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Thompson v. Applied Staff Augmentation Partners, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

October 30, 2019

JACK THOMPSON, individually and on behalf of all others similarly situated,, Plaintiff,


          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER is before the Court on Plaintiff's Motion for Conditional Certification and Court-Authorized Notice). (Doc. No. 21). Defendant Applied Staff Augmentation Partners, Inc., (“ASAP”) responded in opposition (Doc. No. 22), and Plaintiff replied (Doc. No. 24). For the reasons that follow, the motion is DENIED.

         Also pending before the Court is Defendant's Motion for Summary Judgment (Doc. No. 39), filed in the midst of discovery in this matter. In light of the Court's ruling below regarding conditional certification and the Court's modification of deadlines, the Court DENIES Defendant's motion without prejudice to be refiled at the close of discovery.

         Turning to Plaintiff's motion, Plaintiff seeks conditional certification under the Fair Labor Standards Act (“FLSA”) of a collective defined as:

All current and former employees of ASAP who were, at any point in the last 3 years, paid the same hourly rate for all hours worked, including those over 40 hours in a workweek.

(Doc. No. 21, p. 9). Defendant ASAP opposes conditional certification on several grounds, arguing individual employment agreements, some of which contain guaranteed weekly salary minimums, mandatory arbitration agreements, and/or a class action waiver, indicate the proposed collective is not sufficiently similarly situated and subjected to a common unlawful policy.

         Collective actions are a tool, distinct from class actions, to allow “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources” and benefits the judicial system “by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity.” Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1983). “Certification, ” however, is unnecessary for actions to proceed as collective actions under FLSA pursuant to 29 U.S.C. § 216(b).

It is evident from the statute that workers may litigate jointly if they (1) claim a violation of the FLSA, (2) are “similarly situated, ” and (3) affirmatively opt in to the joint litigation, in writing. [29 U.S.C. § 216(b).] It is evident also that the “right” to litigate jointly has two permutations: The statute refers to “[t]he right ... to bring an action by or on behalf of any employee, ” and to “the right of any employee to become a party plaintiff to any such action, ” id.-that is, the right to bring the collective litigation and the right to join it. But the statute specifies little else. It does not prescribe terms for the resulting proceeding. It does not provide a definition of “similarly situated, ” on which access to the collective mechanism typically turns. It does not establish a process for evaluating the propriety of a collective proceeding as litigation unfolds-for example, it makes no mention of “certification” or “decertification” of a collective action. And it says nothing about the standard the district court should apply when the collective mechanism is challenged.

Campbell v. City of Los Angeles, 903 F.3d 1090, 1100 (9th Cir. 2018). The Fourth Circuit has also acknowledged the distinction between class actions under Rule 23 of the Federal Rules of Civil Procedure and 29 U.S.C. § 216(b):

This action only concerned claims under the FLSA. Unlike Rule 23, section 216(b) does not require a district court to notify potential claimants about a proposed settlement. See Campbell v. City of Los Angeles, 903 F.3d 1090, 1112 (9th Cir. 2018) (“The statutory requirements of a collective action are independent of, and unrelated to, the requirements for class action under Rule 23.” (internal quotation marks omitted)); Behr v. Drake Hotel, 586 F.Supp. 427, 430 (N.D. Ill. 1984) (“29 U.S.C. § 216(b) contains no provision which prohibits or permits the sending of notice to potential claimants.”). Actions under § 216 and Rule 23 “are mutually exclusive and irreconcilable.” LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975).

Haskett v. Uber Techs., Inc., No. 19-1116, 2019 WL 3208437, at *1 (4th Cir. July 16, 2019) (affirming district court's order and judgment that approved a settlement agreement without providing notice to members of the collective).

         As recognized by the Ninth Circuit in Campbell,

[M]uch of collective action practice is a product of interstitial judicial lawmaking or ad hoc district court discretion. In particular, although nothing in section 216(b) expressly compels it, it is now the near-universal practice to evaluate the propriety of the collective mechanism-in particular, plaintiffs' satisfaction of the “similarly situated” requirement-by way of a two-step “certification” process. See 1 McLaughlin on Class Actions § 2:16 (14th ed. 2017). As this process most often functions, plaintiffs will, at some point around the pleading stage, move for “preliminary certification” of the collective action, contending that they have at least facially satisfied the “similarly situated” requirement. [Id.] Later, after the necessary discovery is complete, defendants will move for “decertification” of the collective action on the theory that the plaintiffs' status as “similarly situated” was not borne out by the fully developed record. Id.
“Preliminary certification” of an FLSA collective action-also known as “provisional” or “conditional” certification-is an example of the confusion sown by the Rule 23 analogy. The term “certification” calls to mind an affirmative decision by the district court, as in the Rule 23 context, to allow a collective action to go forward. See Fed.R.Civ.P. 23(c)(1)(A). Yet, unlike in the Rule 23 context, the district court in a collective action plays no such gatekeeping role. Preliminary certification in the FLSA context does not “produce a class with an independent legal status[ ] or join additional parties to the action.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). “The sole ...

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