United States District Court, D. Colorado
NANCY CHAVEZ, MARGARITA HERRERA, and ANA MARIA PEINADO-NOVOA, on behalf of themselves and all others similarly situated, Plaintiffs,
EXCEL SERVICES SOUTHEAST, INC., EXCEL SERVICES NETWORK, INC., and JAMES DAVID SAXTON, Defendants.
ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION AS A COLLECTIVE ACTION
CHRISTINE M. ARGUELLO, District Judge.
In this motion, Plaintiffs Nancy Chavez, Margarita Herrera, and Ana Maria Peinado-Novoa ask this Court to: (1) certify this case as a Fair Labor Standards Act (FLSA) collective action pursuant to 29 U.S.C. § 216(b); (2) approve notice of this action for distribution to the conditionally certified opt-in class; (3) order distribution of the Court's approved notice; and (4) order the production of names and addresses of members of the conditionally-certified opt-in class. This Court grants the motion to certify and directs the parties to confer and agree on both the content for the notice and the details of its distribution.
Plaintiffs are former employees of Defendants Excel Services Southeast and Excel Services Network. Both companies provide residential and commercial cleaning services. They allege Defendants violated federal and state hourly wage laws by paying them according to a flat-percentage compensation formula, which generally provided them-at most-with around a quarter of the gross revenue received from a home the worker cleaned. In brief, Plaintiffs allege that this formula did not accurately record their wages and failed to take into account minimum and overtime wage rates as calculated under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and the Colorado Minimum Wages of Workers Act, Colo. Rev. Stat. § 8-6-101, et seq.
Plaintiffs have filed the instant case as a collective action on behalf of themselves and all others similarly situated, pursuant to under 29 U.S.C. § 216(b). They have defined their proposed class as:
All current and former cleaners employed by Defendants between December 6, 2010 and December 6, 2013 who were paid a flat percentage of gross revenue and/or were not paid for time spent traveling between work sites during the work day.
(Doc. # 1, ¶ 88.)
Under § 216(b), the two requirements for FLSA collective actions are that every Plaintiff must: (1) be "similarly situated" and (2) give written consent to take part in the suit. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir. 2001). Although FLSA does not define "similarly situated, " "[g]enerally, where putative class members are employed in similar positions, the allegation that defendants engaged in a pattern or practice of not paying overtime is sufficient to allege that plaintiffs were together the victims of a single decision, policy or plan." Underwood v. NMC Mortgage Corp., 245 F.R.D. 720, 723 (D. Kan. 2007).
At this early stage of the litigation, if Plaintiffs seek to proceed as a collective action:
a court typically makes an initial notice stage determination of whether plaintiffs are "similarly situated." In doing so, a court requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan. At the conclusion of discovery (often prompted by a motion to decertify), the court then makes a second determination, utilizing a stricter standard of similarly situated.
Thiessen, 267 F.3d at 1102-03 (internal references and quotation marks omitted; alterations incorporated). Further, Plaintiffs must surpass a "low threshold" to demonstrate that they are similarly situated at the initial notice stage determination outlined in Thiessen. Underwood, 245 F.R.D. at 723.
Plaintiffs allege that they are able to provide "substantial allegations" that the putative class members were together victims of a single policy-namely, the same flat-percentage compensation formula. They detail roughly the same violations alleged in the amended complaint in the form of affidavits submitted to this Court. (Doc. # 11-2, 11-3, 11-4); see also Renfro v. Spartan Computer Servs., Inc., 243 F.R.D. 431, 432 (D. Kan. 2007) (noting that submitting affidavits is appropriate for the initial notice stage for a FLSA collective action).
This Court finds that the allegations of the complaint and affidavits satisfy the "low threshold" for establishing substantial similarity at the initial notice stage of the proceedings. Plaintiffs' declarations all allege (and Defendants do not dispute) that the percentage-rate policy was uniformly applied across the two companies, that Plaintiffs saw pay stubs from other employees that showed the same payment structure, and that this policy applied regardless of where Plaintiffs worked in the Denver metro area. While there might be questions about whether the flat-rate policy always led to violations of FLSA, Plaintiffs' allegations that the formula yielded violations is sufficient for purposes of this early stage of the litigation. Accord Hobbs v. Tandem Envtl. Solutions, Inc., No. 10-1204-KHV, 2011 WL 484194 (D. Kan. Feb. 7, 2011).
Finally, the parties raise some disputes as to the content and method of distribution of the notice. The Court summarizes ...