective actions.” Solais v. Vesuvio's II Pizza & Grill, Inc., No. 1:15CV227, 2016 WL 1057038, at *5 (M.D. N.C. Mar. 14, 2016); see also Kirkpatrick v. Cardinal Innovations Healthcare Solutions, No. 1:16CV1088, 2017 WL 3841858, at *4 (M.D. N.C. Sept. 1, 2017). During conditional certification, which is the first stage, the court determines whether the employees' claims are similar enough to merit the distribution of court-approved notice to possible class members.[1] Kirkpatrick, 2017 WL 3841858, at *4; see also Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989) (“[D]istrict courts have discretion, in appropriate cases, to implement . . . § 216(b) . . . by facilitating notice to potential plaintiffs.”).

         The plaintiff bears the burden of demonstrating that notice is appropriate. See, e.g., Purdham v. Fairfax Cty. Pub. Schs., 629 F.Supp.2d 544, 548 (E.D. Va. 2009), aff'd, 637 F.3d 421 (4th Cir. 2011). “Conditional certification is appropriate when it would serve judicial efficiency, and the court must be mindful that granting conditional certification expands the scope of the litigation and begins a process of class-wide discovery.” Kirkpatrick, 2017 WL 3841858, at *4 (citations omitted). The “similarly situated” requirement, “although certainly not a ‘rubber-stamp approach, ' remains relatively modest.” Adams v. Citicorp Credit Servs., Inc., 93 F.Supp.3d 441, 453 (M.D. N.C. 2015) (citation omitted). While parties generally “have minimal evidence at this point in the proceedings[, ] . . . [m]ere allegations will not suffice; some factual evidence is necessary.” Id. (citations omitted) (second alteration in original). That evidence must tend to show that there exists a “common policy, scheme, or plan” that violates the FLSA, but it “need not . . . enable the court to determine conclusively whether a class of similarly situated plaintiffs exists, and it need not include evidence that the company has a formal policy of refusing to pay overtime.” Id. (citation omitted). The class certification determination “is ‘usually based only on the pleadings and any affidavits that have been submitted' during the initial stages of litigation.” Cerrato v. Durham Pub. Schs. Bd. of Educ., No. 1:16CV1431, 2017 WL 2983301, at *5 (M.D. N.C. Mar. 17, 2017) (quoting Mooney v. Aramco Servs., Co., 54 F.3d 1207, 1214 (5th Cir. 1995)). “At this stage, ‘the Court does not resolve factual disputes, decide substantive issues on the merits, or make credibility determinations.'” Kirkpatrick, 2017 WL 3841858, at *4 (citation omitted).

         III. ANALYSIS

         G4S opposes conditional certification on primarily two grounds. First, it argues that Williams has only made conclusory allegations and has failed to make a factual showing that a similarly situated group of plaintiffs exists. (Def.'s Mem. of Law in Opp'n to Pl.'s Mot. for Notice and Conditional Certification (“Def.'s Mem.”) (Doc. 22) at 8.) Specifically, G4S asserts that Williams has not identified an actual G4S policy, has not offered any evidence of policies at four of the identified G4S client sites, and fails to acknowledge unique factual issues at various G4S client sites. (Id. at 8-12.)

         As noted above, plaintiffs seeking conditional certification are not required to conclusively establish that a formal policy which violates the FLSA exists. Adams, 93 F.Supp.3d at 453; Kirkpatrick, 2017 WL 3841858, at *4. Instead, a plaintiff's “evidence must tend to show that there exists a ‘common policy, scheme, or plan' that violates the FLSA[.]” Kirkpatrick, 2017 WL 3841858, at *4 (citation omitted). But see Grayson v. K Mart Corp.,79 F.3d 1086, 1095 (11th Cir. 1996) (articulating an even lower standard, holding that “a unified policy, plan, or scheme of discrimination may not be required to satisfy the more liberal ...


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