United States District Court, D. Colorado
ISABEL VALVERDE; MARIA SONIA MICOL SIMON; and those similarly situated, Plaintiffs,
XCLUSIVE STAFFING, INC.; XCLUSIVE MANAGEMENT, LLC D.B.A. XCLUSIVE STAFFING; XCLUSIVE STAFFING OF COLORADO, LLC; DIANE ASTLEY; OMNI INTERLOCKEN COMPANY, L.L.C.; OMNI HOTELS MANAGEMENT CORPORATION; JMIR DTC OPERATOR LLC; and MARRIOTT INTERNATIONAL, INC. Defendants.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the “Report and
Recommendation on Plaintiffs' Motion for Collective
Certification of their FLSA Claims against all Defendants
Except for HCA-HealthONE LLC (Docket No. 139)” (the
“Recommendation”) (ECF No. 207) recommending that
Plaintiffs' Motion for Collective Certification of their
FLSA Claims against all Defendants Except for HCA-HealthONE
LLC (the “Motion”) (ECF No. 139) be granted.
Defendants have filed an objection (the
“Objection”) (ECF No. 212), to which Plaintiffs
have filed a response (the “Response”) (ECF No.
225). Upon consideration of the Recommendation, Objection,
Response, relevant parts of the record, and the applicable
statutes and case law, and being otherwise fully advised, the
Recommendation is ACCEPTED IN PART and REJECTED IN PART
WITHOUT PREJUDICE, and Defendants' Objection is OVERRULED
IN PART and SUSTAINED IN PART.
parties are well versed with the background of this case, so
it will not be repeated here. (See ECF No. 193,
Order on recommendation on Defendants' Motion to
Dismiss.) At issue now is whether the Court should grant
Plaintiffs' request for conditional certification of
their Fair Labor Standards Act (“FLSA”) claims
against the remaining Defendants,  based on two alleged
policies: (1) the $3.00 deduction policy; and (2) the
30-minute meal deduction policy. The first is the alleged
policy of deducting $3.00 from each employee's paycheck
for the cost of issuing the check, while the second is the
alleged policy of automatically deducting 30 minutes each day
for meal breaks, whether or not employees were allowed to
take them. Discovery has been stayed in this case.
Motion requested the following:
• Conditionally certify their FLSA claims against all
Defendants except HCA-HealthONE LLC under 29 U.S.C. §
216(b), a nationwide certification as to the Xclusive
Defendants (hereafter “Xclusive”), along
with a certification of three subclasses consisting of Hotel
• Order the parties to meet and confer about notice and
its method of distribution;
• Order the production of names and contact information
for members of the conditionally-certified opt-in plaintiffs;
• Issue notice consistent with potential equitable
tolling arguments of the opt-in plaintiffs.
(ECF No. 139, pages 1-2.)
Magistrate Judge recommended the following:
• That the FLSA claim based on the two policies be
conditionally certified as a collective action;
• That such certified opt-in plaintiffs be nationwide,
along with subclasses for the Hotel Defendants;
• That Plaintiffs may send a Hoffman-La
Roche notice to potential opt-in plaintiffs;
• That the best interests of justice may be served by
tolling the statute of limitations for opt-in plaintiffs
during the pendency of a motion for conditional
certification, i.e., from the date in which the
Motion was filed (December 9, 2016) until 90-days after the
opt-in plaintiffs receive notice of this lawsuit; and
• That Defendants be ordered to provide the names and
contact information of potential opt-in plaintiffs.
Dispositive or Nondispositive?
objection assumes the Motion is dispositive, as does the
Recommendation. Plaintiffs contend it is not. The issue has
apparently not been resolved by the Tenth Circuit. On this
record, the Court finds it need not decide as, under either
standard, the Court reaches the same conclusion.
Magistrate Judge correctly set forth the standard for
conditional certification so it need not be repeated. See
Thiessen v. General Electrical Capital Corp., 267 F.3d
1095, 1105 (10th Cir. 2001) (approving the two-step
“ad-hoc” approach). The Court will address and
apply such standards in ruling on the Objection.